Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

by leave—I move government amendments (1) and (2):

(1)    Schedule 1, item 1, page 3 (line 11), after “1986)”, insert “that was purchased on or after 20 September 2007”.

(2)    Schedule 1, item 1, page 3 (line 24), after “1991)”, insert “that was purchased on or after 20 September 2007”.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I thank the minister for the clarification that it was IFSA which raised the issue with the government about the start-up time—that being 20 September 2007—but I ask the minister, given he talked long and loud about how consultative he is, if IFSA came to his office on, say, Wednesday, what other consultations did he undertake between the drafting of these amendments and bringing them into the chamber? These may affect the operation of a number of other services. Did he consult with the aged-care sector itself, recognising that it is an issue to do with the treatment of assets?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Obviously, we consulted IFSA. I also asked that the aged-care sector be broadly consulted. I can get some further details for you, if you wish. Again, the amendment suggested by IFSA was quite an obvious one to consider and to draft in order to remove any confusion and inequities that otherwise would have existed within the amending legislation. I can find out some more details for you, if you wish, and get back to you. I want to stress that the amendment was an obvious one. It was a technical one that, quite honestly, had eluded the drafters of the main amendment that we are considering. The IFSA were certainly the main competent representative organisation to bring that to our attention, and we are grateful for their advice.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

Thank you, Minister, for the indication that you will get back to the chamber with an indication of who in the aged-care sector—

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I will get back to you; I am happy to do that.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I would prefer the minister to bring that information back to the chamber. He has said on the record that he asked if the aged-care sector could be broadly consulted, or something along those lines. I would like to know who was consulted, and I would like that information to be provided to the chamber.

Question agreed to.

by leave—I move:

(1)    Schedule 1, heading, page 3 (line 4), at the end of the heading, add “and unannounced support contacts”.

(2)    Schedule 1, page 4 (after line 31), at the end of the Schedule, add:

4 After section 54-3

Insert:

54-3A Unannounced support contacts by the Aged Care Standards and Accreditation Agency

          (1)        Every residential aged care facility must be subject to at least one unannounced support contact by the Aged Care Standards and Accreditation Agency every year.

          (2)     The residential aged care facility must not be given any prior notice of the support contact.

          (3)     The Assessment Team conducting the support contact must assess the facility against all Quality Outcomes of the Aged Care Standards and Accreditation Agency.

These amendments that Labor are moving today are very straightforward. As I said in my speech in the second reading debate, they put the government’s rhetoric into the legislation. It is a very simple proposition; the amendments say that there will be one check a year of each residential aged-care facility, and it will be an unannounced assessment on all 44 outcomes. That is not unexpected from the community, and we are delivering the legislative instrument that the government should be delivering, given the language that they have been using for quite some time.

The minister said earlier this year that every home will receive one unannounced spot check each year. That was unequivocal; it was very straightforward. It is a little different from what Mrs Bronwyn Bishop said in 2000 when she said that there would be a stepped-up program of spot checks. As I indicated in my speech in the second reading debate, a stepped-up operation of spot checks delivered nothing of the sort. We actually saw a diminishing, over a number of years, of the number of spot checks that were undertaken by the agency in the five years from 2000—since the advent of kerosene baths.

This piece of legislation was the opportunity to give the government the language and the legislative instrument that would deliver on what they have been saying. The community has a very strong understanding that every facility in Australia is going to be given a spot check every year. What does a spot check mean? It means it is unannounced. It actually says that in the legislation. So these amendments that Labor is moving today defines ‘unannounced’. Everyone out there in the street knows what ‘unannounced’ means; it means that someone turns up without telling them. If you get a visitor who is unannounced it means that they did not ring you before they came to see you. That is what ‘unannounced’ means. It means without notice. So when the minister says that every home will receive one unannounced spot check every year, everyone in the community thinks that the Aged Care Standards and Accreditation Agency will go to some 3,000 residential aged-care facilities in Australia without notice at least once a year. The minister’s language is clear; the language in this legislation is also clear—it simply reflects the words that he used earlier this year.

We have needed clarification of what the word ‘unannounced’ means. I asked earlier this year in Senate estimates what ‘unannounced’ might mean, and we talked at length about ‘unannounced’. We had a long discussion with Mr Brandon from the agency which reads pretty well as a Yes Minister script, for anyone who is interested in a bit of a giggle. I am sure Mr Brandon will not mind me saying that. I asked a second question on notice to find out how many unannounced spot checks we have had since 2000. The answer to the first question was: ‘An unannounced visit is a visit conducted with less than 30-minutes notice.’ Unannounced, according to the department—and we know the accountability principles—is conducted with less than 30 minutes notice.

