Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Hansard source

I would say it's not correct to say it's a blanket immunity that is given in this area. If aged-care workers have utilised restrictive practices where they are unnecessary, they will not be protected from prosecution. This has been widely misunderstood and misrepresented. The immunity provision does not give general immunity where restrictive practices are used; it only protects people where all of the strong legal requirements around using restrictive practices are strictly followed.

Schedule 9 of the bill has to be viewed in the context of the whole scheme that governs the use of restrictive practices in aged care. It is included in the bill as a temporary measure, to clarify requirements in relation to consent to the use of restrictive practices, until the matter can be revisited as part of the new Aged Care Act in 2023. It addresses a gap between Commonwealth legislation and state and territory guardianship and consent laws, a gap which has the potential to prevent restrictive practices being authorised, even when required to prevent harm to aged-care residents. So, without it, harm to older Australians could occur.

The bill authorises new persons and bodies to consent to restrictive practices who would not otherwise be authorised under state and territory law. It also includes an immunity provision to cover these circumstances. But immunity from civil or criminal liability only applies where consent is provided by an authorised person and where these practices are used consistently with the principles—that is, where restrictive practices are used as a last resort and only to the extent that is necessary, for the shortest time and in the least restrictive form, and to prevent harm to the care recipient. Where there are state and territory laws on restrictive practices, that legislation also still applies.