Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 5652 (revised) together.

That amendments (1) and (2) on sheet 5652 be taken together.

(1)    Schedule 1, item 7, page 5 (lines 21 and 22), omit paragraph 8-3A(1)(a), substitute:

           (aa)    if the entity is a non-profit organisation with voluntary board members—a person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the entity at the time;

             (a)    for any other entity—a member of the group of persons who is responsible for the executive decisions of the entity at that time;

(2)    Schedule 1, item 7, page 6 (after line 5), after subsection 8-3A(1), insert:

     (1A)    To avoid doubt, a person is not one of the key personnel of a non-profit organisation merely because that person is a voluntary board member of the organisation.

I want to comment on the amendments which are about the definition of key personnel but, as indicated in my speech in the second reading debate, I have a couple of questions that I seek clarification about from the minister. The first is on the issue of police checks for emergency contractors that are brought in in emergencies—for example, a plumber who is brought in at night to fix a water leak. We need to ensure that the existing supervision conditions will remain and that aged-care providers will still be able to use those existing provisions. This is an issue that was raised during the committee inquiry. This, amongst other things, was of specific concern.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

Senator Siewert, I am not sure of the question you are asking. Could you please make that a bit clearer?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

As I said, the legislation widens the provisions around police checks. The concerns that were raised during the committee inquiry centred on the ability of outsiders to be called in to a facility in the event of an emergency without a police check being required and how that would occur. As I understand it, under the existing provisions, that person must be supervised at all times when they are in the facility. Again, as I understand it, the aged-care providers correctly said that they thought they might not be able to do that anymore and they sought assurance that that provision would still be enabled.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I understand that the emergency circumstances are not changed. So if it is the middle of the night and the toilet cistern breaks and the plumber needs to come in, those circumstances have not changed. Does that answer your question?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Yes, thank you. I thought it important to clarify the position. As I said, it has been causing some angst. The other issue—and, again, I specifically referred to it in my comments earlier—is that of missing residents and sanctions. This is causing a lot of concern for both the aged-care sector and its customers. They are concerned that the issues around sanctions are not actually provided for in the legislation but that they will be in a regulatory instrument. The concern is that that will have a negative effect—that providers will, in fact, start shutting down facilities. So we are seeking an understanding of what those sanctions are and how they will be used.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I am advised that the question of missing residents is not actually part of the bill, but that it will be part of the principles. So it is not part of the current debate, if I can put it that way. We are happy to provide you with further information but, for the purpose of understanding this debate, I am advised that it is not part of this legislation.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The problem with that answer is that the question has come up as part of this debate. It also came up quite strongly during the committee inquiry because people are aware that that is what has been provided for in the principles. The deep concern for a lot of the providers—and, I must admit, for the Greens—is that there is a very strong punitive and compliance approach being taken by this government. We can understand why and, as I have stated before, we understand the need for government regulation. However, once again we are seeing legislation through regulation—in this case, the principles. These issues were raised during the debate. There are serious concerns about the issues around missing residents, the implication that sanctions would be applied and, further, how those sanctions would be applied.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I understand that is a reasonable question and I am happy to provide the information that I can. As I said in my second reading speech, the change to the principles that goes to the question of missing persons is not, in any way, intended to infringe the rights of residents. The principles of residential age care are designed to encourage independence and free movement of older people. As you would know, Senator Siewert, the protection of the rights of those people, ensuring their rights of independence and movement, needs to be balanced with their protection.

So the purpose of this particular piece of legislation is to address the question of what would occur after a person was found missing. Unfortunately, there have been events where a person has been found missing and the department has not been advised that that has occurred. Why should it be a requirement that a residential age-care provider tell the department? So as to ensure the safety of other residents and that this does not lead us to further uncover inappropriate care. So the requirement that will be in the principles will be that the residential age care facility must advise the department as soon as they are concerned—in the long term—for the resident in the sense that they cannot locate them. For example, if they have contacted the police, one would expect that they would have advised the department. The reason for that is so the department can make a judgement about whether or not other residents are safe. To be frank, in most cases the person who has gone missing probably has some form of dementia, but we have to make sure, in those circumstances, that the security provisions of the facility are good enough to make sure that all the other residents are also appropriately cared for.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the parliamentary secretary for her answer. I do appreciate why the government is making those changes. The specific concern is what the department does when it is informed. I understand—both from question and answer sessions during the committee inquiry and from further information provided on notice—that sanctions may be applied. The sector wants to know if it is true that such sanctions may—and I am not saying ‘will’, but ‘may’—be applied; that it may be one of the responses. What will those sanctions be and under what circumstances would they be applied? If sanctions are not going to be applied, we will be satisfied, sit down and let the matter rest.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I am trying to be helpful here. From the advice that has been provided to me, the changes that are proposed by the government simply alleviate confusion and reflect past and current practice, rather than expanding the range of matters that will be taken into account. Sanctions will be applied based on what has occurred not what might occur in the future. I think that that, possibly, answers your question.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will try to get this over with. I am not trying to be difficult; I just want to clarify the issue around the sanctions. If a person goes missing and it results in a breach, will that be the circumstance under which a sanction will be applied, and will there be new sanctions associated with these new provisions?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I think that I can now be of assistance. I think, Senator Siewert, that you have connected the missing person question and the sanctions question.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Siewert interjecting—

