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senate vote 2024-11-21#8
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mackay staff
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2024-11-24 12:58:48
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Title
Bills — Aged Care Bill 2024; in Committee- Aged Care Bill 2024 - in Committee - Chapter 4
Description
<p class="speaker">Andrew McLachlan</p><p>The committee is considering the Aged Care Bill 2024. The question before the committee is that the bill, as amended, be agreed to.</p> <p class="speaker">Larissa Waters</p><p>by leave—On behalf of Senator Allman-Payne, I move amendments (1) to (10) on sheet 3110 together:</p><p class="italic">(1) Heading to subclause 179(3), page 186 (line 23), omit "<i>Serious</i>", substitute "<i>Civil penalty provision</i><i></i><i>serious</i>".</p><p class="italic">(2) Clause 179, page 187 (after line 4), after subclause 179(3), insert:</p><p class="italic"> <i>Strict liability offence</i> <i></i> <i>serious failures</i></p><p class="italic">(3A) A registered provider commits an offence of strict liability if:</p><p class="italic">(a) the provider has a duty under subsection (1); and</p><p class="italic">(b) the provider engages in conduct that does not comply with the duty; and</p><p class="italic">(c) the conduct amounts to a serious failure by the provider to comply with the duty.</p><p class="italic">Penalty:</p><p class="italic">(a) in the case of an offence committed by a registered provider that is an individual—150 penalty units; or</p><p class="italic">(b) in the case of an offence committed by a registered provider other than an individual—1,000 penalty units.</p><p class="italic">(3) Heading to subclause 179(5), page 187 (line 12), omit "<i>Death</i>", substitute "<i>Civil penalty provision</i><i></i><i>death</i>".</p><p class="italic">(4) Clause 179, page 187 (after line 25), at the end of clause 179, add:</p><p class="italic"> <i>Strict liability </i> <i>offence</i> <i></i> <i>death or serious injury or illness</i></p><p class="italic">(6) A registered provider commits an offence of strict liability if:</p><p class="italic">(a) the provider has a duty under subsection (1); and</p><p class="italic">(b) the provider engages in conduct; and</p><p class="italic">(c) the conduct amounts to a serious failure by the provider to comply with the duty; and</p><p class="italic">(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.</p><p class="italic">Penalty:</p><p class="italic">(a) in the case of an offence committed by a registered provider that is an individual—500 penalty units; or</p><p class="italic">(b) in the case of an offence committed by a registered provider other than an individual—4,800 penalty units.</p><p class="italic"> <i>Fault-based offence</i> <i></i> <i>death or serious injury or illness</i></p><p class="italic">(7) A registered provider commits an offence if:</p><p class="italic">(a) the provider has a duty under subsection (1); and</p><p class="italic">(b) the provider engages in conduct; and</p><p class="italic">(c) the conduct amounts to a serious failure by the provider to comply with the duty; and</p><p class="italic">(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.</p><p class="italic">Penalty:</p><p class="italic">(a) in the case of an offence committed by a registered provider that is an individual—1,000 penalty units or 5 years imprisonment or both; or</p><p class="italic">(b) in the case of an offence committed by a registered provider other than an individual—9,500 penalty units.</p><p class="italic"> <i>General defence of reasonable excuse</i></p><p class="italic">(8) Subsection (3A), (6) or (7) does not apply if the registered provider has a reasonable excuse.</p><p class="italic">Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the <i>Criminal Code</i>).</p><p class="italic">(5) Clause 180, page 188 (lines 19 to 22), omit subclause 180(3), substitute:</p><p class="italic">(3) A person may be found liable to pay a civil penalty under this Act, or be convicted or found guilty of an offence against a provision of this Act, relating to a duty under this section whether or not the registered provider has been found liable to pay a civil penalty under section 179, or been convicted or found guilty of an offence against section 179.</p><p class="italic">(6) Heading to subclause 180(4), page 188 (line 23), omit "<i>Serious</i>", substitute "<i>Civil penalty provision</i><i></i><i>serious</i>".</p><p class="italic">(7) Clause 180, page 188 (after line 30), after subclause 180(4), insert:</p><p class="italic"> <i>Strict liability offence</i> <i></i> <i>serious failures</i></p><p class="italic">(4A) A person commits an offence of strict liability if:</p><p class="italic">(a) the person has a duty under subsection (1); and</p><p class="italic">(b) the person engages in conduct that does not comply with the duty; and</p><p class="italic">(c) the conduct amounts to a serious failure by the provider to comply with the duty.