Wednesday, 13 September 2006
Aged Care Amendment (Residential Care) Bill 2006; Judiciary Legislation Amendment Bill 2006; Privacy Legislation Amendment (Emergencies and Disasters) Bill 2006
I table the explanatory memoranda relating to the bills and move:
That these bills be now read a second time.
I seek leave to have the second reading speeches incorporated in Hansard.
The speeches read as follows—
The Aged Care Amendment (Residential Care) Bill proposes a number of amendments to the Aged Care Act 1997 (the Act). The bill gives effect to changes to the treatment of income streams and assets that have been disposed of under the assets test for entry into permanent residential aged care.
The bill also clarifies current delegation practices in relation to Aged Care Assessment Teams.
Since coming to office in 1996, the Howard government has worked consistently to ensure that older Australians needing long-term care have access to a high-quality and affordable aged care system capable of meeting their needs and preferences.
This bill brings the treatment of gifting and income streams for aged care assets testing purposes into line with their treatment for pension assets testing purposes, as announced in the 2006-07 Budget. This builds on the Government’s changes to streamline administration in aged care that responded to the recommendations of the 2003-04 Review of Pricing Arrangements in Residential Aged Care.
The changes are designed to simplify the interaction of the aged care and pension arrangements for greater transparency and to facilitate wise financial planning for older Australians. They will also improve the sustainability of the aged care financing arrangements.
Currently, assets gifted by prospective residents are excluded from assessment for aged care assets testing purposes but are included in the pension assets test and such gifts can reduce the amount of age pension received. The current arrangements apply until 1 January 2007 and therefore people entering or moving between residential aged care homes up to and including 31 December 2006 will not be affected.
People who enter residential aged care or move to another aged care home from 1 January 2007 and who seek an assets assessment through Centrelink or the Department of Veterans’ Affairs will have any gifts they have made from 10 May 2006 that exceed the allowable amounts included in that assessment.
The allowable amounts are those that currently apply for the pension asset test as well as for pension and aged care income assessment purposes—$10,000 in any financial year or $30,000 over five years.
Changes to pension arrangements announced by the Government in February 2004 mean that market linked income streams purchased from 20 September 2004 that satisfy certain conditions are granted ‘complying income stream’ status, which means that they qualify for the pension assets test exemption. At the same time, the then 100% assets test exemption for purchased complying income streams was reduced to 50% for products purchased on or after 20 September 2004. Complying income streams purchased before that date continue to be fully exempt from the assets test.
With the proposed amendments, from 1 January 2007 the exemption that applies to complying income streams for the pension assets test will also apply to the aged care assets test.
As the aged care assets test only applies on entry to an aged care home or on moving to another home, existing residents will not be affected while they remain in the same aged care home.
These changes will also result in a more sustainable system in the long term, providing savings of approximately $71.7 million of administered costs over five years.
This bill also amends the Act to allow for the Secretary to the Department of Health and Ageing to delegate to members of the Aged Care Assessment Teams (ACATs) the Secretary’s power to extend the maximum number of days per year on which a person may be provided with residential respite care. This change will remove any uncertainty about the role of ACATs in this process.
The role of ACATs is to assess frail older Australians with complex care needs and assist them to access the most appropriate care services available. The Secretary currently delegates to designated ACAT members the power to approve a person to receive aged care services. ACAT members also currently assess the merits of applications for respite care extensions, but they do not have the delegated power to formally approve an extension. Currently, residential respite care is limited to 63 days per financial year for a care recipient. However the Secretary may increase the maximum number of days allowed by periods of 21 days where there is a need to do so, such as carer stress or absence, or because of the severity of the care recipient’s condition. This proposed amendment to the Act will give ACAT delegates the power to formally approve respite care extensions in addition to assessing applications for extension.
This bill has two main purposes. Firstly, it gives effect to purported orders made contrary to paragraph 39(2)(d) of the Judiciary Act 1903 by non-judicial officers of State courts of summary jurisdiction, by providing that the rights and liabilities of all persons are the same as if each such order had been an order made by the court in the exercise of its federal jurisdiction. Secondly, it repeals paragraph 39(2)(d) and subsection 68(3) of the Judiciary Act.
The effect of paragraph 39(2)(d) is that registrars and other non-judicial officers of State courts of summary jurisdiction do not have jurisdiction to make certain orders in federal matters, such as default orders. A corresponding provision, subsection 68(3) of the Judiciary Act, provides for similar restrictions in relation to the exercise of federal jurisdiction in criminal cases.