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

No? From your question, I am reading that you are asking whether, if a person goes missing, there will be a sanction imposed. The legislation does not connect those two issues, but I have obviously got your question wrong. Please try again.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I think your advisor was nodding and I think they understood where I was coming from. I am not linking the new sanctions. With the reporting that is going on, it was implied in a departmental paper—and I do not have that with me—that there could be sanctions specifically resulting from the reporting to the department of a person going missing once the department investigates. My question therefore is: are the sanctions that are likely to be applied going to be new ones under the new principles, or will they merely be for when a breach occurs as a result of a person going missing—in other words, due to poor performance or whatever? That is what I am seeking clarification on.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I think I follow your question. The point I think you are asking about is: if a residential aged-care facility has a missing person, the residential aged-care facility contacts the police—that is correct—and then the next thing the RCF has to do is contact the department. That is what we are requiring through the principles. You are suggesting that, following that, sanctions may be applied. I think there is a big jump between the point at which there is contact with the department and what might happen after that. The purpose of contacting the department is so that the department can be assured—and there will be a range of ways that that assurance can be achieved—that the residents in the facility are not at risk. Most of the time when a person goes missing it is because of a form of dementia. On the odd occasion—and it is a very unusual occasion—there are unsafe practices occurring. If that is the case, the government is of the view that we need to be assured that the residents in the facility are safe. To extrapolate from that event to sanctions being applied is a huge jump. If the department were concerned that the facility was not safe, if there was an honest fear, then I think you would ask for the accreditation agency to come in and have a look at the facility. If there were a concern, then that process would be started. But to go from reporting a missing resident to the imposition of a sanction is a massive jump.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I thank Senator McLucas for her answer. I think that she has clarified that and I am clear on what the process will be. I raise this because aged-care providers and consumers are raising it. They are saying that they have concerns that it will, as I explained earlier, lead to a lockdown. It is mainly the threat of sanctions—then they will take a much more precautionary approach. The fine balance that exists at the moment between making sure people have their liberty while living in a locked situation may go the wrong way. I understand now, I hope, where the government is coming from on that. There will not necessarily be sanctions imposed without an investigation process. I thank the minister for her answers.

I have one more short question and then I promise to move my first set of amendments. My question is around ACAT versus ACFE. I will not go into detail here between ACAT and ACFE, but as I understand it there are ongoing issues about reassessments and I am pleased that there is now more provision for the assessment process being speeded up. I understand that when the government are carrying out their review next year they will be looking at how they can deal with that assessment between ACAT and ACFE. I appreciate that that is a very difficult situation, which is why, I must admit, we have not attempted to move an amendment on this—because it is an ongoing issue. I am just seeking the government’s reassurance that this issue will be taken into consideration during that process.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

Yes.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I promised it would be short! These amendments specifically relate to the definition of key personnel. As I indicated in my speech in the second reading debate, there is a deal of concern in the not-for-profit aged-care sector about the amendments the government is making to the definition of key personnel. As I said earlier, we understand why those amendments are being made, but we do think that they will place an onerous burden on not-for-profits. When you consider that the not-for-profit organisations provide around 65 per cent of aged care, you are talking about impacting on a large number of our aged-care providers. What we have sought to do—and this is our second go at this amendment so that we can tie this down and hopefully still maintain the intent of the government’s amendments—is to more clearly define when a not-for-profit voluntary board member is counted as key personnel and when they are not.

As I said in my speech in the second reading debate, many of the not-for-profit organisations have voluntary boards, there are a large number of boards, and some of those people will not have any hands-on involvement in the running of the aged-care facility. So we are moving this amendment to give some more assurance to not-for-profit providers that the burden of administration on them will not be so wide as to become crippling. I urge the government to consider these amendments to provide greater certainty for not-for-profit organisations.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I understand the motivation of Senator Siewert and the Greens and recognise their desire, but can I suggest that, though the amendments are well-intentioned, the way in which the amendments are framed means the outcome potentially will be, through a blanket exclusion, to miss people who are key personnel.