</p><p class="italic">Penalty: 150 penalty units.</p><p class="italic">(8) Heading to subclause 189(6), page 189 (line 4), omit "<i>Death</i>", substitute "<i>Civil penalty provision</i><i></i><i>death</i>".</p><p class="italic">(9) Clause 180, page 189 (after line 15), at the end of clause 180, add:</p><p class="italic"> <i>Strict liability offence</i> <i></i> <i>death or serious injury or illness</i></p><p class="italic">(7) A person commits an offence of strict liability if:</p><p class="italic">(a) the person has a duty under subsection (1); and</p><p class="italic">(b) the person engages in conduct; and</p><p class="italic">(c) the conduct amounts to a serious failure by the person to comply with the duty; and</p><p class="italic">(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.</p><p class="italic">Penalty: 500 penalty units.</p><p class="italic"> <i>Fault-based offence</i> <i></i> <i>death or serious injury or illness</i></p><p class="italic">(8) A person commits an offence if:</p><p class="italic">(a) the person has a duty under subsection (1); and</p><p class="italic">(b) the person engages in conduct; and</p><p class="italic">(c) the conduct amounts to a serious failure by the person to comply with the duty; and</p><p class="italic">(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.</p><p class="italic">Penalty: 1,000 penalty units or 5 years imprisonment or both.</p><p class="italic"> <i>General defence of reasonable excuse</i></p><p class="italic">(9) Subsection (4A), (7) or (8) does not apply if the person has a reasonable excuse.</p><p class="italic">Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the <i>Criminal Code</i>).</p><p class="italic">(10) Clause 186, page 191 (line 7), after "subsection 179(3) or (5)", insert "or is found guilty of an offence against subsection 179(3A), (6) or (7)".</p><p>The Greens have long called for and supported a shift to a rights based framework. Advocates and older people have made clear that older people must have rights that are not only unequivocally clear but also enforceable. It is a key concern for the Greens and many others that the rights within this bill remain aspirational for providers. The removal of the criminal penalties has been a significant problem for many participants and advocates. This has been bitterly disappointing for participants and their loved ones seeking justice, and we strongly urge the government to support the inclusion of criminal penalties in the bill to signal to participants that their rights are enforceable and that they can seek justice.</p><p>It is a wonderful move that we are moving to a rights based framework but it makes a mockery of that move if those rights are not enforceable. We understand that the reason that part was taken out was to please the Liberals, and what an appalling outcome.</p><p>Question negatived.</p> <p class="speaker">Linda Reynolds</p><p>Minister, I wanted to pick up with a line of questioning from Senator Ruston this morning. As I understand it, if I heard correctly, you talked about the enabling ICT changes that need to occur to implement this system to have it operational. Can you just confirm that you said that it would be delivered by 1 July next year and that the implementation is critical for this scheme to take effect?</p> <p class="speaker">Katy Gallagher</p><p>Sorry, Senator Reynolds. What was the second part of your question?</p> <p class="speaker">Linda Reynolds</p><p>REYNOLDS () (): The first one was about the criticality of the IT system to the effective implementation of these reforms, and the second one was about your having said that all the system changes will be implemented by 1 July next year.</p> <p class="speaker">Katy Gallagher</p><p>I don't have the budget papers in front of me, but I believe that it was phased over the forward estimates in terms of expenditure. But the ICT changes that will need to be in place for 1 July 2025 will be in place.</p> <p class="speaker">Linda Reynolds</p><p>Thank you, Minister. So they will be in place by 1 July. Is that the changes required by the My Aged Care system—that is, Health and Services Australia—or is that also all of the providers, because obviously the providers need to have their systems updated as well?</p> <p class="speaker">Katy Gallagher</p><p>We did cover this this morning at some length. That is just for the government's internal systems. In terms of the providers, there is a small grant round of $10 million, providing grants of $10,000 for those providers in the Support at Home program, who are going to face the majority of the most significant changes. For many of the other providers, including in residential care, we don't believe that there will be significant change, although I know that there are some providers who disagree with that. This is a matter that the transition taskforce no doubt will be considering. It has its first meeting next Thursday, so I imagine things like this will be on the agenda. But, for providers who aren't directly involved with the new Support at Home program, we expect the ICT needs to be minimal. In fact, it's more of a reporting into the system that the government has than requiring a new system for themselves.