House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Aged Care and Sport, the Hon. Anika Wells MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Aged Care (Consequential Amendments and Transitional Provisions) Bill 2024

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Aged Care (Consequential and Transitional Provisions) Bill 2024 (the Transitional Bill) makes transitional and consequential provisions to support the commencement of the Aged Care Bill 2024 (the Aged Care Bill). The Aged Care Bill will replace the Aged Care Act 1997 (the old Act), the Aged Care Quality and Safety Commission Act 2018 (the Commission Act) and the Aged Care (Transitional Provisions) Act 1997 (the old Transitional Provisions Act) as the Commonwealth's primary aged care legislation.

The Transitional Bill forms part of a package of Bills that will establish a modern rights-based legislative framework that focuses on the safety, health and wellbeing of older individuals and places their needs at the centre of the aged care system. Funding and regulation of programs will be targeted for the benefit of older individuals, their families and carers.

The Transitional Bill will repeal the old Act, the Commission Act and the old Transitional Provisions Act.

In addition, the Transitional Bill will make consequential amendments to Commonwealth legislation to reflect the repeal of the old law, ensuring references to them are read as references to the new Act and associated legislative instruments.

The Transitional Bill further provides for the legislative and administrative mechanisms to allow for elements of the existing aged care framework to move seamlessly to the new arrangements to be established under the Aged Care Bill. Importantly, this includes ensuring that continuity of care is maintained for older persons accessing aged care services through transitional arrangements which see their approvals to access care and the levels of care available to them safeguarded through transition.

Similarly, the Transitional Bill provides for the transition of approved providers of aged care to the new registration and regulatory framework for 'registered providers'. In addition, this will include those aged care programs which were previously outside the scope of the existing aged care legislation, such as the National Aboriginal and Torres Strait Islander Flexible Aged Care (NATSIFAC) Program and the Commonwealth Home Support Programme (CHSP), thereby ensuring consistent and effective regulation across the delivery of all aged care services by the aged care sector.

The Transitional Bill provides for the existing Commissioner and Aged Care Quality and Safety Commission to transition to their equivalent counterparts established under the new Act. This will allow continuing regulation of the delivery of aged care services to be maintained throughout transition.

Funding arrangements are integral to the operation of the aged care system. The Transitional Bill does not specifically address transition of funding arrangements nor the Government's commitment made on introduction of the Aged Care Bill that specified persons already in the aged care system would be no worse off as a result of transition. Instead, these matters are provided for in the Aged Care Bill itself and through its legislative instruments. This ensures that matters relating to aged care funding can be dealt with in a clear and consolidated manner, regardless of the timing of an individual's entry into the aged care system.

Human rights implications

The Aged Care (Consequential Amendments and Transitional Provisions) Bill 2024 (the Transitional Bill) is a companion bill to the Aged Care Bill 2024 (the Aged Care Bill). The Transitional Bill is necessary to give effect to the Government's Aged Care reforms.

The Transitional Bill directly engages the following human rights:

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the right to health in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 25 of the Convention on the Rights of Persons with Disabilities (CRPD);

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the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR) and article 22 of the CRPD;

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the right to work and rights at work in articles 4 and 6 of the ICESCR; and

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the right to access information in article 19(2) of the ICCPR and article 21 of the CRPD.

Right to the highest attainable standard of physical and mental health

The right to health is contained under article 12(1) of the ICESCR and article 25 of the CRPD. These articles refer to the right of individuals, including persons with disability, to the highest attainable standard of physical and mental health. The UN Committee on Economic Social and Cultural Rights has stated it includes the right to control one's health and body and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.

The Transitional Bill engages the right to the highest attainable standard of physical and mental health by ensuring individuals who entered the aged care system under the Aged Care Act 1997 (the old Act) can continue to receive the same level of care under the Aged Care Bill. Part 2 of Schedule 2 to the Transitional Bill deals with transitioning individuals, where individuals who were approved under the old Act to receive residential care, home care, or flexible care, or were approved for the Commonwealth Home Support Programme (CHSP) or the National Aboriginal and Torres Strait Islander Flexible Aged Care (NATSIFAC) Program, will be transitioned to the new system under decisions that the System Governor is taken to have made under the Aged Care Bill in relation to eligibility determinations, decisions that the individuals require access to funded aged care services and classification types that correspond to the type of care they were receiving under the old Act. This ensures individuals will continue to be able to access health facilities and goods, including nursing and personal care services, medication management services, therapeutic and allied health services and leisure and interest activities. The objectives of the Transitional Bill are therefore consistent with the right to health as they ensure continuity of care for those currently accessing aged care services under the old Act.