The policy intention of the amendments is to provide certainty, as you said, for approved people who will not be considered key personnel and to ensure voluntary board members are not unintentionally captured by the provision. However, it is important to note that voluntary and paid board members of an approved provider are already, and will continue to be, key personnel. Where an entity is related, such as a parent company, board members, whether voluntary or not, will only be considered key personnel if they are making financial or management decisions. That is the key difference. We are talking about a parent company where there may be—particularly if it is a not-for-profit company or entity—volunteers. They will only be captured if they are making financial or management decisions. But under your proposal they are excluded.

The reality is that there are people who sit on parent bodies who do make financial and management decisions, and this amendment bill is intended to ensure that those people are identified as key personnel. If they are making financial and management decisions about the operation of a residential aged-care facility, we need to know who they are so that other people do not get picked up and have to carry the burden if they make mistakes.

So I think your intent is well founded, but there are relationships between parent companies and their subsidiaries, not only in the voluntary sector but also in the for-profit sector, where there are people at that higher level who are making financial and management decisions that affect the operation of the service and who need to be identified as key personnel. As you know, Senator Siewert, being ‘key personnel’ under the act does provide a fairly important set of responsibilities, for good reason. We are caring for very vulnerable people. If people are making decisions that affect the operation of a facility, even at that somewhat extended level, they need also to be responsible for their decisions in the operation of the facility. I hope that explains the intent of our position and why we will not be supporting your amendments.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

I put on record that the opposition also understands the motivation of the Greens in moving this amendment. However, we agree with the government that the bill’s provision reflects the change in modern business practices and provides better protection for aged-care residents. As we understand it, while the provision allows for an examination of all relevant people, only those who are accountable are caught under the provision, and the minister has just confirmed that. For example, as we understand it, church leaders who do not involve themselves in the executive decisions of an aged-care service will not be included. On that basis, we will not support the amendment.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

As I said, I do understand the intent of the government’s amendments. We were very specifically trying to focus our revised amendment on not-for-profit organisations. We understood that the previous amendment was a little bit confusing in terms of who it would apply to. We totally understand the issues around the for-profits, but for the not-for-profits we were trying to ensure that those personnel who are involved in the financial arrangements and have significant influence over planning, financial arrangements et cetera were covered. I must admit that I am not entirely satisfied by the government’s answer. I will not belabour the point, but I seek the minister’s advice as to whether the government would be of a mind to have a look, in 12 months time, at whether this legislation is unduly impacting on not-for-profit organisations, to ensure that they are not suffering.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

There is nothing planned at the moment, but I am sure the minister will take on board your concerns. As always, we will be monitoring the operation of these amendments and the act in general and if, through the passing of these amendments, we have identified people who should not be captured then of course there will be a response. But that group of people is quite small. The reality is that even in the non-profit sector there are financial arrangements and financial structures where the current act does not capture people who are acting as key personnel without being identified to the department as such.

Question negatived.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens oppose schedule 1 in the following terms:

(3)    Schedule 1, page 34 (lines 10 to 23), items 115, 116, 117 and 118 to be opposed.

This is about the imposition of sanctions that relate to the future care of residents and future noncompliance. I will not reiterate the Greens’ concerns because I have been through them.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

I will put on record again, in very few sentences, the position of the opposition. We agree with the government that the secretary of the department must consider a number of matters in deciding whether to impose sanctions for noncompliance. The factors the secretary must take into consideration are: whether the noncompliance is of a minor or serious nature; whether an aged-care facility has a history of non-compliance; and whether the noncompliance threatens the health, welfare or interests of care recipients. In that context, we think that the government has got the balance right. On that basis, we will not be supporting this amendment either.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I thank Senator Cormann and Senator Siewert. Sanctions will be applied based on what has occurred and not on what might occur in the future. I think that encapsulates the response to your amendment, Senator Siewert. I think that, once again, you are trying to identify a problem and fix it, but the amendments that have been moved in this bill are actually fixing the problem that we all identify. So sanctions will be applied based on what has occurred, not on what might occur. In fact, you would run the risk of being sent to the AAT if you were to do something like that. I think the intentions of all of us in the chamber are the same; it is about how we do it. I think that the amendments in the government’s bill will in fact achieve that outcome.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the parliamentary secretary for that response. This is an issue of concern to the providers, and I think even that degree of clarification will be of benefit.

The Temporary Chairman:

The question is that schedule 1 stand as printed.

Question agreed to.

Bill agreed to.

Bill reported without amendment; report adopted.