In December 2005, the Government was informed that registrars in the Victorian Magistrates Court had been purporting to exercise federal family law jurisdiction, contrary to the restrictions in paragraph 39(2)(d), by making consent orders in relation to family law matters. Consequently, all State and Territory Attorneys-General were contacted to remind them of the restrictions in the Judiciary Act. The Government also asked all State Attorneys-General to advise how widespread the practice was of non-judicial officers in State summary courts exercising federal jurisdiction in contravention of paragraph 39(2)(d).
While waiting for a response from State and Territory Attorneys-General, amendments were introduced in the Family Law Amendment (Shared Parental Responsibility) Act 2006 to effectively validate the ineffective family law orders as a matter of urgency. This provided certainty for parties involved in proceedings in which ineffective family law orders had been made.
It subsequently became apparent that in some States orders have been made contrary to paragraph 39(2)(d) in relation to taxation and other federal law matters. Parties to proceedings involving ineffective orders have acted on the assumption that the orders were valid and could be relied upon. Consequently, this bill creates new statutory rights and liabilities for parties that may be exercised and enforced in the same manner as valid orders of the relevant court. These provisions will provide certainty for these parties and avoid unnecessary legal challenges.
In order to prevent the situation arising again, the bill repeals paragraph 39(2)(d) and subsection 68(3) of the Judiciary Act. This will allow, subject to the Constitution, State summary courts to be constituted in the same way for the purpose of exercising federal jurisdiction as they are able to be constituted for the purpose of exercising State jurisdiction. State summary courts will be able to determine which officers, including non-judicial officers, can exercise federal jurisdiction. This will place State summary courts in the same position as State district, county and supreme courts.
Traditionally, stipendiary magistrates and lay magistrates both exercised summary jurisdiction in States courts. Stipendiary magistrates were legally qualified full-time adjudicators, while lay magistrates were not. There was concern then, as there still is of course, that persons exercising the judicial power of the Commonwealth should be suitably qualified. Paragraph 39(2)(d) and subsection 68(3) were intended to address this concern. However, today State statutes generally require magistrates to be legally qualified and State courts of summary jurisdiction have evolved considerably in the past 100 years. I am confident the States will ensure that both federal and State jurisdiction are exercised only by suitably qualified people.
Subject to the requirements of the Constitution, it is generally not desirable for the States to have to put in place different arrangements for the handling by State courts of matters in federal jurisdiction. This obviously reduces their flexibility to deal with what are no doubt busy workloads.
State registrars already make the same kinds of orders in State jurisdiction which the Judiciary Act currently prevents them from making in federal jurisdiction. These amendments will allow the States to determine which officers, including non-judicial officers such as registrars, can exercise federal jurisdiction. By doing so this bill contributes to achieving a more accessible, efficient and flexible civil justice system.
I commend this bill.
The tragic Boxing Day Tsunami in 2004 provided many lessons in how to provide effective and timely assistance to Australians caught up in an emergency. To provide effective assistance, we have to identify those who need help and what help is appropriate. The tsunami, along with other subsequent emergencies and disasters, revealed practical problems for Commonwealth agencies, State and Territory governments, private sector organisations and non-government organisations regarding the extent to which personal information can be shared.
The Privacy Act 1988 contains provisions which allow disclosure of personal information in times of emergency and disaster. However, the Act contemplates that these provisions will be applied on a case-by-case basis after careful analysis of the circumstances. Clearly, in an emergency or disaster, where there may be many thousands of victims requiring urgent assistance, agencies and organisations do not have the luxury of time, or the resources, to consider each case individually.
These existing provisions have proven difficult to apply with confidence in situations involving mass casualties and missing persons. This has resulted in some agencies and organisations taking an overly-cautious interpretation, and has contributed to unnecessary delays in delivering services and added to the trauma experienced by victims and their families.
Two recent reports, the Privacy Commissioner’s Getting in on the Act: the review of the private sector provisions of the Privacy Act 1988 and the Senate Legal and Constitutional Committee Report The real Big Brother: Inquiry into the Privacy Act 1988 have noted the need for clarification of the provisions of the Act in times of an emergency. I acknowledge the work of the Privacy Commissioner and the Committee in preparing those reports.
New Part VIA
There needs to be a seamless whole-of-government approach to the exchange of personal information in a disaster. The Privacy Legislation Amendment (Emergencies and Disasters) Bill 2006 inserts a new Part into the Privacy Act to establish a clear and certain legal basis for the collection, use and disclosure of personal information about deceased, injured and missing individuals caught up in an emergency or disaster occurring in Australia or overseas.