Right to privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. Article 22 of the CRPD outlines a similar right. Although the United Nations Human Rights Committee (Human Rights Committee) has not defined 'privacy', it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy under article 17 can be permissibly limited to achieve a legitimate objective and where the limitations are lawful and not arbitrary. The term 'unlawful' in article 17 of the ICCPR means that no interference can take place except as authorised under domestic law. Additionally, the term 'arbitrary' in article 17(1) of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The Human Rights Committee has interpreted 'reasonableness' to mean that any limitation must be proportionate and necessary in the circumstances.

The Transitional Bill limits the right to privacy for aged care workers and responsible persons of registered providers of funded aged care services as part of the consequential amendments implementing criminal history checks for a person seeking to work or already working as an aged care worker or responsible person. The amendment seeks to allow the disclosure of a person's criminal history when being assessed for employment or continued employment as a person in aged care. The assessment is undertaken to assess whether there is a risk to the safety of an individual accessing funded aged care services if the person were to be employed by a registered provider and was to work, or continue to work, with the individual accessing funded aged care services. The provision prescribes persons and bodies with exemptions to Divisions 2 and 3 of Part VIIC of the Crimes Act 1914 (Crimes Act) which would otherwise prevent the disclosure and taking into account of pardons for persons wrongly convicted, quashed convictions and spent convictions. The provision provides that before the Governor-General makes a regulation prescribing a person or body, the Minister must be satisfied that the person or body:

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is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with an individual accessing funded aged care services; and

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complies with applicable Commonwealth law, State law or Territory law relating to privacy, human rights and records management; and

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complies with the principles of natural justice; and

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has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of an individual accessing funded aged care services.

In line with the National Disability Insurance Scheme (NDIS) worker screening, certain offences, such as child-pornography related offences or serious assault against a child or vulnerable person, will result in an automatic exclusion if the person was

18 years old or above at the time of the offence. However, safeguards will be in place through a risk-based approach that will provide state and territory worker screening assessors with a framework for considering a person's criminal history and patterns of behaviour over time that would indicate potential future risk to an individual accessing funded aged care services. Worker screening assessors will undertake a rigorous process to determine the relevance of a particular event to whether an applicant poses a risk to individuals accessing funded aged care services. Worker screening assessors will consider:

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character references; and

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references from previous employers; and

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the nature, gravity and circumstances of the event and how it contributes to a pattern of behaviour that may be relevant to aged care related services such as personal care; and

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the length of time that has passed since the event occurred; and

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the vulnerability of the victim at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event; and

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the person's criminal, misconduct and disciplinary, or other relevant history, including whether there is a pattern of concerning behaviour; and

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the person's conduct since the event; and

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all other relevant circumstances in respect of their offending, misconduct or other relevant history, including attitudes towards offence or misconduct, and the impact on their eligibility to be engaged in relevant aged care related services.

These safeguards ensure that the process is fair and respects individuals' rights. They aim to balance the need for safety and the protection of vulnerable people accessing funded aged care services, with the individual's right to privacy. The more complete the information about patterns of behaviour, the more accurate the assessment of risk. Even offences that are minor, not violent or sexual in nature, are not directly related to aged care worker employment or happened some time ago, contribute to an assessment of risk.

In relation to the issue of access to information on spent, quashed and pardoned convictions, criminal history, including spent, quashed or pardoned convictions, are a key indicator of past patterns of behaviour. Ensuring that state and territory worker screening assessors are provided with a complete picture of a person's criminal history information will ensure that the risk assessment process is as accurate and well-informed as possible. This will not be known until the specific circumstances surrounding the pardoned or quashed conviction are considered by the worker screening assessors, which is why they need access to such information as proposed in the Transitional Bill.

