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Australian Parliamentary Joint Committee on Human Rights |
Bills
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Purpose
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This bill seeks to amend various Acts relating to aged care, health and
aged care pricing, and information sharing in relation to
veterans and military
rehabilitation and compensation
Schedule 1 would enable the introduction of the Australian National Aged
Care Classification, to replace the Aged Care Funding Instrument
as the
residential aged care subsidy calculation model from 1 October 2022
Schedule 2 would establish nationally consistent pre-employment screening
for aged care workers of approved providers to replace existing
police checking
obligations
Schedule 3 would allow the Aged Care Quality and Safety Commissioner
(Commissioner) to make and enforce a Code of Conduct that applies
to approved
providers and their workers, including governing persons
Schedule 4 would extend the Serious Incident Response Scheme from
residential care to home care and flexible care delivered in a
home or community
setting from 1 July 2022
Schedule 5 would introduce new governance and reporting responsibilities
for approved providers
Schedule 6 would increase information sharing between Commonwealth bodies
across the aged care, disability and veterans’ affairs
sectors in relation
to non-compliance of providers and their workers
Schedule 7 would enable the Secretary or Commissioner to request
information or documents from a provider or borrower of a loan made
using a
refundable accommodation deposit or bond
Schedule 8 would expand the functions of the Independent Health and Aged
Care Pricing Authority to include the provision of advice
on health and aged
care pricing and costing matters, and the performance of certain functions
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Portfolio
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Health
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Introduced
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House of Representatives, 1 September 2021
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Rights
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Health; rights of persons with disability; privacy
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1.1 This bill seeks to make numerous amendments to implement eight measures in response to recommendations of the Royal Commission into Aged Care Quality and Safety.[2] This includes requiring the Aged Care Quality and Safety Commissioner (Commissioner) to establish and maintain a register of all individuals against whom a banning order has been made at any time (including banning orders no longer in force). This register must contain the relevant individual’s name; ABN (if any); details of the banning order (including any conditions to which the order is subject); and any other information specified in the rules.[3] The register may be kept in any form that the Commissioner considers appropriate and the rules may specify matters as to making the register, in whole or in part, publicly available, or specified information in the register publicly available.[4]
1.2 Insofar as the register of banning orders helps to ensure that unsuitable people who may present a risk to aged care recipients are not engaged in the provision of their care, this measure appears to promote the rights to health and, as many people in aged care live with disability, the rights of people with disability. The right to health is the right to enjoy the highest attainable standard of physical and mental health.[5] The right to health requires available, accessible, acceptable and quality health care. The right to be free from all forms of violence, abuse and exploitation in article 16 of the Convention on the Rights of Persons with Disabilities requires that States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse.[6] Further, '[i]n order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities'.[7]
1.3 However, by requiring a register of banning orders which may be made public and which names the individuals subject to those orders, the measure also engages and limits the right to privacy. The right to privacy protects against arbitrary and unlawful interferences with an individual's privacy and attacks on reputation. It includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information. It also includes the right to control the dissemination of information about one's private life.[8]
1.4 The right to privacy may be subject to permissible limitations which are provided by law and are not arbitrary. In order for limitations not to be arbitrary, the measure must pursue a legitimate objective, be rationally connected to that objective and proportionate to achieving that objective.
1.5 The statement of compatibility recognises generally that Schedule 3, which seeks to make numerous amendments, engages and limits the right to privacy. It states that the measures in general seek to promote the rights of aged care recipients to be protected from violence, exploitation and abuse, and their right to the highest attainable standard of health and an adequate standard of living, but does not provide information as to the specific objective of the register.[9] The explanatory memorandum provides further information as to this:
The purpose of this provision is to make information about banned individuals accessible to the public, including future employers of such individuals in the aged care sector. This aims to ensure the safety of care recipients by putting employers on notice of individuals who were found unsuitable to provide aged care or specified types of aged care services. This provision aligns with the approach taken under the NDIS (see section 73ZS of the NDIS Act) Publication of this information is considered reasonable, necessary and proportionate in order to protect the safety of vulnerable older Australians.[10]
1.6 Protecting the safety of vulnerable aged care recipients is a legitimate objective for the purposes of international human rights law. Making information about banned individuals accessible to the public, including future employers, is likely to be effective to achieve that objective. The key question is whether the measure is proportionate. In assessing the proportionality of the measure, relevant considerations include whether the limitation is only as extensive as is strictly necessary; whether there are other less rights restrictive means to achieve the objective; and whether there are appropriate safeguards accompanying the measure.