I asked a third question on that. I asked: ‘Please provide the number of unannounced visits by state and territory.’ The answer is quite extraordinary. The answer says: ‘The number of support contacts and reviewed audits conducted with less than one day’s notice were as follows’—so the whole language around this spot check thing is very confused. The intent of my amendments is to clear it all up. If ‘unannounced’ means ‘without notice’ to everybody out there on the street, let us have ‘unannounced’ mean ‘without notice’ in the Aged Care Act. Then the accountability principles can be amended to reflect that. It is a very simple proposition. It is what people understand is going to be happening, and I am unashamedly putting into effect what the minister has indicated he was going to do. That goes to the question of what ‘unannounced’ means.

The second question goes to the intent of the amendment that says that there will be one unannounced spot check a year—one for every facility. There will be review audits; there will be other sorts of assessment processes conducted by the agency. But in this legislation we are just talking about unannounced support contacts—that is what everyone in the world knows is a spot check. So that is what we are doing with this legislation: delivering on the intent of the minister’s language. We know—the minister has been very proud to tell us—that in May 142 unannounced support contacts were delivered; in June, 139. I indicate to the minister that it would be very helpful to progress this debate if he could give us the July, August and maybe even September figures so that we can keep a bit of a running commentary on how many unannounced support contacts we have had, because on the basis of about 140 a month we are not going to hit the target of 3,000.

The minister said in his summing-up that there were going to be 5,200 visits per year—that is fine; there is no reason for me to believe that that will not happen—and that 3,000 of those would be spot checks, I think was his language. On the basis that we had 142 in May and 139 in June, we are going to have to step up the operation a bit in order to hit the 3,000 by the end of the financial year. I recognise that I only have two months of data. Maybe there is other data that the minister can provide to the committee so that we all know and can be assured that we will hit the 3,000 by the end of June next year.

The third element in my amendment goes to the question of the 44 outcomes. The minister, when he made his announcement early this year that every home will receive one unannounced spot check each year, did not indicate that we would only assess certain elements. He did not say that we were going to look just at certain elements of the operation. He did say that these extra spot checks would focus on care standards and provide an incentive for the consistent delivery of high-quality care. That does not say that we are not going to look at everything; it says that we are going to ensure that we deliver high-quality care. This amendment says that we will be expecting the agency to undertake an assessment on all 44 outcomes. They are all equal. They are all important. A home that is not delivering quality of service on all 44 care outcomes can be non-compliant—we know that. But it is important that the community understands this, one way or the other. If the minister is saying we will only check certain things then let us understand that, let us be really clear about that. In my view, families of residents and the residents themselves are of the view that all 44 outcomes are going to be assessed.

Labor’s amendment is a very straightforward proposition; it is very simple. It puts into legislation the language that the minister has been using: one spot check, unannounced, on all 44 outcomes. I commend the amendment to the chamber.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I made the government’s view quite clear in my substantive response to Senator McLucas’s second reading debate speech. I will make one additional comment, and that is that the amendments that are in fact before the Senate at this moment really do not have anything to do with the substantial amendment that we are making to the legislation. This has absolutely nothing to do with it because we are talking about something totally different in the substantial amendment. Senator McLucas of course knows that we are in the process of preparing substantive legislation that will address all of the issues that she has addressed in her amendment to the main amendment of the government. I can certainly undertake to Senator McLucas that we will consider her views, but we are still very carefully considering the views of the sector, including the views of advocates, of residents, of relatives and of providers, and we will continue to do that. Undoubtedly those views will be sensibly reflected in the substantive legislation that will be coming before the Senate and the parliament as a whole in the near future.

I suppose we can go into a semantic debate as to what is an unannounced visit. The current legislation requires that some notice be given. As I mentioned in my substantive reply to Senator McLucas’s second reading debate contribution, most reasonable people would suspect that five minutes is in fact, for all intents and purposes, an unannounced visit. Nevertheless, I do take Senator McLucas’s point on board about the definition of ‘unannounced’. I will take further advice from both the department and the sector and I will consider that advice in the context of the legislation that is being drafted.

