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

In the interest of keeping things moving—or starting to move—I seek leave to move government amendments (1) to (63) and (65) to (91) on sheet RY104 together. For clarity, according to the grey, I understand it suits the Senate for amendment (64) on that sheet to be moved separately, so I will do that at that time.

Leave granted.

I table a supplementary explanatory memorandum relating to the government amendments to be moved to the Aged Care Bill 2024, and move:

(1) Clause 7, page 15 (line 10), omit the definition of decision-making supporter.

(2) Clause 7, page 28 (after line 16), at the end of paragraph (a) of the definition of serious injury or illness, add:

(ix) a serious wound or pressure injury; or

(3) Clause 11, page 36 (lines 18 to 20), omit subclause (2), substitute:

(2) A registered provider means an entity that:

(a) is registered as a registered provider (whether under paragraph 105(1)(a) or because of a renewal under paragraph 108(1)(a), or because of a determination made by the System Governor under subsection 117(1)); and

(b) the registration period has not ended; and

(c) that registration has not been revoked under a provision of Part 3 of Chapter 3.

Note: A registered provider's registration is not in effect while suspended: see section 130. This means most provisions of this Act still apply to the registered provider unless a provision expressly requires that the registered provider's registration is in effect for the provision to apply.

(4) Clause 11, page 36 (line 28), after "provider", insert "to deliver funded aged care services".

(5) Clause 11, page 37 (line 11), omit "Despite subsection (4), an", substitute "An".

(6) Clause 12, page 37 (line 33), before "any", insert "if the registered provider is not a government entity—".

(7) Clause 12, page 38 (line 1), before "any", insert "if the registered provider is not a government entity—".

(8) Clause 12, page 38 (line 4), before "if", insert "for any registered provider (including a government entity)—".

(9) Clause 12, page 38 (line 13), after "operations", insert "of an approved residential care home or service delivery branch".

(10) Clause 20, page 44 (lines 31 to 34), omit subparagraph (c)(v), substitute:

(v) supporting the improvement of the individual's wellbeing, independence, autonomy and physical and cognitive capacity through reablement approaches, where the individual chooses to, including by keeping the individual mobile and engaged if they are living in an approved residential care home;

(11) Clause 20, page 45 (line 19), omit "requested", substitute "required".

(12) Clause 20, page 45 (line 25), at the end of paragraph (c), add:

; (xiii) the delivery of high quality nursing services by sufficient numbers of qualified and experienced direct care staff members.

(13) Clause 24, page 50 (after line 18), at the end of the clause, add:

Note: However, it is a condition of registration for certain registered providers that a registered provider must demonstrate understanding of the Statement of Rights and have in place practices to ensure that the provider acts compatiblywith the Statement of Rights: see subsection 144(1). A person may make a complaint to the Complaints Commissioner about a registered provider acting in a way that is incompatible with the Statement of Rights: see section 358.

(14) Clause 25, page 51 (line 22), after "decision-making", insert ", or be supported (if necessary) to make or communicate decisions,".

(15) Clause 25, page 51 (line 23), after "accesses", insert "to ensure the individual's will and preferences are respected".

(16) Clause 27, page 56 (line 3) to page 57 (line 17), omit the clause, substitute:

27 Actions of supporters

A supporter of an individual may, with the consent of the individual, do any of the following to support the individual to do a thing under, or for the purposes of, this Act (other than Part 5 of Chapter 4 of this Act):

(a) request, access or receive information or documents;

(b) communicate information, including the will, preferences and decisions of the individual;

(c) a thing, other than making a decision on behalf of the individual, prescribed by the rules.

Note 1: If there is more than one supporter of an individual, the supporters may do a thing jointly and severally: see subsection 37(3).

Note 2: For the provisions about how supporters are registered, see Division 3.

(17) Clause 28, page 57 (lines 19 to 25), omit subclause (1), substitute:

(1) A person must not do any thing on behalf of an individual that may or must be done by the individual under, or for the purposes of, this Act unless the person is a person covered by subsection (2) who is, by reason of being such a person, authorised to do the thing on behalf of the individual.

(18) Clause 29, page 58 (lines 9 to 12), omit paragraph (1)(b), substitute:

(b) regardless of whether the individual has consented—to a supporter of the individual if the supporter is a person covered by subsection 28(2).

(19) Clause 29, page 58 (lines 13 to 15), omit subclause (2).

(20) Clause 30, page 59 (lines 1 and 2), omit paragraph (1)(d).

(21) Heading to subclause 30(2), page 59 (line 4), omit the heading.

(22) Clause 30, page 59 (line 15) to page 60 (line 27), omit subclauses (3) to (5).

