Aged Care Bill 2023 (ACB) – Michael Perkins’ Review and Reflection

Introduction

    1. The Commonwealth Government released an exposure draft of this Bill on 14 December 2023. This draft was originally open for consultation until 16 February 2024. There has been such interest in the draft that the date for consultation has now been extended to 8 March 2024
    2. Feedback to this consultation can be provided by the methods set out at this web link: https://www.health.gov.au/our-work/aged-care-act/consultation.
    3. The purpose of this guide is to summarise the first outcomes of our review of the Bill and consideration of its supporting resources. Other commentary and reflections will be released as it is completed.
    4. Please contact Michael Perkins, Jeremy Duffy or Amber Geake if you want to discuss the points made below or if you have any other concerns about the changes to the Aged Care System whether as a client, representative, supporter or carer.

The First Reflection – Some Legal and Care System Basics

  1. Australia is a member of the United Nations Human Rights System.
  2. The Bill is grounded in the external affairs power of the Commonwealth Government by reference to these treaties[1]:
    • Convention on the Rights of Persons with Disabilities means the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.
      • Note: The Convention is in Australian Treaty Series 2008 No. 12 ([2008] 29 ATS 12) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
    • Covenant on Economic, Social and Cultural Rights means the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966.
      • Note: The Covenant is in Australian Treaty Series 1976 No. 5 ([1976] ATS 4 5) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au)
  1. Aged Care is defined as a legislated system for the delivery of Aged Care services within the authority of the Commonwealth Government authority. See for example the Definition of System Governor in ACB and the operation of s.31 and s.376 of ACB. The authority of supporters and representatives are not derived from any legal principle under State or Federal law but rather as a delegation of authority from the System Governor.
  2. Participation in the Aged Care System is voluntary. Compliance with the conditions of the Aged Care Act and its associated regulations and legislation will however be a condition of receiving Commonwealth funded support for the ageing person.
  3. All citizens as a result have the right not to participate in the Aged Care System.
  4. There is no substantive definition of supported decision making in the Bill and no attempt to take into the Commonwealth Legislation any rights based concepts from State legislation.
  5. Whilst appreciating the community’s concern with abuse, abusive and coercive conduct affecting the rights of citizens as they age, the criminalisation of conduct of aged care workers (including volunteers) supporters, representatives and carers poses a challenge for those taking systemic responsibility in being an aged care provider. Compliance with positive duties under the Aged Care Act will be needed, not just exception or incident reporting if the actions of workers are to be defended. We expect this will result in the workforce management in provider organisations including revision of systems for:
    • Quality systems deployment, management and review
    • Record keeping including data and privacy management
    • Conflict management
    • Workforce job definition, training, education and sustainment
    • Collaborative working principles following ISO 44001
    • Case/job management
    • Client interviewing
    • Client Service Objective Identification and management
    • Discernment of services supplied that are not Commonwealth funded. (There appears no restriction on this occurring).
    • Human Services Outcomes management, recording and reporting (for NSW residents see the framework at https://www.facs.nsw.gov.au/resources/human-services-outcomes-framework.

We will keep on working on our review of this Bill. All feedback is appreciated as we refine our understanding of how the new Aged Care System will affect us as lawyers of clients, carers, supporters and representatives in the Care and Support Economy.

[1] See s. 7 definition ACB last viewed 28 January 2024.