House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Kevin Andrews MP)

Schedule 4 - Aged care amendments

Summary

This Schedule will amend the aged care legislation and the Health and Other Services (Compensation) Act 1995 to reflect changed public service administrative arrangements, following the machinery of government changes that occurred on 18 September 2013. These amendments include clarifying and expanding the powers of the Secretary to delegate functions and powers under the Aged Care Act 1997 to specified officers, bodies and other persons.

Background

These changes principally arise from the creation of the new portfolio of Social Services. The matters dealt with by the Department of Social Services include income security and support policies and programmes for the aged, together with services for older people, including their carers. The legislation administered by the Minister includes the Aged Care Act as well as substantial portions of the Social Security Act and Social Security Administration Act. As these Acts have been historically administered by separate Ministers and departments, some amendments are required to ensure these Acts operate appropriately when administered by the same Minister and department.

Similarly, amendments are required to the Health and Other Services (Compensation) Act 1995 because of the separation of the former Health and Ageing portfolio.

This Schedule will implement various amendments to Acts relating to aged care, which contain references to a specific Minister, department or Secretary of a department that are no longer correct or create administrative difficulties as a result of the making of new Administrative Arrangements Order on 18 September 2013.

These amendments are made to the following Acts:

•

Aged Care Act 1997;

•

Aged Care (Transitional Provisions) Act 1997;

•

Health and Other Services (Compensation) Act 1995; and

•

Social Security Administration Act.

The amendments in this Schedule commence at various times largely related to the commencement of other amending legislation affecting the principal provisions being amended here.

Abbreviations used in the explanatory memorandum for this Schedule

•

Aged Care Act means the Aged Care Act 1997

•

Aged Care Secretary means the Secretary of the Department administered by the Minister who administers the Aged Care Act

•

Aged Care Transitional Provisions Act means the Aged Care (Transitional Provisions) Act 1997

•

Chief Executive Centrelink has the same meaning as in the Human Services (Centrelink) Act 1997

•

Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1993

•

Social Security Secretary means the Secretary of the Department administered by the Minister who administers the Data-matching Program (Assistance and Tax) Act 1990

Explanation of the changes

Amendments to the Aged Care Act

Item 1 repeals a note at subsection 44-24(12), which directs the reader to the power of the Secretary to delegate functions under section 96-2 to certain persons. As the power to delegate certain functions under section 44-24 has been amended, the note is no longer correct in referring to those persons and, as a consequence, is to be deleted.

Item 2 repeals subsection 85-4(2), which prevents the Secretary from reconsidering determinations of a care recipient's total assessable income made by the Social Security Secretary (or his/her delegate).

This addresses the difficulties which have arisen as a result of the Social Security Secretary being the same person as the Aged Care Secretary when reconsidering determinations of a care recipient's total assessable income. Currently, the reconsideration can be either under section 85-4 or 85-5 of the Aged Care Act, or under section 126 of the Social Security Administration Act. However, being the same person, it is not clear which reconsideration route is to be taken. This item addresses this anomaly by closing the parallel pathway, and only allowing reconsideration under the Aged Care Act.

Under subitem 8(1), this amendment will apply only to determinations made under section 44-24 on or after the date of commencement of this item.

Item 3 repeals subsection 85-5(2), which prevents the Secretary from reconsidering determinations of a care recipient's total assessable income made by the Social Security Secretary (or his/her delegate), following an application made by the care recipient.

As with item 2, this item addresses the difficulties which have arisen from the Social Security Secretary being the same person as the Aged Care Secretary when reconsidering determinations of a care recipient's total assessable income. Currently, the reconsideration can be under either section 85-4 or section 85-5 of the Aged Care Act, or under section 126 of the Social Security Administration Act. However, being the same person, it is not clear which reconsideration route is to be taken. This item addresses this anomaly by closing the parallel pathway.

Under subitem 8(1), this amendment will only apply to determinations made under section 44-24 on and after the date of commencement of this item.

Item 4 repeals sections 85-6 and 85-7 to reflect changes made in items 2 and 3. Currently, these sections allow for appeals of decisions under section 44-24 (working out a person's total assessable income) in the Aged Care Act to be reviewed under section 126 of the Social Security Administration Act. Given it is unclear which review path should be used with the Social Security Secretary being the same person as the Aged Care Secretary, this item removes the parallel path from the Social Security Administration Act, so that section 44-24 decisions are treated consistently with all other decisions under the Aged Care Act.

Item 5 is a consequential amendment to the changes made to subsection 96-2 in item 7.

