Additional comments by Coalition Senators
1. 1 The Coalition
Senators do not oppose the Bill and commend the ongoing commitment of the Department
of Health and Ageing and of the various providers of high-standard care to the
aged members of our community.
1. 2 The Aged Care Act,
introduced by the Coalition Government in 1997, created the legislative support
necessary for ensuring the rights of our older citizens to live with dignity
and respect in appropriate facilities. Currently, the aged care industry is
well regulated, but after ten years of operation, evolving business practices,
and changed community standards and expectations, Coalition Senators
acknowledge and support the need for enhancement of the act to ensure the
protection of our older and more vulnerable citizens.
1. 3 Although we support
the mainly non controversial amendments of the Bill in principle, we note
several areas of concern raised, by providers in particular, that should be
2. Points of Concern
2.1 Several submissions
raised concerns about the standard of consultation by the Department of Health
and Ageing (DoHA) on the bill and the lack of opportunity to view the proposed
guidelines or amended Aged Care Principles. There was concern expressed that,
contrary to the view of some peak bodies, the Department promulgated the view
that all sectors of the industry were supportive of the proposed amendments.
One witness at the public hearing
‘...it is certainly true that there was consultation with the aged-care
sector on the detail of the material that was in the bill. What is not
recorded in the explanatory memorandum is that we did not agree with all of it.
We were spoken to, but there were a couple of issues—and one issue in
particular that I have highlighted in this submission—where, from my
recollection, no-one agreed with the proposition. I thought it was worthwhile
making that point because silence is sometimes taken as assent, and we did not
Aged Care Principles will be a legislative instruments, witnesses stated their
ongoing frustration, with one witness 
‘It is extremely frustrating. We have on not
infrequent occasions in the past come to this committee and others to give
evidence; you are dealing with a bill but you do not know the details of the
principles that are going to sit behind that. Then you have a secondary issue
with the department which is an administrative instrument that sometimes you
can reach agreement on but many times you cannot.’
The concern of the various bodies in relation to
the guidelines and Principles was addressed in a supplementary submission from DoHA
 stating that:
‘The Department is preparing a comprehensive Guide to
the new arrangements, which, subject to the Bill’s passage through Parliament,
will be sent to approved providers.’
But this ongoing concern regarding timeliness
should be addressed.
The legislation is now about 1,000 pages long with
more than a dozen subsets of regulations. It is now an extraordinarily complex
regulatory environment that directors of nursing, managers and CEOs are
expected to understand, and this complexity is further exacerbated by the
unknown content of guidelines and regulations.
2. 3 Concern was raised
in regard to broadening the current section 8-3 of the Act by adding proposed
section 8-3A in respect of “common key personnel who have ‘significant
influence’ planning, directing, or controlling the activities of the entity”. This is of particular
concern to church based organisations, many of which have an overarching body
which delegates authority to the particular undertaking. Whilst it is
acknowledged that transparency is an issue in some management arrangements,
further clarification, not covered in the amended submission of the department, should be urgently provided
to those concerned.
2.4 Despite comments in
the Explanatory Memorandum that there would be no additional costs imposed on
the providers, evidence suggests this will not be the case. This point was
specifically raised during the public hearings in relation to the additional
police checks required by the amendments. Witnesses indicated that checks
undertaken in compliance with the current requirements had cost the industry
around $30 million.
Because of the difficulty in attracting staff and the salaries paid, employers
generally meet the costs of these police checks. The industry generally works
on a per capita cost of $100 including a printout from CrimTrac costing $50-$60 and other administrative and record-keeping
costs. Whilst all sectors of the industry acknowledge the need to ensure the
safety and privacy of vulnerable residents, providing such checks for staff
that may not necessarily come into contact with residents is likely to result
in substantial further costs to operators.
2.5 The issue of police
checks for tradespersons called upon by approved providers in emergency
situations was noted as a concern. However, it is noted that, in the
departmental supplementary submission,
independent contractors who are not under the control of the approved provider
will not be required to obtain a police check.
2.6 Concerns have also
been raised regarding the sanctions proposal and the resultant increased power
of the Departmental Secretary. Issues raised in this particular context
included the new amendment 65-2(2). The amendment will require the Secretary
to give paramount consideration to the effect of non-compliance that
threatens or would threaten the health, welfare or future care of recipients.
As indicated in the submission of the Aged Care Alliance this amendment raises
the ‘question of the purpose of sanctions and how that determination is to be
arrived at.’ 
The power to impose sanctions as a deterrent against future non-compliance
introduces ambiguity and complexity into the legislation. Further questions
also arise as to whether the Department should be required to consult the
family of residents or others in relation to problems with approved providers
before deciding on sanctions.
2.7 The reporting
requirements in relation to ‘missing’ residents are also of concern to many
approved providers, with providers suggesting that there had been unanimous
disapproval for this measure during consultations. Whilst all supported the
need to provide safe and consistent care for residents, the need to separately
advise the department in addition to the police is questioned. The operators
were concerned that enquires by the department may lead to unacceptable
limitations on the freedom of movement enjoyed by residents.
2.8 An important issue
raised by various witnesses related to ACAT assessments. Most approved
providers welcomed the amendment relating to unnecessary assessments.
However, the issue of most concern to approved providers related to the
default payment of $44.14 per day when an ACAT assessment rates the new
resident as low care, but in reality the resident requires (and receives) high
care that normally attracts a subsidy of $135.00 per day. There is sometimes a
delay of up to 12 weeks
before an ACAT re-assessment is made, but there is no backdating of the subsidy
to the higher care rate. This has resulted in lost subsidies of up to $50,000
for some approved providers. 
Any delays in rectifying this matter are unacceptable given the already
threatened viability of the industry and the Coalition senators urge the
Minister to act promptly in this matter.
3.1 The Coalition
Senators do not oppose passage of the Bill as the overall thrust is to provide
greater surety and safety for current and prospective aged care residents and
their families, but recommends that the Department and the Minister provide
further clarification on the issues raised in these additional comments to
approved providers and, where appropriate, seek further consultation with the
various sectors of the aged care industry.
Senator Sue Boyce
Navigation: Previous Page | Contents | Next Page