(23) Clause 37, page 64 (lines 6 to 15), omit subclause (2), substitute:

(2) The registration may be made on the request of a person (including the individual) or body.

(24) Clause 37, page 65 (line 11), at the end of subparagraph (6)(b)(ii), add "and".

(25) Clause 37, page 65 (lines 12 to 14), omit subparagraph (6)(b)(iii).

(26) Clause 39, page 66 (lines 3 to 11), omit subclause (1), substitute:

(1) If the System Governor registers a person under subsection 37(1) to be a supporter of an individual in the circumstance set out in subparagraph 37(6)(b)(i), the System Governor must give written notice of the registration to the following:

(a) the supporter;

(b) the individual.

Note: An individual is not required to consent to the registration of a person as a supporter of the individual in the circumstances set out in subparagraph 37(6)(b)(i).

(27) Division 4, clauses 43 to 48, page 68 (line 1) to page 71 (line 19), to be opposed.

(28) Clause 49, page 73 (line 8), omit "referred to in", substitute "covered by".

(29) Clause 49, page 73 (lines 13 to 19), omit subclause (4), substitute:

(4) While a person's registration as a supporter of an individual is suspended, the registration has no effect for the purposes of this Act.

(30) Clause 52, page 74 (line 31), after "written", insert "or verbal".

(31) Clause 53, page 75 (line 8), omit "if the supporter is not a decision-making supporter", substitute "if the supporter is not a person covered by subsection 28(2)".

(32) Clause 53, page 75 (line 10), omit "if the supporter is a decision-making supporter", substitute "if the supporter is a person covered by subsection 28(2)".

(33) Clause 53, page 75 (lines 12 to 21), omit subclauses (2) and (3), substitute:

(2) Before the System Governor decides whether to cancel the registration of a person as a supporter of an individual under paragraph (1)(b), the System Governor must give written notice of the individual's request to the supporter.

(3) The notice under subsection (2) must:

(a) be given as soon as practicable after the request is received by the System Governor; and

(b) provide that the supporter may give the System Governor, within 28 days after the day the notice is given, a statement setting out the reasons why the person's registration as a supporter of the individual should not be cancelled.

(3A) The System Governor must make the decision within:

(a) if the supporter is given a notice under subsection (2) and gives the System Governor a statement referred to in paragraph (3)(b) within the 28-day period—14 days after receiving the statement; or

(b) if the supporter is given a notice under subsection (2) but does not give the System Governor a statement referred to in paragraph (3)(b) within the 28-day period—14 days after the end of that 28-day period; or

(c) otherwise—28 days after receiving the request.

(34) Clause 62, page 82 (after line 10), at the end of the clause, add:

(3) When undertaking the aged care needs assessment, the approved needs assessor must:

(a) consider the individual's rights mentioned in subsection 23(1) (independence, autonomy, empowerment and freedom of choice); and

(b) to the extent possible, make the individual aware of, support them to understand, and empower them to exercise, the individual's rights under the Statement of Rights; and

(c) involve the individual's carer, family member, advocate or other person in the discussions mentioned in subsection (2), if that is the individual's will and preference.

(35) Clause 93, page 111 (line 8), omit "may prescribe", substitute "must prescribe, if relevant,".

(36) Clause 130, page 143 (lines 26 to 30), omit the clause, substitute:

130 Effect of registration while suspended

If an entity's registration as a registered provider is suspended for a period under section 129, the entity's registration is taken not to be in effect for that period.

Note: This means the registered provider will not be eligible for funding under Chapter 4.

(37) Clause 144, page 158 (lines 9 to 12), omit paragraph (1)(b), substitute:

(b) have in place practices to ensure that the provider acts compatibly with the Statement of Rights, in accordance with subsection 24(2) (acting compatibly with the Statement of Rights).

(38) Clause 163, page 171 (line 31), after "if", insert ", before 1 December 2026".

(39) Clause 169, page 177 (line 30), omit "individual", substitute "person".

(40) Clause 180, page 187 (line 28), omit "(other than a person referred to in subparagraph 12(1)(c)(ii))", substitute "under paragraph 12(1)(a) or (b)".

(41) Clause 197, page 207 (after line 15), at the end of the clause, add:

(4) Without limiting subsection (2), the circumstances prescribed by the rules as circumstances in which the fee reduction supplement will apply to an individual for a day must include circumstances that involve financial hardship.

(42) Clause 211, page 217 (after line 11), after subclause (1), insert:

(1A) Without limiting subsection (1), rules made for the purposes of that subsection may provide that the System Governor may determine the account period for the individual in accordance with the rules.