Item 6 ensures that all officers who may acquire protected information under the Aged Care Act are subject to the offence provisions in section 86-7. This amendment adds the Chief Executive Medicare or departmental employees (within the meaning of the Human Services (Medicare) Act 1973). This section makes it an offence for an officer who receives information for the purposes of the Act to record, disclose or use the information for any purpose other than:

(a)

the purpose for which it was acquired; or

(b)

a purpose for which the person to whom the information relates has given written consent.

This offence carries a penalty of two years' imprisonment.

Under subitem 10(2), this amendment will apply in relation to protected information acquired on or after commencement of this item.

Item 7 repeals section 96-2 (Delegation of Secretary's powers and functions), and substitutes a new section. This section clearly sets out the position of the person to whom powers may be delegated, the powers that may be delegated, and whether the powers can be sub-delegated by the person, in order to facilitate the administration of the Act. At the same time, the new section seeks to simplify the powers being delegated, in line with the Government's deregulation agenda.

The Secretary may now delegate to the Aged Care Pricing Commissioner the functions which the Secretary considers necessary for the Aged Care Pricing Commissioner to perform his or her functions under the Aged Care Act. The office of the Aged Care Pricing Commissioner was created under the Aged Care (Living Longer Living Better) Act 2013, and this power to delegate means the Aged Care Pricing Commissioner can be treated similarly to the Chief Executive Officer of the Australian Aged Care Quality Agency.

Other than the addition of the Aged Care Pricing Commissioner, the range of persons to whom the Secretary may delegate powers remains the same. However, delegations to the Social Security Secretary will not currently operate, as the Social Security Secretary is the same person as the Aged Care Secretary, under the current Administrative Arrangements Order. Should future changes be made to the Administrative Arrangements Order to separate these functions, then the delegation power will become operative. If they become operative, then the Secretary will also have the power to delegate his/her powers to reconsider determinations of a care recipient's total assessable income.

Minor changes are made to the powers that may be delegated to these persons. Some of these changes are to make the route leading to the exercise of these powers more visible. In particular, the Secretary may now directly delegate his/her powers under section 44-24 to determine a care recipient's total assessable income to the Chief Executive Centrelink. Previously, these powers were delegated to the Social Security Secretary, who then sub-delegated to these officers. The Secretary may also delegate these powers to the Chief Executive Medicare, and both the Chief Executive Medicare and the Chief Executive Centrelink can be delegated the power to reconsider these decisions.

The new section makes it clear that, where the Secretary delegates his/her powers to the Social Security Secretary, the Chief Executive Medicare or the Chief Executive Centrelink, those powers can be sub-delegated to relevant Officers of the Department.

In line with the Government's deregulation agenda, the Secretary's power to delegate the assessment of a care recipient's assets under section 44-26C has also been simplified and clarified.

Item 8 ensures that amendments made by items 2, 3 and 4 will apply only to determinations made under section 44-24 on and after the date of commencement of these amendments. Further, the item ensures the amendment made by item 6, in respect of protected information acquired on or after the date of commencement, applies from the commencement of item 6.

Amendments to the Aged Care Transitional Provisions Act

Item 9 repeals a note at subsection 44-24(12), which directs the reader to the power of the Secretary to delegate functions under section 96-2 to certain persons. As the power to delegate certain functions under section 44-24 has been amended, the note is no longer correct in referring to those persons and, as a consequence, is to be deleted.

Item 10 repeals subsection 85-4(2), which prevents the Secretary from reconsidering determinations of a care recipient's total assessable income made by the Social Security Secretary (or his/her delegate).

This addresses the difficulties which have arisen from the Social Security Secretary being the same person as the Aged Care Secretary when reconsidering determinations of a care recipient's total assessable income. Currently, the reconsideration can be under either section 85-4 or section 85-5 of the Aged Care Act, or under section 126 of the Social Security Administration Act. However, being the same person, it is not clear which reconsideration route is to be taken. This item addresses this anomaly by closing the parallel pathway.

Under item 14, this amendment will apply only to determinations made under section 44-24 on or after the date of commencement of this item.

Item 11 repeals subsection 85-5(2), which prevents the Secretary from reconsidering determinations of a care recipient's total assessable income made by the Social Security Secretary (or his/her delegate), following an application made by the care recipient.

Similarly to item 10, this addresses the difficulties which have arisen from the Social Security Secretary being the same person as the Aged Care Secretary when reconsidering determinations of a care recipient's total assessable income. Currently, the reconsideration can be under either section 85-4 or section 85-5 of the Aged Care Act, or under section 126 of the Social Security Administration Act. However, being the same person, it is not clear which reconsideration route is to be taken. This item addresses this anomaly by closing the parallel pathway.

