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Australian
Aged Care Quality Agency Bill 2013
Australian
Aged Care Quality Agency (Transitional Provisions) Bill 2013
Introduced into the House of
Representatives on 13 March 2013
Portfolio: Health and Ageing
1.1
The Australian
Aged Care Quality Agency Bill 2013 seeks to establish a new Australian Aged
Care Quality Agency (the Agency) that will replace the existing Aged Care
Standards and Accreditation Agency. The key measures contained in the bill are:
- establishment of
the new Agency as a prescribed agency under the Financial Management and
Accountability Act 1997;
- appointment of a
Chief Executive Officer (CEO) with the following functions:
- to accredit
residential care services;
- to conduct
quality reviews of home care services;
- to register
quality assessors of residential and home care services;
- to advise on
services that do not meet standards and to promote high quality care,
innovation and continuous improvement among providers of aged care;
- to provide
information, education and training to approved providers of aged care; and
- other functions
as prescribed;
- establishment of
an Aged Care Quality Advisory Council;
- provision for
the appointment processes for the CEO, staff and Council members; and
- reporting requirements.
1.2
This bill also
includes offences for misusing protected information (information acquired in
the course of the Agency's functions which is personal or relates to the
affairs of an approved provider) and powers for the CEO to disclose protected
information in certain circumstances.
1.3
The Australian
Aged Care Quality Agency (Transitional Provisions) Bill 2013 seeks to transfer
the assets and liabilities of the Aged Care Standards and Accreditation Agency
Limited (ACSAA) to the Commonwealth on 1 January 2014 at the same time that the
new Agency is established. It will replace to the ACSAA with references to the
Commonwealth in any instrument, substitute the Commonwealth for ACSAA as a
party to any legal proceedings, transfer staff and records to the Commonwealth
and deem applications made to ACSAA that have not been resolved to be
applications to the new Agency.
Compatibility with human
rights
1.4
The bills are
each accompanied by self-contained statements of compatibility.
Australian
Aged Care Quality Agency Bill 2013
1.5
The statement of
compatibility notes that the bill promotes the enjoyment of the right to the
highest attainable standard of physical and mental health guaranteed by article
12 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR).
1.6
In addition, the
bill may also be viewed as promoting the right of a person to an adequate
standard of living guaranteed by article 11 of the ICESCR and also the right to
social security guaranteed by article 9 of the ICESCR. Other ICESCR rights may
also be engaged.[1]
The bill may also be viewed as promoting fulfilment of the positive obligations
of the State under article 17 of the International Covenant on Civil and
Political Rights (ICCPR), as well as a number of rights under the Convention on
the Rights of Persons with Disabilities.
Right
to privacy
1.7
The statement of
compatibility notes that the bill engages the right to privacy in relation to
personal data about individuals collected by staff of the Quality Agency in the
performance of duties or the exercise of powers or functions under the proposed
new Australian Aged Care Quality Agency Act 2013. The bill provides that
the information may be disclosed only for a limited number of purposes and
creates an offence of making a record of, disclosing or otherwise using
protected information except for permitted uses. This offence is punishable by
up to two years’ imprisonment.[2]
1.8
The CEO of the
Quality Agency is permitted to disclose personal information in a limited range
of circumstances in which it may be necessary to do so, for example to prevent
or lessen a serious risk to the safety, health or well-being of a care
recipient.[3]
1.9
An encroachment
on the right to privacy may be justified if it is shown to be adopted for a
legitimate objective, and is a reasonable and proportionate measure for the
achievement of that objective. The disclosure of information for the purposes
specified in the bill appear to be for legitimate purposes and the restrictions
on disclosure appear to be legitimate and proportionate to the achievement of
that purpose.
Australian
Aged Care Quality Agency (Transitional Provisions) Bill 2013
1.10
The statement of
compatibility notes that the bill engages the right to privacy guaranteed by
article 17 of the ICCPR. This is a result of the fact that the bill provides
for the transfer of records of ACSAA which may contain personal information to
the Commonwealth. Accordingly, the encroachment on the right to privacy must be
justified as a reasonable and proportionate means of pursing a legitimate
objective.
1.11
The statement of
compatibility states:
Item 5 of
Schedule 1 limits the range of records or documents that are to be transferred
to those records or documents that relate to an asset or liability of ACSAA
Limited that, by force of item 2 of Schedule 1 (when enacted), becomes an asset
or liability of the Commonwealth. This ensures that only such information,
including personal information, as is necessary to enable the Commonwealth to
take over the functions of ACSAA Limited is required to be transferred.
Any personal
information that is transferred from ACSAA Limited to the Commonwealth will
continue to be protected by the secrecy provisions in Division 86 of the Aged
Care Act 1997 and will also be protected by the equivalent provisions in
Part 7 of the Australian Aged Care Quality Agency Act 2013 (once
enacted). These provisions include a penalty of imprisonment for two years for
the offence of making a record of, disclosing or otherwise using protected
information except for permitted uses.[4]
1.12
The purpose of
the transfer is to facilitate the establishment of the new Australian Aged Care Quality Agency
and to permit it to take over functions previously carried out by ACSAA. The
purpose appears to be a legitimate one, and the safeguards which apply to the
transferred records under the new Australian Aged Care Quality Agency Act
2013 appear to ensure that the use of those records will be appropriately
limited and protected.
1.13
The
committee considers that the bill does not give rise to issues of
incompatibility with human rights.
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