</p> <p class="speaker">Linda Reynolds</p><p>Thank you, Minister. Would it be safe to say that these reforms that are in the current legislation can't be implemented until the IT system is in place?</p> <p class="speaker">Katy Gallagher</p><p>Not all of it will be dependent on the IT system. Elements of it will, but not all of it, because there are a whole range of other changes in the legislation that wouldn't be dependent on the IT program being in place. But we are conscious that, for some elements of it, we do need that in place, including for the Support at Home program, and that needs to be in place by 1 July 2025.</p> <p class="speaker">Linda Reynolds</p><p>Minister, can you describe, then, what elements will be impacted and won't be able to be delivered if the IT system reforms are not in place?</p> <p class="speaker">Katy Gallagher</p><p>The government's program will be to enable registered provider operation under the new act through reforms, including Support at Home, places to people, worker screening and registration, and some of the regulatory framework subsidies and payments. It will also streamline interactions with government through the existing GPMS, service referrals, payments and reporting. So, if we're going to the hypothetical of what would be affected if the system were not in place, I would say that those would be the key areas.</p> <p class="speaker">Linda Reynolds</p><p>So, essentially, they're the key elements to be delivered under this policy change. Can I just clarify something that I may have misheard. I have the budget papers here and had a look. In the budget papers for 2024-25 it does say that it was $1.2 billion over five years from 2023-24—last financial year. Did I correctly hear you say that it was $1.5 billion now?</p> <p class="speaker">Katy Gallagher</p><p>No, it's $1.2 billion.</p> <p class="speaker">Linda Reynolds</p><p>It is $1.2 billion? Thank you. That's helpful. Also in the budget measures for improving aged-care ICT support, which are, as we know, going to be delivered by Services Australia, the actual delivery is over five years. Can the minister explain why it's over five years, what things are going to be delivered over the next seven months to get it operational by 1 July, and what is the remainder of funding for the forward estimates?</p> <p class="speaker">Katy Gallagher</p><p>I am again advised that all of the features needed to start on 1 July 2025 will be done. I think from memory—I just don't have the budget papers in front of me—that it is frontloaded across the forward estimates. So we expect that upfront build, but then there will be continuing costs—maintenance and otherwise—of the system that you would expect with any large IT program. I'll see if there's any further information. Of the $1.2 billion, $589 million was provided as sustainment funding critical to maintain core ICT systems which are central to the continued operation of the aged-care system. Core ICT includes Aged Care Gateway and the Government Provider Management System, as well as associated business to government, B2G, and the aged-care data warehouse systems. Costs include platform hosting, software licensing, cybersecurity, general operating costs and digital contractors once the current funding expires on 30 June 2024.</p> <p class="speaker">Linda Reynolds</p><p>So that is $589 million of the $1.2 billion. If I understand it correctly, that's to maintain and upgrade the core ICT systems. Is that correct? If that's correct, what's the rest of the $1.2 billion being spent on, and when?</p> <p class="speaker">Katy Gallagher</p><p>The rest has been allocated for new or enhanced funding for foundational reform, including the new Aged Care Act, GPMS, B2G and the integration of My Health Record and My Aged Care.</p> <p class="speaker">Linda Reynolds</p><p>Thank you very much, Minister. That's very interesting. So $600,000 is for systems integration and to provide some of those essential services. You mentioned the integration with My Health Record. Is that correct?</p> <p class="speaker">Katy Gallagher</p><p>Yes.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
- The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?gid=2024-11-21.366.4) "*that chapter 4 stand as amended.*" In other words, they voted to keep the [amended form of chapter 4](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fbills%2Fr7238_third-reps%2F0000%22;rec=0) as it is. Chapter 4 relates to the funding of aged care services.
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