Under item 14, this amendment will apply only to determinations made under section 44-24 on and after the date of commencement of this item.

Item 12 repeals sections 85-6 and 85-7. Currently, these sections allow for appeals of decisions under section 44-24 (working out a person's total assessable income) in the Aged Care Act to be reviewed under section 126 of the Social Security Administration Act. Given it is unclear which review path should be used with the Social Security Secretary being the same person as the Aged Care Secretary, this item removes the parallel path from the Social Security Administration Act, so that section 44-24 decisions are treated consistently with all other decisions under the Aged Care Act.

Item 13 repeals section 96-2 (Delegation of Secretary's powers and functions), and substitutes a new section. This section clearly sets out the position of the person to whom powers may be delegated, the powers that may be delegated, and whether the powers can be sub-delegated by the person, to facilitate the administration of the Act. At the same time, the new section seeks to simplify the powers being delegated, in line with the Government's deregulation agenda.

The range of persons to whom the Secretary may delegate powers remains the same. However, delegations to the Social Security Secretary will not currently operate, as the Social Security Secretary is the same person as the Aged Care Secretary, under the current Administrative Arrangements Order. Should future changes be made to the Administrative Arrangements Order to separate these functions, then the delegation power will become operative. If they become operative, then the Secretary will also have the power to delegate his/her powers to reconsider determinations of a care recipient's total assessable income.

Minor changes are made to the powers that may be delegated to these persons. Some of these changes are made to make the route leading to the exercise of these powers more visible. In particular, the Secretary may now directly delegate his/her powers under section 44-24 to determine a care recipient's total assessable income to the Chief Executive Centrelink. Previously, these powers were delegated to the Social Security Secretary, who then sub-delegated to these officers. The Secretary may also delegate these powers to the Chief Executive Medicare, and both the Chief Executive Medicare and the Chief Executive Centrelink can be delegated the power to reconsider these decisions.

The new section makes it clear that, where the Secretary delegates his/her powers to the Social Security Secretary, the Chief Executive Medicare or the Chief Executive Centrelink, those powers can be sub-delegated to relevant officers of the Department.

In line with the Government's deregulation agenda, the Secretary's power to delegate the assessment of a care recipient's assets under section 44-8AA or 44-8AB have also been simplified and clarified.

Item 14 ensures that amendments made by items 10, 11 and 12 will apply only to determinations made under section 44-24 of the Aged Care Transitional Provisions Act on and after the date of commencement of this these amendments.

Amendment to the Health and Other Services (Compensation) Act 1995

Item 15 amends paragraph 42(1)(f) so the reference to the Secretary refers to the Aged Care Secretary.

Amendments to the Social Security Administration Act

Item 16 is a technical correction, to remove the word 'or', to reflect changes made to paragraph 126(1)(c) by item 17.

Item 17 amends subsection 126(1) of the Social Security Administration Act to repeal paragraphs 126(1)(e) and (f), which permit the review by the Secretary of decisions determining the total assessable income of care recipients under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act.

This addresses the difficulties which have arisen from the Social Security Secretary being the same person as the Aged Care Secretary when reconsidering determinations of a care recipient's total assessable income. Currently, the reconsideration can be under either section 85-4 or section 85-5 of the Aged Care Act, or under section 126 of the Social Security Administration Act. However, being the same person, it is not clear which reconsideration route is to be taken. This item addresses this anomaly by closing the parallel pathway, and only allowing reconsideration under the Aged Care Act.

These amendments are required to avoid parallel appeal paths under these Acts and the Social Security Administration Act.

Under item 28, these amendments will apply only to decisions under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act made on or after commencement of these amendments.

These amendments will not commence if item 106 of Schedule 2 to the Farm Household Support (Consequential and Transitional Provisions) Act 2014, which repeals paragraph 126(1)(c), commences before Part 1 of this Schedule commences.

Item 18 repeals subsection 126(1) of the Social Security Administration Act, and substitutes a new subsection 126(1). This removes the ability of the Secretary to review decisions determining the total assessable income of care recipients under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act.

Like item 17, this addresses the difficulties which have arisen from the Social Security Secretary being the same person as the Aged Care Secretary when reconsidering determinations of a care recipient's total assessable income. Currently, the reconsideration can be under either section 85-4 or section 85-5 of the Aged Care Act, or under section 126 of the Social Security Administration Act. However, being the same person, it is not clear which reconsideration route is to be taken. This item addresses this anomaly by closing the parallel pathway.

These amendments are required to avoid parallel appeal paths under these Acts and the Social Security Administration Act.

Under item 28, this amendment will apply only to decisions under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act made on or after commencement of these amendments.