1.7 The scope of personal information published on the register is relevant in considering whether the limitation on the right to privacy is only as extensive as is strictly necessary. The bill provides that the register must contain the relevant individual’s name; ABN (if any); details of the banning order (including any conditions to which the order is subject); and any other information specified in the rules.[11] The explanatory memorandum states that it is not anticipated that the matters which may be included in the register prescribed by the rules will extend to any highly sensitive or highly personal information, but where an individual or business has a common name, it may be necessary to include further information, to publish an amount of information that is sufficient to ensure the person can be identified, but this would not extend to the nature of the incident that prompted the making of the banning order.[12]
1.8 It is noted that inclusion on the register indicates that a banning order has been made against the individual (even if the order is no longer in force). A banning order may be made against an individual on a number of grounds, including that the Commissioner considers they are not complying, or are likely not to comply with, the new Code of Conduct, or that they are not suitable to be involved in the provision of aged care.[13] This may be based on a number of factors, including their experience in aged care or other relevant forms of care; that they have been subject to relevant adverse findings; or convicted of an indictable offence.[14] As such, even though the only identifying information may be an individual’s name, publication of the fact of the banning order, and details of the order, is likely to have a considerable effect on the individual’s right to privacy and reputation, as it indicates they are not suitable to be involved in providing aged care services. The register also includes any banning order made, including if it is no longer in force. This would appear to include banning orders that may have been revoked or overturned on review, potentially because they were invalidly made. It is also not clear if the register would make clear where a person was seeking review of a banning order.
1.9 In considering whether the limitation on the right to privacy is no more than is strictly necessary, it is not clear why the register would need to be accessible to the general public. The explanatory memorandum states that the purpose is to put employers on notice of individuals who were found unsuitable to provide aged care services (as can be provided for in the rules).[15] However, it is not clear why it would be necessary to make the information available to the public at large, rather than restrict access to employers in the aged care sector.
1.10 Noting that the rules may make provision for making the register, in whole or in part, publicly available, much will depend on what is ultimately prescribed by the rules. If the register is made available to the general public, such that it can be available via an internet search (for example, if searching a banned individual’s name on google would return a search linking them to the register) this is unlikely to be the least rights restrictive way to achieve the aim of ensuring employers can determine who is subject to a banning order. If, however, the rules prescribe that the information may be made available to employers in the aged care sector on request, or via a secure online portal only, the register of banning orders is likely to be a proportionate limit on the right to privacy.
1.11 The committee notes this bill seeks to make a number of important amendments to implement eight measures in response to recommendations of the Royal Commission into Aged Care Quality and Safety. One such measure is to establish and maintain a register of all individuals against whom a banning order has been made, relating to suitability to deliver aged care services. The rules may specify matters as to making the register, in whole or in part, publicly available, or specified information in the register publicly available.
1.12 The committee considers that as the register of banning orders may help to ensure that unsuitable people who may present a risk to aged care recipients are not engaged in the provision of their care, this measure promotes the rights to health and, as many people in aged care have disability, the rights of people with disability.
1.13 By requiring a register of banning orders which may be made public and which names the individuals subject to those orders, the measure also engages and limits the right to privacy. The right to privacy may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
1.14 The committee notes that the rules are likely to make provision for making the register publicly available, and the explanatory memorandum states it is intended to make information about banned individuals ‘accessible to the public’ in order to put employers on notice of individuals who are unsuitable to provide aged care services. Protecting vulnerable older Australians is clearly a legitimate objective, and publishing this information is likely to be effective to achieve this objective. However, if the information were to be made available to the public via a general internet search this may not be the least rights restrictive way of ensuring employers are aware of any banning order. The committee notes that much will depend on what the rules provide and it will examine such rules should they be made.
1.15 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021, Report 11 of 2021; [2021] AUPJCHR 108.
[2] Note that the committee is not commenting on the other measures in this bill on the basis that they do not engage, or only marginally engage, human rights; promote human rights; and/or permissibly limit human rights.
[3] Schedule 3, item 25, proposed subsections 74GI(1)-(2).
[4] Schedule 3, item 25, proposed subsections 74GI(3)‑‑-(4).
[5] International Covenant on Economic, Social and Cultural Rights, article 12(1).
[6] Convention on the Rights of Persons with Disabilities, article 16(1).
[7] Convention on the Rights of Persons with Disabilities, article 16(3).
[8] International Covenant on Civil and Political Rights, article 17.
[9] Statement of compatibility, p. 14.
[10] Explanatory memorandum, p. 76.
[11] Schedule 3, item 25, proposed subsections 74GI(1)-(2).
[12] Explanatory memorandum, p. 75.
[13] Schedule 3, item 25, proposed section 74GB.
[14] Schedule 5, item 26, proposed new section 8C, which sets out 'suitability matters'.
[15] Schedule 3, item 25, proposed subsections 74GI(3)-(4).
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2021/108.html