(43) Clause 211, page 217 (after line 29), after subclause (4A), insert:

(4B) Without limiting subsection (4A), rules made for the purposes of that subsection may provide that the System Governor may determine the amount for the individual in accordance with the rules.

(44) Clause 214, page 220 (after line 15), at the end of the clause, add:

(4) Without limiting subsection (2), the circumstances prescribed by the rules as circumstances in which the fee reduction supplement will apply to an individual for a day must include circumstances that involve financial hardship.

(45) Clause 220, page 225 (after line 10), after subclause (1), insert:

(1A) Without limiting subsection (1), rules made for the purposes of that subsection may provide that the System Governor may determine the account period for the individual in accordance with the rules.

(46) Clause 223, page 228 (after line 3), at the end of the clause, add:

(4) Without limiting subsection (2), the circumstances prescribed by the rules as circumstances in which the fee reduction supplement will apply to an individual for a day must include circumstances that involve financial hardship.

(47) Clause 231, page 241 (after line 3), at the end of the clause, add:

(4) Without limiting subsection (2), the circumstances prescribed by the rules as circumstances in which the fee reduction supplement will apply to an individual for a day must include circumstances that involve financial hardship.

(48) Clause 268, page 267 (lines 22 to 24), omit subclause (1), substitute:

(1) The rules may make provision for, or in relation to, a code of conduct that applies to persons or bodies:

(a) to whom money may be payable under an arrangement made under subsection 265(1); or

(b) who receive a grant of financial assistance made under subsection 265(1).

(49) Clause 314, page 310 (line 12), omit "decision", substitute "determination".

(50) Heading to clause 343, page 353 (line 5), after "persons", insert "or bodies".

(51) Clause 343, page 353 (line 6), after "person", insert "or body".

(52) Clause 343, page 353 (line 8), after "person", insert "or body".

(53) Clause 343, page 353 (line 11), after "person", insert "or body".

(54) Clause 375, page 374 (line 16), after "Minister", insert ", the Complaints Commissioner".

(55) Clause 405, page 398 (lines 1 to 9), to be opposed.

(56) Heading to Part 5, page 420 (line 1), omit "monitoring and".

(57) Clause 435, page 420 (lines 6 to 7), omit "sections 405 and", substitute "section".

(58) Clause 436, page 420 (after line 10), before subclause (1), insert:

(1A) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises entered under an investigation warrant for the purposes of this Act.

(59) Clause 437, page 422 (after line 5), before subclause (1), insert:

(1A) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Act.

(60) Clause 438, page 423 (after line 7), before subclause (1), insert:

(1A) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Act.

(61) Page 429 (after line 11), at the end of Division 2, add:

445A Amount of penalty for serious failures to comply with registered provider duty

Despite subsection 82(5) of the Regulatory Powers Act:

(a) the pecuniary penalty for a contravention of subsection 179(3) of this Act must not be more than the applicable pecuniary penalty specified in that subsection; and

(b) the pecuniary penalty for a contravention of subsection 179(5) of this Act must not be more than the applicable pecuniary penalty specified in that subsection.

(62) Clause 537, page 496 (line 6), omit "If", substitute "Subject to subsection (9A), if".

(63) Clause 537, page 496 (after line 8), after subclause (9), insert:

(9A) The relevant information used or disclosed by the person must be de-identified if:

(a) it is appropriate in the circumstances to de-identify the relevant information; and

(b) de-identifying the relevant information does not prevent the person from fulfilling the purpose for which the information was disclosed to the person.

(65) Clause 555, page 514 (lines 10 to 11), omit paragraph (c).

(66) Clause 557, page 519 (table items 3 and 4), omit the table items.

(67) Clause 569, page 533 (line 19), omit "Subdivision B of Division 2 of Part 5 of Chapter 4", substitute "Part 5 of Chapter 4 (means testing)".

(68) Clause 569, page 533 (line 22), omit "Subdivision B of Division 2 of".

(69) Clause 569, page 533 (lines 23 to 25), omit the note.

(70) Clause 570, page 534 (line 13), omit "Subdivisions B and C of Division 2 of Part 5 of Chapter 4", substitute "Part 5 of Chapter 4 (means testing)".

(71) Clause 570, page 534 (line 16), omit "Subdivisions B and C of Division 2 of".

(72) Clause 570, page 534 (lines 17 to 20), omit the note.

(73) Clause 571, page 535 (before line 7), before paragraph (1)(a), insert:

(aa) the System Governor's powers and functions under Division 1 of Part 5 of Chapter 4 (means testing in a home or community setting); or

(74) Clause 571, page 535 (line 8), after "Chapter 4", insert "(value of an individual's assets)".