The amendment will commence only if item 106 of Schedule 2 to the Farm Household Support (Consequential and Transitional Provisions) Act 2014, which repeals paragraph 126(1)(c), commences before Part 1 of this Schedule commences.

Item 19 is a technical correction, to remove the word 'or', to reflect changes made to paragraph 129(1) by item 20.

Item 20 repeals paragraphs 129(1)(e) and (f), which, following an application by a person affected, permit the review by the Secretary of decisions determining the total assessable income of care recipients under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act. These amendments are required to avoid parallel appeal paths under these Acts and the Social Security Administration Act.

Under item 28, these amendments will apply only to decisions under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act made on or after commencement of these amendments.

These amendments will not commence if item 109 of Schedule 2 to the Farm Household Support (Consequential and Transitional Provisions) Act 2014, which repeals paragraph 129(1)(c), commences before Part 1 of this Schedule commences.

Item 21 repeals subsection 129(1) of the Social Security Administration Act, and substitutes a new subsection 129(1). This removes the ability of the Secretary to review decisions determining the total assessable income of care recipients under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act, following an application by a person affected. These amendments are required to avoid parallel appeal paths under these Acts and the Social Security Administration Act.

Item 22 ensures the amendment made by item 21 applies only to decisions under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act made on or after commencement of the item.

Items 21 and 22 will commence only if item 109 of Schedule 2 to the Farm Household Support (Consequential and Transitional Provisions) Act 2014, which repeals paragraph 129(1)(c), commences before Part 1 of this Schedule commences.

Item 23 amends subsection 140(1) of the Social Security Administration Act. The effect of the amendment is as though the subsection finishes after paragraph 140(1)(b) and does not refer to decisions of an officer under the Farm Household Support Act 1992 (that is, that the former paragraph 140(1)(d) has been repealed).

This amendment commences only if item 112 of Schedule 2 to the Farm Household Support (Consequential and Transitional Provisions) Act 2014, which repeals paragraph 140(1)(d) of the Social Security Administration Act, commences before Part 1 of this Schedule commences.

Item 24 also amends subsection 140(1) of the Social Security Administration Act. The effect of the amendment is as though the subsection finishes after paragraph 140(1)(d).

This amendment will not commence if item 112 of Schedule 2 to the Farm Household Support (Consequential and Transitional Provisions) Act 2014, which repeals paragraph 140(1)(d) of the Social Security Administration Act, commences before Part 1 of this Schedule commences.

Item 25 amends subsection 140(1) of the Social Security Administration Act to repeal paragraphs 140(1)(f) and (g), which permit review by the Social Security Appeals Tribunal of decisions determining the total assessable income of care recipients under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act.

Under item 28, these amendments will apply only to decisions under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act made on or after commencement of these amendments.

These amendments will commence at the same time as table item 1 (that is, if the Act receives the Royal Assent before 1 July 2014, on 1 July 2014 - or, if the Act receives the Royal Assent after 1 July 2014, then 28 days after the Royal Assent).

Item 26 amends subsection 178(1) of the Social Security Administration Act by repealing paragraphs 178(1)(b) and (c). This removes the ability of the Administrative Appeals Tribunal to consider a decision by the Secretary under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act under the social security law. These amendments are required to avoid parallel appeal paths under these Acts and the Social Security Administration Act.

Under item 28, these amendments will apply only to decisions under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act made on or after commencement of these amendments.

These amendments will not commence if item 117 of Schedule 2 to the Farm Household Support (Consequential and Transitional Provisions) Act 2014, which repeals paragraph 178(1)(a), commences before Part 1 of this Schedule commences.

Item 27 repeals subsection 178(1) of the Social Security Administration Act, and substitutes a new subsection 178(1). This removes the ability of the Administrative Appeals Tribunal to consider a decision by the Secretary under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act under the social security law. These amendments are required to avoid parallel appeal paths under these Acts and the Social Security Administration Act.

Under item 28, these amendments will only apply to decisions under section 44-24 of the Aged Care Act and section 44-24 of the Aged Care Transitional Provisions Act made on or after commencement of these amendments.

This amendment commences only if item 117 of Schedule 2 to the Farm Household Support (Consequential and Transitional Provisions) Act 2014, which repeals paragraph 178(1)(a), commences before Part 1 of this Schedule commences.

Item 28 is a saving provision, which ensures any amendments made to paragraphs 126(1)(e) and (f), 129(1)(e) and (f), 140 (1)(f) and (g) and 178(1)(b) and (c) will apply only to determinations made under section 44-24 of the Aged Care Act and the Aged Care Transitional Provisions Act on and after the date of commencement of this these amendments.