Permitting prescribed persons or bodies to access detailed criminal history information is therefore considered reasonable and proportionate to achieve the lawful objective of protecting vulnerable people receiving care in the aged care system. Persons employed in the delivery of funded aged care services are in a position of trust and in many cases will have access to personal property, finances and medication of the individuals under their care. Criminal history is just one of a multitude of factors being taken into account for the purposes of screening workers, and the circumstances around pardoned, quashed and spent convictions may be relevant to the broader assessment of a person's suitability to work with an individual accessing funded aged care services. This approach also aligns with equivalent existing provisions in subdivisions A and AA of Division 6 of Part VIIC of the Crimes Act, which provide similar exemptions for the purposes of assessing persons who work, or seek to work, with children and persons with disability. This supports a harmonised approach to screening workers across the care sector and serves the legitimate purpose of protecting vulnerable individuals seeking care.

The provisions of the Transitional Bill ensure a thorough and fair risk assessment process, including safeguarding and transparency, while respecting the human rights and natural justice principles. The balance between the right to privacy and safety is maintained through a risk-based approach, ensuring that only relevant information is considered and that the restrictions are as minimally intrusive as necessary to achieve the Transitional Bill's objectives, ultimately safeguarding the safety and wellbeing of individuals accessing funded aged care services. While the Transitional Bill limits the right to privacy, it is justified as it does this in pursuit of the permissible legitimate objectives of the Transitional Bill, in a way that is reasonable, necessary and proportionate in the particular circumstances to achieving those objectives.

In addition, the Transitional Bill promotes the right to privacy through individuals maintaining their personal information as protected information for the purposes of the Aged Care Bill. Part 2 of Schedule 2 to the Transitional Bill deals with transitioning individuals, where individuals who were approved under the old Act to receive residential care, home care or flexible care, or were approved for the Commonwealth Home Support Programme (CHSP) or the National Aboriginal and Torres Strait Islander Flexible Aged Care (NATSIFAC) Program, will be transitioned to the new system under decisions that the System Governor is taken to have made under the Aged Care Bill in relation to eligibility determinations, decisions that the individuals require access to funded aged care services and classification types that correspond to the type of care they were receiving under the old Act. This ensures that personal information of individuals will continue to be protected information under the Aged Care Bill. The objectives of the Transitional Bill are therefore consistent with the right to privacy as they ensure continuity of privacy protections for those currently accessing funded aged care services.

Right to work and rights at work

Article 6(1) of the ICESCR protects the right to work, which includes 'the right of everyone to the opportunity to gain [their] living by work which [they] freely [choose or accept]'. The UN Committee on Economic Social and Cultural Rights has stated that the right in article 6(1) includes the right not to be unjustly deprived of work, and that this includes security against unfair dismissal. Under article 4 of the ICESCR, limitations to the right to work are permitted in so far as they are compatible with the nature of the right and 'solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportionate and the least restrictive alternative where several types of limitations are available.

The Transitional Bill limits the right to work for aged care workers and responsible persons of registered providers of funded aged care services as part of the consequential amendments implementing criminal history checks for a person seeking to work or already working as an aged care worker or responsible person. The amendment seeks to allow the disclosure of a person's criminal history when being assessed for employment or continued employment by a registered provider of funded aged care services. The assessment is undertaken to assess whether there is a risk to the safety of an individual accessing funded aged care services if the person were to be employed or continue to be employed by a registered provider. The provision prescribes persons and bodies with exemptions to Divisions 2 and 3 of Part VIIC of the Crimes Act which would otherwise prevent the disclosure and taking into consideration of pardons for persons wrongly convicted, quashed convictions and spent convictions. The provision provides safeguards such that before the Governor-General makes a regulation prescribing a person or body, the Minister must be satisfied that the person or body:

•

is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with an individual accessing funded aged care services, and

•

complies with applicable Commonwealth, State law or Territory law relating to human rights and records management; and

•

complies with the principles of natural justice; and

•

has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of an individual accessing funded aged care services.

In line with National Disability Insurance Scheme (NDIS) worker screening, certain offences, such as child-pornography related offences or serious assault against a child or vulnerable person, will result in an automatic exclusion if the person was 18 years old or above at the time of the offence. However, safeguards will be in place through a risk-based approach that will provide state and territory worker screening assessors with a framework for considering a person's criminal history and patterns of behaviour over time that would indicate potential future risk to individuals accessing funded aged care services. Worker screening assessors will undertake a rigorous process to determine the relevance of a particular event to whether an applicant poses a risk to individuals accessing funded aged care services. Worker screening assessors will consider:

•

character references; and

•

references from previous employers; and

•

the nature, gravity and circumstances of the event and how it contributes to a pattern of behaviour that may be relevant to aged care related services such as personal care; and

•

the length of time that has passed since the event occurred; and

•

the vulnerability of the victim at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event; and

•

the person's criminal, misconduct and disciplinary, or other relevant history, including whether there is a pattern of concerning behaviour; and

•

the person's conduct since the event; and

•

all other relevant circumstances in respect of their offending, misconduct or other relevant history, including attitudes towards offence or misconduct, and the impact on their eligibility to be engaged in relevant aged care related services.