In terms of whether we will hit the 3,000 unannounced spot checks, the department has advised me that that will happen—3,000 per year. It is obviously my intention, as it has been ever since I became minister, to keep the Senate and the parliament as a whole informed of developments on a very regular basis. Senator McLucas and the Senate can expect me to keep on talking about the performance of the government when it comes to issues such as unannounced spot checks, including the numbers, which I am assured by the department will be achieved.

In terms of spot checking against all of the 44 outcomes, again I have explained in very great detail why the government and the sector believe it is impractical to in fact check against all 44 outcomes. I will just let my earlier comments stand. I do not find Senator McLucas’s further contributions to be persuasive to the point where I should accept their validity or the amendment.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I just have a couple of other questions. First of all, Minister, you alluded to the fact that you might provide the chamber with some data on the number of spot checks that have been held in July, August and September. I just want to confirm how that might occur—whether I have to wait until estimates or whether that will occur in a shorter time frame. We probably will conclude this bill before dinner, but if we were to go over the dinner break it might be handy if we could have that information today. As I said, at the rate that we were going, on the numbers that you have provided to the chamber to date, we are looking at around 140 a month, which will not get us to 3,000 by the end of June. So I am very interested in receiving data on the number of spot checks that have been conducted, particularly in July, August and September this year.

You are saying, Minister, that the agency cannot assess a facility against all 44 expected outcomes. Now the community know that. That is at least something we have gained today—that we are going to, as I said in my speech on the second reading, kick the tyres rather than do a full assessment of the operation of the facility. My specific question is: how do the agency ascertain which of those 44 outcomes they are going to assess the facility against? Will they be, as ACSA said in their report, issues that have received some attention in their most recent audit? How will the agency make a decision on which expected outcomes will be assessed?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

In terms of the provision of information to the Senate, and particularly to Senator McLucas, I will continue to provide information as regularly as I have—obviously at estimates, in response to your questions, in response to questions from senators on my side of the chamber, through media releases and through any other accountability mechanism that exists. You can draw whatever conclusions you wish to draw from the figures that I have already provided, Senator McLucas; that is up to you. I will certainly continue to be very open and very honest with the Senate, and I look forward to providing further information in due course. We do have estimates in a couple of weeks time, which is not too far away. There will also be three question times in the Senate at which you may wish to ask questions. I am not trying to hide any information from you in relation to July, August and September figures.

I will ask the agency to let me know and, if I can provide that information in the near future, I will. Again, I can assure you that the government in its budget provided additional funds—I think it was $1.5 million; I will stand corrected on the exact figure—for additional spot checks. The agency informs me that it is able to conduct the additional spot checks under its current budget. I can assure you that those spot checks, one per facility, will take place, and that is the best advice I can give you.

I think how the agency makes its decisions as to what it is going to check against is up to the agency. It is an independent agency; it operates at arm’s length from the government. Obviously the agency is very aware of the strong public interest in the safety of residents within publicly funded aged-care facilities. The physical and health wellbeing of residents is paramount. After all, the issue of spot checks, unannounced visits and all the other measures that the government is putting in place to help to secure the physical and health wellbeing of residents arose because of the public controversy when some isolated issues of physical and sexual abuse became public. I wish to stress that, when those issues were brought to my and the public’s attention, we did everything we could as a government to address them in a very public and accountable way.

I think the agency is very aware of its responsibilities. I believe it is very capable of making determinations broadly and also about specific facilities that it may have under attention. Based on some information that it has received either anonymously or very openly the agency may decide to do a random spot check and check against certain outcomes. It is very difficult to give you, Senator McLucas, a broad brush indication of what they are going to check against other than what they deem fit at the time and what will assist in looking after the best interests, particularly the physical and health interests, of residents in care.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I am somewhat disappointed, Minister, that you are refusing to share information with the Senate about the number of spot checks that have been conducted. I recall you coming into this place and, in answer to a dorothy dixer—

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

Senator McLucas, you might be kind enough to address your remarks to the chair rather than to the senator.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

Pardon me. Thank you.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Mr Temporary Chairman, I would like to take a point of order. I am not refusing to share information with Senator McLucas.

The Temporary Chairman:

That is not a point of order, I am afraid.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I just want to stress that I am not refusing.

