Penny Allman-Payne (Queensland, Australian Greens) Share this | Hansard source

by leave—I move amendments (1) to (4) on sheet 3394 together:

(1) Schedule 1, item 23, page 8 (line 13), omit "rules; or", substitute "rules; and'.

(2) Schedule 1, item 23, page 8 (after line 13) at the end of paragraph 11A(3)(a), add:

(iii) if staff of the registered provider were scheduled to be involved in the delivery of the service—the staff were unable to be redirected, before the agreed time, to the delivery of another service despite the registered provider's best efforts; or

(3) Schedule 1, item 23, page 8 (after line 14), after subsection 11A(3), insert:

(3A) However, subsection (3) does not apply to the service if:

(a) the service was scheduled to be delivered by the registered provider to the individual on the day at an agreed time and place; and

(b) the reason that the service was not delivered was because the individual was admitted to hospital or was involved in an emergency.

(4) Schedule 1, item 23, page 8 (after line 27), after subsection 11A(5), insert:

(5A) If:

(a) a service is taken to have been delivered by a registered provider to an individual on a day (the deemed delivery day) because of the operation of subsection (2); and

(b) a service (whether or not the same service mentioned in paragraph (a)) is scheduled to be delivered by the registered provider to the individual on a later day;

the registered provider must before the end of 7 days after the deemed delivery day contact the individual to ask whether the delivery of the later service on the later day, including at any agreed time and place, is suitable.

(5B) If the registered provider fails to comply with subsection (5A), then subsection (2) does not apply in relation to the delivery of any service by the registered provider to the individual scheduled after the end of that 7-day period.

(5C) An individual may, within 7 days of the day a service is taken to have been delivered by a registered provider to the individual because of the operation of subsection (2), request the System Governor make an order that the subsection be taken to not apply, and to have never applied, in relation to the delivery of the service to the individual.

(5D) The request must be in an approved form.

(5E) The System Governor must, within 30 days of receiving the request, either:

(a) if the System Governor is satisfied there are extenuating circumstances justifying the making of the order—make the order; or

(b) otherwise—refuse to make the order.

(5F) Subsection (2) does not apply, and is taken to have never applied, in relation to the delivery of a service to an individual if the System Governor has made an order under subsection (5E) to that effect.

The purpose of these amendments is to make sure the cancellation policy is fairer for older people and, in particular, to ensure that an older person is not charged a cancellation fee for an aged-care service if the reason that it's not delivered is that they are admitted to hospital or are involved in a medical emergency.

Question negatived.

by leave—I move amendments (1) and (2) on sheet 3397 together:

(1) Schedule 1, page 23 (after line 29), after item 69, insert:

69A Subsection 179(3) (heading)

Omit "Serious", substitute "Civil penalty provisionserious".

69B After subsection 179(3)

Insert:

Strict liability offence serious failures

(3A) A registered provider commits an offence of strict liability if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct that does not comply with the duty; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—150 penalty units; or

(b) in the case of an offence committed by a registered provider other than an individual—1,000 penalty units.

69C Subsection 179(5) (heading)

Omit "Death", substitute "Civil penalty provisiondeath".

69D At the end of section 179

Add:

Strict liability offence death or serious injury or illness

(6) A registered provider commits an offence of strict liability if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—500 penalty units; or

(b) in the case of an offence committed by a registered provider other than an individual—4,800 penalty units.

Fault-based offence death or serious injury or illness

(7) A registered provider commits an offence if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.

Penalty:

(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

(b) in the case of an offence committed by a registered provider other than an individual—9,500 penalty units.

General defence of reasonable excuse

(8) Subsection (3A), (6) or (7) does not apply if the registered provider has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

69E Subsection 180(3)

Repeal the subsection, substitute:

(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.

69F Subsection 180(4) (heading)

Omit "Serious", substitute "Civil penalty provisionserious".

69G After subsection 180(4)

Insert:

Strict liability offence serious failures

(4A) A person commits an offence of strict liability if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct that does not comply with the duty; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty.

Penalty: 150 penalty units.

69H Subsection 189(6) (heading)

Omit "Death", substitute "Civil penalty provisiondeath".

69J At the end of section 180

Add:

Strict liability offence death or serious injury or illness

(7) A person commits an offence of strict liability if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct amounts to a serious failure by the person to comply with the duty; and

(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.

Penalty: 500 penalty units.

Fault-based offence death or serious injury or illness

(8) A person commits an offence if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct amounts to a serious failure by the person to comply with the duty; and

(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.

Penalty: 1,000 penalty units or 5 years imprisonment or both.

General defence of reasonable excuse

(9) Subsection (4A), (7) or (8) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

69K Paragraph 186(1)(a)

After "subsection 179(3) or (5)", insert "or is found guilty of an offence against subsection 179(3A), (6) or (7)".

(2) Schedule 1, page 75 (before line 1), before item 264, insert:

264A After subsection 551(2)

Insert:

(2A) In proceedings for a civil penalty order against an entity for a contravention of subsection (1):

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in paragraphs (1)(a) and (b); and

(b) if that onus is discharged—the entity bears the onus of proving that the claim is not made out.

264B After subsection 551(5)

Insert:

(5A) In proceedings for a civil penalty order against an entity for a contravention of subsection (3):

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in paragraphs (3)(a) and (b); and

(b) if that onus is discharged—the entity bears the onus of proving that the claim is not made out.

These amendments are to reinstate offences for breach of registered provider duties and the responsible person duties to make sure that older people actually have enforceable rights.

Question negatived.

I move amendment (1) on sheet 3396:

(1) Schedule 1, item 180, page 56 (lines 11 and 12), to be opposed.

The purpose of this amendment is to retain the requirement for higher everyday living agreements to be in writing.