These safeguards ensure that the process is fair and respects individuals' rights. They aim to balance the need for safety and the protection of vulnerable people accessing funded aged care services, with an individual's right to work. The more complete the information about patterns of behaviour, the more accurate the assessment of risk. Even offences that are minor, not violent or sexual in nature, are not directly related to aged care worker employment or happen some time ago, contribute to an assessment of risk.

In relation to the issue of access to information on spent, quashed and pardoned convictions, criminal history, including spent, quashed or pardoned convictions, are a key indicator of past patterns of behaviour. Ensuring that state and territory worker screening assessors are provided with a complete picture of a person's criminal history information will ensure that the risk assessment process is as accurate and well-informed as possible. This will not be known until the specific circumstances surrounding the pardoned or quashed conviction are considered by the worker screening assessors, which is why they need access to such information as proposed in the Bill.

Including quashed and pardoned convictions provides a more complete picture of a person's history and contributes to a more accurate risk assessment. An accurate assessment benefits both people accessing funded aged care services and the person being screened. Such an assessment would be rigorous and consider the circumstances surrounding this history to determine its relevant to the overall risk assessment.

Limiting the right to work for a person seeking to work or already working as an aged care worker or responsible person by permitting prescribed persons or bodies to access detailed criminal history information is considered reasonable and proportionate to achieve the lawful objective of promoting the general welfare of individuals accessing funded aged care services. Persons employed in the delivery of funded aged care services are in a position of trust and in many cases will have access to the personal property, finances and medication of the individuals under their care. Criminal history is just one of a multitude of factors being taken into account for the purposes of screening workers, and the circumstances around pardoned, quashed and spent convictions may be relevant to the broader assessment of a person's suitability to work with an individual accessing funded aged care services.

The Transitional Bill also places reasonable limits on the right to work by transitioning banning orders and associated notices and applications that are active under the old law at the transition time. Part 5 of Schedule 2 to the Transitional Bill provides that banning orders in force at the transition time, active notices of intention to make banning orders and pending applications for variations or revocations of banning orders will be taken to have the same effect under equivalent provisions in the Aged Care Bill. It also provides for expired banning orders to be included on the Provider Register and the register of banning orders under the Aged Care Bill, ensuring that information about historical banning orders will continue to be available. These powers are reasonable and proportionate to achieve the lawful objective of promoting the general welfare of individuals accessing funded aged care services and are therefore consistent with the right to work and rights at work.

Right to access information

The right to access information is contained in article 19(2) of the ICCPR, which provides that everyone has the right to freedom of expression and that right includes the freedom to seek and receive information of all kinds, either orally or in writing. Article 21 of the CRPD provides a similar right for persons with disabilities, in that appropriate measures should be taken to ensure people with disabilities can exercise their right to freedom of expression and opinion, including being provided with information in accessible formats, in a timely manner, without additional cost.

The Transitional Bill promotes the right to access information through the consequential amendments to the Freedom of Information Act 1982 which will remove the exemption to access information under the old Act and the Commission Act. This means that a person will have a legally enforceable right of access to a document of an agency or an official document of a Minister under the old Act and Commission Act. This is consistent with the right for everyone to receive information in relation to the aged care system.

Conclusion

The Transitional Bill is consistent with human rights as it provides transitional arrangements for current individuals accessing aged care services under the old Act and the CHSP and NATSIFAC programs to transition to the new aged care system under the Aged Care Bill and provides transitional arrangements for approved providers of aged care to be deemed registered providers under the Aged Care Bill.

The Transitional Bill promotes human rights, including the right to the highest attainable standard of health and the right to access information. While the Bill limits the right to privacy and the right to work, it does so in pursuit of the permissible legitimate objectives of the Transitional Bill, in a way that is reasonable, necessary and proportionate in the particular circumstances to achieving those objectives.