The Temporary Chairman:

You can stress that, Minister, but it is not a point of order.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I do say that the minister is not using this opportunity to share information with the Senate about the number of spot checks that have been undertaken in the three months since he came into this chamber at question time and proudly told the Senate that 142 checks had occurred in May and 139 in June. I do not go away from this debate with any confidence when the minister tells us that he is going to share with the Senate ‘as regularly as I have’—I think those were his words—the information about the number of spot checks that are going to be undertaken. I draw no comfort from that. I am sure the community draw no comfort from that. I would have thought, given the obvious pride that he showed in that data early in the year, he would continue to show some pride.

He said to me that I can draw whatever conclusions I will. I have two months data showing that there are about 140 spot checks a month. A simple bit of maths tells you that 140 by 12 gives you 1,680. That is not 3,000. Given the data I have, I take your advice, Minister, and draw the conclusion I can, and that is the conclusion I come to. I need more evidence to turn that information around and get an understanding that the agency will in fact hit 3,000 spot checks per year.

I am disappointed, too, that the minister has not ascertained which outcomes the agency will be assessing against, and it is evident that he has not even bothered to do as much. I am surprised, given that my amendment came into the Senate last Thursday. There was plenty of indication to the minister that these are the sorts of issues that we were going to talk about. I want to know, firstly, why the government is not going to assess against 44 expected outcomes. And then it is a pretty logical thing to expect that I would be asking on what basis which outcomes are being selected. But anyway, we will talk about that more at estimates. But I still reiterate that I am concerned that the minister is not using this opportunity to provide the Senate with the information that I think the community should rightfully have.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Senator McLucas displays an appalling lack of appreciation and knowledge as to how spot checks are done and the role of the accreditation agency. There is one thing that I will not ever have done to me, Mr Temporary Chairman, and that is to be verballed. That is what Senator McLucas, in her mealy-mouthed way, is in fact doing during this debate. If you want to get down to tin tacks, Senator McLucas, I am very happy to remind you what I have said.

The Temporary Chairman:

Through the chair, Minister, please.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Through you, Mr Temporary Chairman. What I have said is that I will continue to provide this Senate and the parliament with information, as I have regularly done. I have also reminded you that there are estimates in a week’s time or so; I have also reminded you that there are three more question times remaining. I will also remind you that you would have to be—through you, Mr Temporary Chairman—one of the shadow ministers that asks the corresponding minister the least number of questions, despite my urging to you every day to do so. You have plenty of opportunity to make me and the government accountable and you fail miserably, like you did today, in terms of asking me questions that are of interest to you and, through you, presumably, to the people who are in the care of the aged-care sector.

So you know, Senator McLucas, until you start living up to your responsibilities—

The Temporary Chairman:

Minister, if you would be kind enough to address through me. I am the Temporary Chairman. Thank you.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

Through you, Mr Temporary Chairman: until Senator McLucas fulfils her responsibilities as a self-respecting shadow minister and you actually convince your leadership group to question me more often than you do, I cannot take you—

Temporary Chairman The:

The TEMPORARY CHAIRMAN interjecting—

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

through you, Mr Temporary Chairman—

The Temporary Chairman:

Thank you.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

seriously. As I said, I will not be verballed. I will continue to provide information through question time, even if I have to get my own side of the chamber to ask me questions. I will continue every day, as I invariably do, to provide to the Senate information of my own volition, without any encouragement, inducement or incentive from Senator McLucas.

The second point that I will make is that the accreditation agency is an independent agency. I as the minister cannot direct an agency, and nor will I attempt to. And God help the aged-care sector should you ever become—through you, Mr Temporary Chairman—aged-care minister, with the interventionist tendencies that you have just displayed here. The sector is terrified. In my consultations, what the sector tells me, Mr Temporary Chairman, is that they fear the interventionist dispositions that you display towards the sector, to the point where those interventionist dispositions cannot lead to the advancement of the welfare of the people in care.

I will circulate this; do not try to beat me, because I will circulate—

The Temporary Chairman:

I am not trying to beat you, Minister.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

through you, Mr Temporary Chairman, I will circulate, Senator McLucas, this part of the debate wide and far to demonstrate your appalling lack of knowledge as to how the accreditation—

The Temporary Chairman:

Are you saying I have an appalling lack of knowledge?

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

This will all be in Hansard.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

through you, Mr Temporary Chairman, as to how the accreditation agency works and also your intentions should you ever—

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

Should she ever—

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

should she ever, Mr Temporary Chairman, become Minister for Ageing.

