Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

I thought it might be appropriate to try and cover off some of the issues that I raised in my speech on the second reading that the minister has partly addressed in his summing up. There are two issues in particular. Minister, the question that you did not have an opportunity to address is the question of reasonable grounds. The legislation provides that, when a suspicion is held on reasonable grounds by a person of there being a sexual offence or abuse of the kind that is covered in the legislation, that should be reported. But, if there is an allegation, that allegation does not have to be on reasonable grounds. This was canvassed during the inquiry. It was put to us that allegations are made on many occasions by people who are suffering from dementia. If an allegation of sexual abuse is made by a person with dementia, that allegation—the way I and many others read the legislation—must be reported. The question that was not clarified during the inquiry and that I am asking to be clarified here is why a suspicion must only be reported if it is on reasonable grounds but an allegation must be reported even if it is not on reasonable grounds. In residential aged care we are dealing with many people who suffer from dementia, and I think this is a point that the sector in particular would like some clarification of. That is the first issue.

You addressed the second issue, Minister, in your summing up, and that goes to when a diagnosis of mental impairment is made and how that is recorded. You indicated that that will appear in the principles and that there needs to be some flexibility. The diagnosis of mental impairment is absolutely essential for an approved provider to operate in certain ways. I am keen to know how that diagnosis will be recorded. If it can be made, as you said, by an appropriately qualified registered nurse, I would like to know what the appropriate qualification of that registered nurse is. And is it not possible for an approved provider who is not playing the game properly to simply tick the box for every single person in their facility and deem that they have a mental impairment? That is not what is intended in this legislation, but I am concerned that that is what may in fact occur. Finally, the question that I and certainly the aged-care sector need to know is: when will these investigation principles be available? They are fundamental to the operations of this proposed act and without them we can honestly hardly make decisions about how it will occur.

They are the three questions that I am looking for a response to: why do there have to be reasonable grounds on a suspicion but not an allegation, when will the principles be available, and what is ‘appropriately qualified’ when it comes to a registered nurse who can make a diagnosis of mental impairment?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I understand that the principles I mentioned will be available within the next fortnight or so. That is the time line. In relation to the question of a suspicion based on reasonable grounds versus an allegation, the government believes that it is imperative that allegations of reportable assaults be reported whether or not the approved provider believes there are reasonable grounds. I am advised that there have been circumstances in the past where allegations made by residents had not been initially believed by the approved provider but an abuse may have actually occurred.

If I can apply that more generally, an allegation is perhaps much stronger than a suspicion. You can suspect something happened, but an allegation is someone stating that in fact it did happen. A suspicion is accordingly on a weaker basis, and I would suggest that is why the reasonable ground is attached to that. In fact, in the criminal law we quite often talk about a suspicion based on reasonable grounds. You can have suspicions which are quite unreasonable. They can be quite fanciful; they can be quite paranoiac. I think to couple that with ‘reasonable grounds’ is appropriate. But where there is actually an allegation—somebody is saying something has happened and there is a bald assertion of abuse—then the government believes an allegation of a reportable assault must be reported. I do not know if that goes the whole way to answering Senator McLucas’s question.

In response to the concerns raised by the aged-care industry in this matter, the government intends to include a provision in the principles that, where a subsequent allegation is substantially the same as an earlier allegation, the approved provider will not be required to report the subsequent allegations. It is important to note that the provider must report an allegation when it is made for the first time whether or not the provider believes there is a basis to the allegation. The government believes that this is an appropriately cautious approach to this issue which balances the concerns of the industry about reporting repeated unfounded allegations with the need to believe and action allegations made by residents even where there may be a cognitive or mental impairment.

The details of the principles—which, as I mentioned, will be available in the next fortnight—will be finalised in consultation with the aged-care sector through the Aged Care Advisory Committee. The inclusion of this matter in the principles will allow adjustment over time should this be required after arrangements are in place. That is the flexibility of the principles that I mentioned. They will not need to come back to the parliament; they can be adapted to suit the circumstances which have been learnt from experience. On the question of appropriate qualification on the part of the registered nurse, this is again something that will be dealt with in the principles which I have mentioned. I am not sure if that covers all of the questions put by Senator McLucas. If I have missed one, perhaps I could be reminded of it.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Minister, I am seeking clarification of one of the comments that you have just made. I note that the principles will be released shortly. In terms of the clarification that you gave Senator McLucas about repeated allegations, does the information you gave us apply to all repeated allegations or only those made by someone who has been declared to have a mental impairment? Senator McLucas’s original question related to allegations and statements made by someone with that diagnosis. When you responded to her question, you talked about repeated allegations. I just want to clarify to whom that refers.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

The issue of repeated allegations which I mentioned will apply to all repeated allegations and not just to those made by a person with a mental impairment or a cognitive impairment. Before I move government amendment (1), I table a supplementary explanatory memorandum relating to the government amendment to be moved to the Aged Care Amendment (Security and Protection) Bill 2007. The memorandum was circulated in the chamber on 20 March 2007. I move government amendment (1) on sheet RG222:

(1)    Clause 2, page 1 (lines 7 and 8), omit the clause, substitute:

2  Commencement

        (1)    Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:   This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

        (2)    Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

As I mentioned earlier, there is only one government amendment. The amendment was foreshadowed by the former Minister for Ageing, Senator Santoro. The government has moved an amendment to the bill before us to extend the time period for implementation. While it was originally proposed that the legislation take effect as soon as possible—by 1 April 2007—the aged-care sector raised concerns during the recent Senate inquiry about the limited time they would have to put systems and processes in place to meet the new requirements. The Senate committee also recommended:

That in recognition of the additional responsibilities the Bill places on approved providers especially in relation to training staff members and instituting new systems, the commencement date … be deferred for a period of at least one month.

The government has listened closely to the concerns raised by the sector and, as a result, I have moved an amendment to the bill to extend the implementation time frames. The amendment provides that the new complaints investigation arrangements, including the establishment of the new Aged Care Commissioner, will take effect from 1 May 2007. The compulsory reporting requirements and whistleblower protections will take effect from 1 July 2007. This will provide extra time for any staff communication and for necessary changes to internal systems and procedures. Compulsory reporting raises complex and sensitive issues and it will be beneficial for providers to have more time to understand and implement the required changes in this important area. I should, however, make it very clear that, while the requirement for compulsory reporting will not be mandated until 1 July 2007, approved providers will continue to be encouraged to report any assaults to the police and the Secretary of the Department of Health and Ageing.

In relation to the time frames for the implementation of the arrangements for investigation of complaints, the government is proposing an extension of only one month rather than an extension of three months as is proposed for compulsory reporting. This is because the investigation processes, which will be included in the principles made under the act, will relate primarily to the roles and responsibilities of the Department of Health and Ageing and the Aged Care Commissioner. By contrast to the compulsory reporting requirements, very limited changes will be required to be put in place by approved providers in relation to the new investigation processes.

It is, however, proposed that the time frames for implementation be extended by one month to enable further consultation with stakeholders on the proposed content of the investigation principles. I think that this amendment once again demonstrates that the government is listening closely to the concern of stakeholders and is doing everything possible to assist them to meet the new requirements and to ensure a world-class aged-care system. I commend the amendment to the committee.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

The Labor Party will, of course, support this amendment. The amendment reflects in some respects the recommendation of the Senate inquiry. But for the minister to say that this is the government responding to the sector is a bit rich. It has only been after very strong representations during the inquiry, and then some quite strong correspondence—particularly between Aged Care Queensland and the Aged and Community Services Association, and various senators—that the government has acted. The reality is that if the government had stuck by its 1 April implementation date the investigation principles—the law on which the responsibilities of approved providers would have been based—would not have been in place. We would have been asking people to abide by legislation that they had not seen.

So of course the Labor Party will support the delay of the compulsory reporting requirements until 1 July. We also support the extension of time for the establishment of the commissioner of complaints, although I think we could have actually done that within the appropriate time. But for the government to say that it is being responsive and accepting of commentary from the sector, I think, to be frank, is a bit rich.

I hope that the department uses this opportunity to have conversations with the various police forces that will be involved in the delivery of this legislation. As I said in my speech during the second reading debate, indications at the time of the inquiry were that they had only had time to have conversations with a couple of states and, I think, the ACT. There were questions about the extent and the quality of the conversation that had been had. There is a lot of work to do before this legislation can be enacted properly. We are requiring legal obligations of approved providers of residential aged care and the least we can do is tell them what the rules are before they have to comply.

Question agreed to.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move Democrats amendment (1) on sheet 5214:

(1)    Page 2 (after line 2), after clause 3, insert:

4  Independent review

        (1)    The Minister must cause an independent review of the operation of this Act to be undertaken two years after its commencement.

        (2)    The person undertaking the review must consider:

             (a)    the extent to which the purposes of this Act have been attained; and

             (b)    the administration of the amendments made by this Act; and

             (c)    such other matters as the person considers to be relevant.

        (3)    The person undertaking the review must:

             (a)    have appropriate qualifications and experience to conduct the review; and

             (b)    not within five years prior to the date of their appointment have been employed by an aged care provider or by a Department of the Commonwealth with responsibility for aged care.

        (4)    The person undertaking the review must give the Minister a written report of the review.

        (5)    The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of receiving it.

Amendment (1) simply puts in place an independent review of the operation of the act after two years.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

This is the amendment that puts in place the review after two years. As I said in my speech during the second reading debate, I do not think we can wait for two years to have a review of the operations of this legislation. I think the review has to start on day one. We are very unsure of how this legislation will play out in the aged-care sector. There are serious concerns about whether or not there will be over reporting or reporting of events that will mean that police get tired of coming to aged-care facilities—not dissimilar to what happens in child protection. There are concerns about the whole operation of the act if it were to be passed—and I think it probably will be.