(75) Clause 571, page 535 (lines 9 to 11), omit paragraph (1)(b), substitute:

(b) the System Governor's powers and functions under Part 2 of this Chapter relating to reconsidering decisions under:

(i) Division 1 of Part 5 of Chapter 4; or

(ii) Subdivision C of Division 2 of Part 5 of Chapter 4.

(76) Clause 571, page 535 (lines 12 to 14), omit the note.

(77) Clause 572, page 535 (before line 31), before paragraph (1)(a), insert:

(aa) the System Governor's powers and functions under Division 1 of Part 5 of Chapter 4 (means testing in a home or community setting); or

(78) Clause 572, page 535 (line 32), after "Chapter 4", insert "(individual's total assessable income)".

(79) Clause 572, page 536 (lines 1 to 3), omit paragraph (1)(b), substitute:

(b) the System Governor's powers and functions under Part 2 of this Chapter relating to reconsidering decisions under:

(i) Division 1 of Part 5 of Chapter 4; or

(ii) Subdivision B of Division 2 of Part 5 of Chapter 4.

(80) Clause 572, page 536 (lines 4 to 6), omit the note.

(81) Clause 573, page 536 (before line 30), before paragraph (1)(a), insert:

(aa) the System Governor's powers and functions under Division 1 of Part 5 of Chapter 4 (means testing in a home or community setting); or

(82) Clause 573, page 536 (line 31), after "Chapter 4", insert "(individual's total assessable income)".

(83) Clause 573, page 537 (line 2), after "Chapter 4", insert "(grants)".

(84) Clause 573, page 537 (line 3), omit "sections".

(85) Clause 573, page 537 (before line 6), before subparagraph (1)(c)(i), insert:

(ia) Division 1 of Part 5 of Chapter 4;

(86) Clause 573, page 537 (lines 8 to 11), omit the notes.

(87) Heading to subclause 575(2), page 539 (line 6), at the end of the heading, add "to staff of the Commission".

(88) Clause 575, page 539 (after line 10), at the end of the clause, add:

Subdelegation to holders of specified non-SES offices or positions

(3) Before subdelegating a function or power under subsection (2) to an APS employee holding, occupying, or performing the duties of a specified office or position that is not an SES office or position, the Complaints Commissioner must have regard to whether the office or position is sufficiently senior for the employee to perform the function or exercise the power.

Subdelegation to consultants

(4) If, under subsection (1), the Commissioner delegates a power or function to the Complaints Commissioner, the Complaints Commissioner may, in writing, subdelegate the power or function to a consultant engaged under section 371.

(5) Before subdelegating a function or power under subsection (4) to a person, the Complaints Commissioner must have regard to whether the person has appropriate qualifications or expertise to perform the function or exercise the power.

(89) Clause 599, page 558 (after line 9), after paragraph (2)(a), insert:

(aa) the extent of funded aged care services accessed by individuals from different locations and with different backgrounds and life experience;

(90) Page 558 (after line 29), after clause 600, insert:

600A Review of accommodation pricing

(1) The Minister must cause an independent review of accommodation pricing under this Act to be conducted.

(2) The persons who conduct the review must give the Minister a written report of the review.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament no later than 1 July 2026.

(91) Clause 602, page 562 (after line 14), after paragraph (b), insert:

(ba) specifying that the amount or period may be set by a determination made by the System Governor in accordance with the rules;

The government amendments are designed to address key concerns that were raised by the aged-care sector, older people and unions during the community affairs inquiry. I take this opportunity to acknowledge Senator Ruston and her colleagues. I also acknowledge, importantly, committee chair Senator Marielle Smith and members Senator Pratt and Senator Urquhart, in addition to everyone who took the time to make a written or verbal submission. Government committee members travelled—actually, all committee members travelled—to nine public hearings across every single state and territory. They heard from more than 150 people, including 28 witnesses who shared their lived experience of aged care. The inquiry received more than 180 submissions from people affected by aged care, and from their advocates and representatives, as well as from service providers and other stakeholders across the aged-care sector.

The purpose of the amendments tabled by the government are to: amend a number of key definitions and concepts in response to stakeholder feedback, including 'serious injury or illness', 'aged-care worker', 'high-quality care' and 'responsible person'; remove ambiguity relating to the responsible person duty; make key changes to the enforceability of the statement of rights and the corresponding condition of registration; implement the recommendation that a review of accommodation pricing be brought forward to report on 1 July 2026 and included in the bill; mandate financial hardship as a circumstance for the fee-reduction supplement; remove decision-making supporters and streamline and strengthen the safeguards in place for the supported decision-making framework; sunset the immunity provision for restrictive practices; and make minor and technical corrections to address errors in the bill. I commend those amendments to the Senate.