The advice that I can give you again is that spot checks will range over all 44 outcomes. That is the advice that I can give Senator McLucas, Mr Temporary Chairman. The range of outcomes that will be looked into as a result of spot checks will in fact be determined by the independent agency, and often as a result of specific advice that is received. In terms of why it is not made compulsory to check against all 44 outcomes, I have in my substantive remarks mentioned to Senator McLucas—and everybody in the aged-care sector would have to agree—that a full audit against all 44 outcomes not only is very disruptive and often unnecessary, depending on what the agency is looking for specifically, but also will cost the sector $21 million a year.

If Senator McLucas wants to advocate that to the sector, I would strongly suggest that she hurries out after this debate, if she has the conviction. Mr Temporary Chairman, through you I would ask Senator McLucas, if she has the conviction of her outrage that she is expressing, for her to quickly put out a media release—and we will give you a hand if you like. I will give you a hand to write it; I will give Senator McLucas, Mr Temporary Chairman, a hand to write it and to distribute it to the sector. And I would like Senator McLucas to come back into this chamber at some stage and inform us honestly of what the reaction from the sector is.

So Senator McLucas can seek to verbal me; she can seek to verbal the government. But I am just not going to cop that because, since it has come to power, this government has done more to bring the aged-care sector into the 21st century than any other government in the history of Australia. Since I have been minister I have had to respond to the difficult issue of limited cases of physical and sexual abuse within the aged-care sector, and I have sought to respond as openly and as transparently as possible. Through my efforts, and the efforts of the sector, the government has committed over $110 million to a package of reforms that will help to better guarantee the safety of elderly and frail residents within the aged-care sector of our country. That should be given more recognition by the opposition including Senator McLucas, who regularly comes into this place and seeks to besmirch and belittle the reputation of the sector.

We can keep on going like this all night—and I am happy to if you wish—but, strongly through you, Mr Temporary Chairman, I simply suggest to Senator McLucas that she develops some goodwill towards the good that the government is doing. If we have to have a debate, it should be on the basis of an honest appraisal of that. That has always been my appeal to Senator McLucas, Mr Temporary Chairman. You will gather, Mr Temporary Chairman, that I feel very strongly about this. That is because very rarely has the opposition come into this place and given credit to a government that has done so much for the aged-care sector in the last 10 years, particularly during the difficult nine months that I have been minister.

I do not know how to appeal for bipartisanship in this area, but I have given good explanations to Senator McLucas in relation to an amendment that has absolutely nothing to do with the substantive amendment that we have before us today and which the government will be addressing via substantial legislation, which will be introduced into this place in a short period of time. What I seek from Senator McLucas is goodwill and an honest and realistic appraisal of the good work that this government has done. We can argue around the edges. That is stuff of day-to-day politics, and I can accept a bit of political argy-bargy. But I do not think that the sort of misrepresentation that is going on in this chamber, including during this debate, Mr Temporary Chairman, is befitting of sensible politics or sensible policy making and implementation.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

Mr Temporary Chair—

The Temporary Chairman:

Temporary Chairman.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I prefer the word ‘chair’; I am sorry. I moved this amendment in the interests of bipartisanship. This amendment simply puts the minister’s words into legislation. He said that every home will receive one unannounced spot check each year—and that is what this amendment does. I recognise that the sector has a view, but I also recognise that the people—the 166,000 residents of residential aged care and their families—also have a view. And I dare say that, if you asked any of those families what the minister meant when he said ‘one unannounced spot check each year’, they would tell you that they would expect that the facility that their grandmother, aunty or mother was in would be assessed against all 44 outcomes at least once a year, and that that visit would not be announced.

All I am seeking to do is to put the minister’s words into the legislation. I reject out of hand any allegation that I have tried to besmirch or belittle the reputation of the sector. It is quite the opposite. I recognise that we have excellent aged-care provision in most of the facilities that are in operation in this country. But, unfortunately, there are some facilities that are not excellent. I referred to one in my second reading debate speech today. To fail 30 of 44 outcomes is appalling. I reserve the right to be critical of a government that does not put into place a system that ensures that the community understands that and understands the process by which those residents are being cared for.

