Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGED CARE AMENDMENT (IMPLEMENTING CARE REFORM) BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the Minister for Aged Care,
the Hon Anika Wells MP)
AMENDMENTS TO AGED CARE AMENDMENT (IMPLEMENTING CARE
REFORM) BILL 2022
OUTLINE
The Aged Care Amendment (Implementing Care Reform) Bill 2022 amends the Aged Care
Act 1997 (Aged Care Act) to implement a series of urgent measures that will give older
Australians the dignity and respect they deserve.
These amendments are intended to enable meaningful, practical improvements to the delivery
of aged care services and to provide greater oversight and understanding of what funds are
being used for. These measures put the quality of care and safety of older Australians first.
Amendments to Schedule 1
Schedule 1 of the Bill amends the Aged Care Act to establish a new responsibility for
approved providers of residential care and certain kinds of flexible care (specified in the
Quality of Care Principles 2014 (Quality of Care Principles)) to ensure that a registered nurse
(within the meaning of the Health Insurance Act 1973) is on site and on duty (that is, 24 hours
each day, 7 days each week) at all times at each residential facility that they operate.
The Government amendments to Schedule 1 provide additional clarity on arrangements that
the Quality of Care Principles must make provision for in relation to the granting of an
exemption from the new responsibility. This includes identifying the Secretary as the decision
maker in respect to any exemption (whether made on application or otherwise), matters the
Secretary must consider when granting an exemption and that any exemption must not be
granted for a period exceeding 12 months. The amendments also provide for the publication
of exemptions that are granted.
Reviewability of Decision to Grant an Exemption
The Quality of Care Principles will be amended to provide for a decision of the Secretary to
grant an exemption to be a reviewable decision for the purposes of the Aged Care Act.
Item 59 to the table in section 85-1 of the Aged Care Act allows for decisions under
Principles made under section 96-1 (including the Quality of Care Principles) to be a
reviewable decision, where that is specified in the Principles concerned.
Financial Impact Statement
Nil.
Consultation
These amendments respond to matters raised through the Senate Community Affairs
Legislation Committee inquiry into the Aged Care Amendment (Implementing Care Reform)
Bill 2022 [Provisions].
1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
AGED CARE AMENDMENT (IMPLEMENTING CARE REFORM) BILL 2022
This Bill 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 Bill
The purpose of the Aged Care Amendment (Implementing Care Reform) Bill 2022 is to
amend the Aged Care Act 1997 (Aged Care Act) to effect meaningful changes to the delivery
of aged care services and the means for care recipients and their families to assess the relative
quality of service delivery by care providers and at individual care facilities.
Schedule 1 - Registered nurses
Schedule 1 to the Bill creates a new responsibility in the Aged Care Act for approved
providers of residential care and certain kinds of flexible care (as specified in the Quality of
Care Principles 2014 (Quality of Care Principles)) to have a registered nurse (within the
meaning of the Health Insurance Act 1973) on site and on duty at all times (that is, 24 hours
each day, 7 days each week) at each residential facility they operate.
The new responsibility will complement existing approved provider responsibilities in aged
care legislation, including maintaining an adequate number of appropriately skilled staff to
ensure the care needs of care recipients are met, and to provide such care and services as are
specified in the Quality of Care Principles.
Human rights implications
Schedule 1 - Registered nurses
Schedule 1 to the Bill engages the right to health in article 12 of the International Covenant on
Economic, Social and Cultural Rights (ICESCR) and article 25 of the Convention on the
Rights of Persons with Disabilities (CRPD).
Right to health
These articles refer to the right of individuals, including persons with disability, to the highest
attainable standard of physical and mental health. Schedule 1 promotes the right to health by
explicitly requiring and strengthening the obligation for quality health services to be made
available to care recipients of residential care at all times.
Conclusion
The Bill is consistent with human rights as it promotes the rights of older Australians. To the
extent that the Bill may limit human rights this is reasonable, necessary and proportionate to
protect the rights of older Australians.
[Circulated by the authority of the Minister for Aged Care, the Hon Anika Wells MP]
2
AMENDMENTS TO AGED CARE AMENDMENT (IMPLEMENTING
CARE REFORM) BILL 2022
NOTES ON CLAUSES
Schedule 1 - Registered nurses
Amendment (1) - Schedule 1, item 2, page 3 (line 26) to page 4 (line 6)
Amendment (1) omits subsection 54-1A(4) in Schedule 1 of the Bill to substitute new
subsection 54-1A(4).
New subparagraphs 54-1A(4)(a)(i) and (ii) provide that the Quality of Care Principles 2014
(Quality of Care Principles) made for the purposes of subsection 54-1A(3) must provide for
circumstances in which an exemption to the new requirement in subsection 54-1A(2)
(Registered Nurse requirement) may be granted by the Secretary. It also requires that the
Quality of Care Principles provide that before granting such an exemption, the Secretary must
be satisfied that the provider has taken reasonable steps to ensure that the clinical care needs
of the care recipients in the facility will be met during the period for which the exemption is
in force. The Secretary would also have the ability to delegate this power under subsection
96-2 of the Aged Care Act 1997 (Aged Care Act).
New subparagraph 54-1A(4)(a)(ii) ensures that the intention of the legislation, being that
older Australians living in residential aged care receive the clinical care they need, is at the
centre of any decision made to grant an exemption to this important requirement.
New paragraph 54-1A(4)(b) provides that an exemption granted to an approved provider in
relation to the new Registered Nurse requirement must not be in force for more than
12 months. Exemptions are not intended to be a permanent and setting a 12-month maximum
period for an exemption will ensure that exemptions are regularly reviewed.
New subparagraph 54-1A(4)(c) provides that more than one exemption may be granted to an
approved provider in relation to the facility. This means that, should an exemption expire
following the 12 month period (or other period specified in the exemption), the approved
provider would be able to reapply for a new exemption on the same or different grounds.
New paragraph 54-1A(4)(d) contains only minor amendments and has a similar effect to
previous paragraph 54-1A(4)(c).
New subsection 54-1A(5) provides that if an approved provider is granted an exemption by
the Secretary in relation to the Registered Nurse requirement, the Secretary must make
publicly available information about the exemption, including:
• the name of the provider and the facility; and
• the period for which the exemption is in force; and
• any conditions that apply to the exemption; and
• any other information of a kind specified in the Quality of Care Principles.
3
It is appropriate to make this information public, as it is anticipated this will further
incentivise providers to meet the requirement, rather than seek an exemption. It will also
increase transparency, providing older people and their families with information about
whether approved providers have a registered nurse on site and on duty 24 hours a day 7 days
a week and ensure they can make more informed decisions about their care.
4
Index]
[Search]
[Download]
[Bill]
[Help]