The effect of these amendments is to permit the Australian Government, private sector organisations and non-government organisations to collect, use and disclose personal information in the event of an emergency or disaster, despite the possible application of the Privacy Act or of specific secrecy provisions in other Commonwealth legislation. The bill will not apply to State and Territory governments and their agencies other than the ACT, but it will allow Australian Government agencies and private sector organisations and non-government organisations to disclose personal information to State and Territory Governments and their agencies.
We are hopeful that where State or Territory legislation prevents their agencies from sharing personal information with the Australian Government or with private sector or non-government organisations, States and Territories might consider corresponding amendments to their legislation.
These new provisions will be triggered when the Prime Minister or the Attorney-General makes a declaration for the purposes of the Privacy Act that an emergency or disaster has occurred in Australia or overseas. An emergency or disaster may only be declared where:
- at least one Australian citizen has been affected; and
- the emergency or disaster is such that it is appropriate that certain agencies, organisations and individuals be permitted to exchange personal information more freely than might otherwise be permitted by the Privacy Act.
Where the emergency or disaster has occurred outside Australia, the Attorney-General must consult the Minister for Foreign Affairs before making a declaration. The declaration will have effect for a limited time.
The bill does not attempt to define ‘emergency’ or ‘disaster’. The range of emergencies or disasters requiring urgent Government response is too vast and too varied to be susceptible to any sensible and comprehensive definition. However, it is envisaged that the Prime Minister or the Attorney-General will make the declaration as a part of a co-ordinated, whole-of-government response to an emergency or disaster.
Exchange of personal information
The bill will not allow unfettered dealing with personal information outside the existing regulation of the Privacy Act. On the contrary, the bill serves to clarify and enhance what is largely already permissible under the Privacy Act. The bill will allow collection, use or disclosure of personal information only where it will:
- provide people closely connected to an individual caught up in an emergency or disaster with information about their welfare;
- help to identify individuals;
- otherwise contribute to the response to the emergency or disaster; or
- assist individuals and law enforcement.
Given the objects of the bill, these amendments, of necessity, modify the operation of the Information Privacy Principles and the National Privacy Principles and relevant secrecy provisions in other Commonwealth legislation. However, recognising the special status of the intelligence agencies and the Inspector-General of Intelligence and Security, secrecy provisions applying to those agencies are excluded from modification under the amendments and will continue to apply unchanged.
In addition, there is a regulation-making power to exclude other nominated secrecy provisions from modification under the amendments where a sound policy case is made out to preserve those provisions even in an emergency situation. The bill also modifies the operation of common law duties of confidence, such as that which applies to the banker and client relationship.
No disclosure of personal information to the media
The amendments will not permit the disclosure of personal information to the media. If there is a need to involve the media to ensure a speedy and effective response to the emergency, then agencies and organisations must do so in accordance with the normal operation of the Privacy Act.
To ensure that personal information is not disclosed for unrelated purposes, the bill includes an offence prohibiting the further disclosure of any information received as a result of a declaration of emergency or disaster. This prohibition does not apply to persons closely related to an individual affected by an emergency or disaster, nor does it prohibit disclosure to the individual concerned or where that individual has consented to the disclosure. Naturally, the offence does not apply where the Privacy Act otherwise permits the disclosure.
Disclosure of information is optional
I want to stress that this bill merely enables the collection, use and disclosure of personal information in an emergency or disaster situation. It does not require any agency or organisation to disclose personal information. Agencies and organisations will retain their existing discretion under the Privacy Act not to disclose personal information. The amendments do not displace agencies’ internal management processes regulating the collection, use and disclosure of information.
These amendments follow from extensive consultation with stakeholders, both within government and in the private and charitable sectors. All have agreed that the amendments are necessary to enable an effective response to emergencies or disasters.
This bill will place beyond doubt the capacity of the Australian government and others to lawfully exchange personal information in an emergency or disaster situation. It reflects an expectation of the community that the Government will respond to emergencies and disasters quickly and effectively. The bill complements the existing core policy of the Privacy Act. The Privacy Act continues to apply in the absence of an emergency declaration; even in its normal operation, the Privacy Act usually allows the disclosure of personal information for legitimate government purposes.
I am confident that the amendments in this bill will assist search, rescue and recovery efforts and the distribution of services to victims and their families without derogating from the proper protection of personal information.
I commend the bill to the Chamber.
Ordered that further consideration of these bills be adjourned to the first day of the next period of sittings, in accordance with standing order 111.
Ordered that the bills be listed on the Notice Paper as separate orders of the day.