The delay—and I have made this point on a number of occasions—between the time when a facility is assessed and when that information is made available to resident families is, in my view, far too long. Yes, I recognise that there has always been improvement after someone has failed 30 of 44 outcomes. You would want to hope that there would be an improvement, to be frank. But there were no sanctions applied. I reserve my right to be critical of this government and the processes that it has in place to apparently retain confidence in aged care in Australia. I reject out of hand that I have besmirched or belittled our aged-care providers in Australia. I have not, as a group. But, if there are some that are not performing, it undermines the quality and the confidence that all of us have in the aged-care sector if we do not shine the light on them and do not turn around the practices that are occurring there.

I say to you, Mr Temporary Chairman, that the confidence in the sector will be ensured by recognition of those providers who provide quality care—and those providers who are providing quality care welcome it—and recognition that those that are not providing quality care are being dealt with. This amendment seeks to put into place what the minister has actually said, and I commend it to the chamber.

Question put:

That the amendments (Senator McLucas’s) be agreed to.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I wanted to ask the minister about the government’s response to the first of the Australian Greens’ amendments. I have spoken substantially to these amendments already in my second reading contribution. They both deal with issues relating to sexuality and same-sex couples being recognised and not discriminated against. The second amendment is about making clear that, where someone was having their assets assessed as to whether or not their family home would be considered an asset, that definition included a same-sex partner. The minister commented in his second reading reply that the government did not intend to support that.

I have a couple of questions for the minister. I asked in my second reading contribution whether the government currently interpreted the definition of ‘member of a couple’ to include a same-sex partner or not, because the definition talked about a marriage-like relationship and I was not sure how the government currently interpreted that ‘member of a couple’ clause. Then I wanted to ask what the government’s position is in relation to my first amendment, which is seeking to amend the objects of the act to include all of the bases on which people should not be discriminated against in getting access to aged-care services.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

During my substantive reply to the second reading speeches I thought that I had significantly addressed the major concerns expressed by Senator Nettle. I have just asked my advisers whether we have seen Senator Nettle’s second amendment and I must admit there is some confusion about it. As the time is approaching 6.30 pm, we could take that on notice and review the situation over the dinner break.

Sitting suspended from 6.30 pm to 7.30 pm

Senator Nettle asked for the advice of the government in relation to her amendment (1). I undertook to consult over the dinner break, and I have done so. I would like to give her the government’s response.

Senator Nettle has suggested that an amendment be made to the bill that includes a same-sex partner in the definition of member of a couple for the purpose of assessing a person’s assets on entry to residential care. Asset tests for entry to residential care are carried out by Centrelink and/or the Department of Veterans’ Affairs and are therefore guided by the Social Security Act 1991 and the Veterans’ Entitlement Act 1986.

The process for determining how assets are considered for two people in a home is complex. There are many kinds of couples who share a home—for example, mothers and daughters, cousins and close friends. The way a home is treated for the purpose of an aged-care assets test depends on who owns the home—in other words, what names are on the title—and whether a person left behind is providing care and is entitled to a means-tested income support payment from the Department of Veterans’ Affairs or Centrelink. Therefore, the sexual orientation and status—homosexual or otherwise—is not the primary consideration. I am now referring specifically to Senator Nettle’s proposed amendment (1). The status of the person remaining in the home—in terms of being considered a carer and an owner of the home—is the primary consideration.

Because of these facts, amending the legislation—and this is advice that I have sought across government—to reflect Senator Nettle’s suggested amendment is a complex task, I have been advised, that would involve more than just my portfolio. That is a key consideration in the response that I am providing. Further consideration would need to be given to the broader implications for at least two other acts of parliament: the Social Security Act and the Veterans’ Entitlement Act.

I therefore reiterate that on entry to aged care the consideration of a person’s assets is primarily about ownership of the home and the pension and carer status of the carer remaining in the home. Therefore we need to consider amendments such as the one that has been suggested by Senator Nettle on a whole-of-government basis—not in an ad hoc way, as the government believe we would be doing if we considered and approved the amendment that is being proposed by Senator Nettle. I appreciate that that may not be the answer that Senator Nettle wants, but it is provided in good faith.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Nettle, you need to get leave to move the two amendments together.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I was checking the government’s position in relation to both the amendments. If the position was the same, I thought I would move them together. That is why I asked the question. Minister, was that in response to amendment (1) on the sheet?

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

The government’s position is consistent for both amendment (1) and amendment (2). I have explained the government’s position on sexual orientation and status in what I have just said, and earlier on, during my summing up speech subsequent to the speeches made in the second reading debate. I referred to your amendment by saying:

The chief amendment proposed by Senator Nettle is an additional qualification to the definition of a member of a couple. The amendment alters the definition to specifically refer to same-sex partners.

I went on to say what I have just said in relation to both amendments:

The government believes ... that these issues should be considered through a holistic examination of all government legislation rather than in an ad hoc way and is currently looking closely at further eliminating unfair discriminatory treatment against interdependent relationships.

So the government’s attitude applies to both amendment (1) and amendment (2). I am sorry about the confusion. Prior to dinner I thought that we were dealing with another amendment—other than what was contained on the sheet. I apologise for any confusion on my part.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I seek leave to move the two amendments together.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I would prefer it if we could deal with the two amendments separately, given the minister’s indication of the complications for the second one.

Leave not granted.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I move:

(1)

Schedule 1, page 3 (after line 6), before item 1, insert:1A Paragraph 2-1(1)(e) After “gender”, insert “, sexual orientation”.

This amendment is to insert new words into the objects of the act where there is a list of all of the factors for which people who are receiving aged care should not be discriminated against. The factors go to the issues of language, ethnicity and gender. The Greens’ amendment here is to include sexual orientation there. That is the phraseology that is used in the international arena in dealing with this issue.

The amendment is about seeking to make clear at the beginning of the act, in the objects of the act, that in accessing aged-care facilities it is not the intention that people should be discriminated against on the basis of their sexual orientation. In my speech in the second reading debate, I spoke about some of the examples of people who are in same-sex relationships and who have found themselves having difficulty getting into an aged-care facility or being in an aged-care facility that is run by a religious organisation that has a particular view in relation to homosexuality and how that is played out for them. I also spoke of instances where people have had to deal with discrimination from other residents in the home or from staff who have not been trained properly or appropriately to deal with the issues of complexity.

It is a rising issue that the gay and lesbian community are very involved in. For example, a number of people who are HIV positive are finding themselves in nursing homes. They have particular care needs that relate to their circumstances. They want to ensure that they have aged-care workers in those facilities who are sensitive to their needs. That is what this amendment is about.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I thank Senator Nettle for dealing with these two issues separately. Labor will support Senator Nettle’s amendment (1). It is a simple amendment that identifies a group of people who were not included in the original drafting of the act. Paragraph 2-1(1)(e) simply lists a whole range of people to be facilitated to gain access to aged-care services, regardless, it says:

... of race, culture, language, gender, economic circumstance or geographic location …

I suggest to the government that in 1997, when this act was being drafted, it was an oversight; it was something that was not considered. Like Senator Nettle, I have been in touch with a range of people from the gay, lesbian and transgender community who have expressed a whole range of concerns about the way they have been treated or their fears of the way they might be treated if they were to enter residential aged care.

This is a sensible amendment. It would recognise right up front in the act that there are people in the world who want to go into residential aged care who are gays and lesbians and that they need to be treated with the respect that we give to all other people. It is a simple statement of fact. It does not go at all to the way that assets will be treated; it does not go at all to the financial implications of whether or not the person is partnered or not partnered and what financial relationship the person might have had prior to their entry into aged care. This amendment simply says that, along with people who are geographically isolated or who are in difficult financial circumstances who need to be facilitated into aged care, there is another group of people—gay, lesbian and transgender people—that we need to recognise. It is a very straightforward amendment and Labor will support it.

Question put:

That the amendment (Senator Nettle’s) be agreed to.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I move Australian Greens amendment (2) on sheet 5068:

(2)

Schedule 1, page 4 (after line 31), at the end of the Schedule, add:4 Subsection 44-11(1) (at the end of the definition of member of a couple) Add:; and (c)         includes a same sex partner.

This amendment deals with the definition of a couple. It goes to the issue of assets testing before going into a nursing home and whether or not the family home is considered to be excluded from the assessment of the value of the assets. As I went through in my speech in the second reading debate, that deals with the issue of a partner. The definition of a partner includes the reference to a member of a couple. Then, when you go to the definition of ‘member of a couple’, the two clauses which are there deal with, firstly, a marriage relationship, while the second clause deals with a marriage-like relationship. To my reading of that definition of ‘member of a couple’, it could include a same-sex couple. That was not clear. The intention of this amendment is to make clear that it should include a same-sex partner.

Perhaps I could ask the minister about that issue—although I think he answered it partly before. From my reading of the current definition of ‘member of a couple’, to me that definition could include a same-sex partner. It does not make it clear. It does not rule it out. It is ‘a marriage-like relationship’. To me, that could include a same-sex partner. That was not clear and the intention of this amendment is to make it clear that it should include a same-sex partner. But, if the minister were to indicate what the current government reading of the existing definition of ‘member of a couple’ is—whether or not as it currently stands it is considered by the government to include a same-sex partner—that would be appreciated.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I sought to be as helpful as I could to Senator Nettle when I advised her of the advice to me. There are many other kinds of couples who are referred to as couples—as I said, mothers and daughters, cousins, close friends and so on. But I also informed Senator Nettle and the Senate that, in terms of including the definition that she is seeking to have included by this amendment, the government prefers to deal with the issue in a holistic way.

I have just received some further advice. I tender it with a view to being specifically of assistance to the Senate. It is that this clause is not being interpreted to include a same-sex couple.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for that answer. That explains the situation I was talking about in my speech in the second reading debate. A friend of mine had their family home not excluded from the value of the assets. The advice she received at the time was that it was because she was in a same-sex relationship. I read that clause differently. The government clarification that that clause does not include a same-sex couple would explain the reason she was treated differently from a member of a heterosexual couple.

The minister also spoke about the desire to deal with these issues holistically. Legislation does not come to the parliament holistically. It comes in an ad hoc way, so that is the way in which we are able to amend the legislation—as it comes along. That is the reason why I am doing this now. In addressing my first amendment, the minister spoke about the need to consult about what impact putting in the reference to not discriminating on the basis of sexual orientation would have on other departments. I ask the government to undertake that consultation, because I want to assure the minister and the chamber that on the next occasion that we have an aged-care amendment bill before us I will move a similar amendment. I flag that now so that, if there is a need to do that consultation and see what the impacts are, the government can do that and perhaps be in a better position to deal with this the next time we come to one of these pieces of legislation and I again move that we deal with this issue of not discriminating against people on the basis of their sexual orientation. I will leave my comments there and commend my second amendment to the chamber.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I want to get an indication from the minister on this. He indicated earlier that there were other portfolios that this affects. My reading of the proposal is that it simply defines a couple and then uses that definition of a couple to work out what a concessional resident is and what an assisted resident is. It also assists the section of the act that says how to work out the value of a person’s assets. I am unsure, but am seeking advice, of what other portfolio areas would be involved in that. It might be social security; it may be other areas. But I need to understand that so I can indicate which way we will vote.

Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Link to this | Hansard source

I have just received some fairly quick advice. What we are considering at the moment is schedule 1, which is titled ‘Harmonising aged care and pension requirements in relation to income streams and assets disposal’. Just to make it clear to anybody listening to the debate, including senators in this place at the moment, it reads:

After subsection 44-10(1)

Insert:

(1A)   If a person who is receiving an *income support supplement or a *service pension has an income stream (within the meaning of the Veterans’ Entitlements Act 1986), the value of the person’s assets ...

The amendment refers to the Veterans’ Entitlements Act, 1B refers in similar terms to the Social Security Act of 1991 and 1C refers to the Veterans’ Entitlements Act of 1986. For the benefit of Senator McLucas, they are the acts that are being referred to.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Aged Care, Disabilities and Carers) Share this | Link to this | Hansard source

I would like to say thank you, but I do not know that that is particularly helpful. That is all about how you treat the assets in terms of the amendments that the minister moved. However, in the interests of dealing with this matter, I indicate to Senator Nettle and to the chamber that the Labor Party will not support this amendment at this point in time, but we absolutely agree with the intent of it. The act as it stands is unclear.

The minister has indicated that a person who is in a relationship of a homosexual nature is not treated as a couple. That has a whole range of other impacts when that person is assessed for entry into residential aged care in terms of their assets assessment. It has implications for how the person who remains in the family home will be treated if one member of the partnership enters residential aged care. If the person does not jointly own the home, there will be implications for how that home is treated as an asset.

Senator Nettle has raised some issues that need to be dealt with. Labor has indicated for some time that in government it will do a full audit of all legislation to ensure that discrimination against gay, lesbian and transgender people is removed. This is clearly one of those pieces of legislation for which action is required. I am disappointed in the minister’s response. I do not think that Senator Nettle’s amendment would have affected the Veterans’ Entitlements Act or the Social Security Act. However, I am not absolutely confident of that position. I hope that Senator Nettle understands the reasons why we cannot support her amendment at this time, but she has raised a very significant and important issue.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.