I do not think we can wait for two years for that review to occur. The review has to start immediately. We have to be watching extremely closely what is occurring in aged-care services right across Australia. But, as I said in my speech in the second reading debate, the two are not mutually exclusive. We will support the Democrats amendment in the knowledge that the Labor Party will be watching very closely the implementation of this legislation. I hope that the government will as well.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I would just like to place on record that the government agrees that there should be continual monitoring of the implementation of this legislation. For a number of reasons it does not agree with the Democrats amendment, although I understand the reasons for it. I said earlier that the department intends to closely monitor the compulsory reporting arrangements and the new complaints investigation processes and is the first to agree that there will be much to learn from that process. The data collected by the department during that time will also be significant for informing future policy.

The government has also established the Aged Care Advisory Committee, which comprises a broad range of stakeholders, such as peak industry bodies, approved providers, professional health bodies and consumer groups. The government expects the Aged Care Advisory Committee to continually monitor the implementation of this legislation and to consult the government as it always has done. The department will also continue to work closely with police in all jurisdictions to receive their feedback on the operation of the compulsory reporting arrangements and on any areas in which improvements may be made. The department is already working closely with police to ensure that both the police and the department are well placed to receive any reports of reportable assaults. There are other scrutiny processes, such as estimates and the usual Senate scrutiny, which are available to examine any legislation or the implementation thereof. We will be closely monitoring the implementation of this legislation. I am placing that on the record. We also have the Aged Care Advisory Committee, which is well placed to advice us on this. We believe in ongoing monitoring, rather than waiting two years for a review.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I would be more than happy to have that review after one year or even six months, if that is useful. What form will the documentation of this monitoring that you are proposing take? Will it be publicly available and will it be available to the Senate? If so, at what stage?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

The data that I mentioned, which will be collected by the department, would be available to the Senate through normal inquiry. Senate estimates would be the primary place to ask for that. The minister could be asked as well. It will be open to scrutiny. We have the Aged Care Advisory Committee, which has been publicly established. It is not something which is being hidden from view. As well as that, you have the various police forces around the country—they are not part of the federal government—and they too will no doubt have their views about how this is being complied with. Senators who are interested would also be able to obtain from the various state governments the police point of view as to how this is being carried out.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

If I could press the minister on the data that he is referring to which will be available to us at estimates, will this data report the number and the nature of complaints that have been made, the facilities involved, the outcome of those complaints, the police attendance or otherwise, the charges that might have been laid and the outcome of that? How frequently will we be able to have access other than through estimates to that data?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

The reporting will be subject to the usual coverage that is given to complaints of a criminal nature. There will also be privacy aspects. One would not necessarily be expecting senators to ask for the names of those involved. If it were a court matter that would be public, but privacy principles would have to be observed. I do not see that there would be any problem with releasing the number of reports or the outcomes.

We have had similar questions in relation to investigations carried out by the Australian Federal Police. I would see it being answered in much the same way. If it were subject to an ongoing investigation, there would be limitations. If the matter were before the courts, obviously there would be limitations as to what information could be provided. It would be sub judice. But I would not see any trouble in saying what offences were alleged or the number of them. I would see privacy problems if you wanted to know details about the person who was a victim, such as their name. I do not think that anybody would be asking for that. You can see the parameters that I am trying to set here. They are the normal parameters applied to any investigation carried out by law enforcement. The information would be there for Senator Allison, subject to those limitations which apply across the board to any investigation or complaint.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I have one further question. Will there be an annual report prepared by the Aged Care Commissioner and will that contain all of the statistics? What can we expect?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

Will there be an annual report by the Aged Care Commissioner? Yes, there will be. Will it contain reference to the complaints and investigations? No. That will be under the auspices of the department and that information will be available through the channels that I mentioned.

Question negatived.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move Democrats amendment (1) on sheet 5171:

(1) Schedule 1, item 5, page 7 (after line 19), after section 95A-3, insert:

95A-3A  Procedures for merit selection of appointments under this Act

        (1)    The Minister must by writing determine a code of practice for selecting and appointing the Aged Care Commissioner that sets out general principles on which the selection is to be made, including but not limited to:

             (a)    merit; and

             (b)    independent scrutiny of appointments; and

             (c)    probity; and

             (d)    openness and transparency.

        (2)    After determining a code of practice under subsection (1), the Minister must publish the code in the Gazette.

        (3)    The Minister must review a code of practice determined under subsection (1) not later than every fifth anniversary after the code has been determined.

        (4)    In reviewing a code of practice, the Minister must invite the public to comment on the code.

        (5)    A code of practice determined under subsection (1) is a disallowable instrument for the purposes of the Legislative Instruments Act 2003.

This is a standard amendment. Most people in this chamber will be familiar with the Democrats’ standard amendment on merit selection. I urge the government to—for once—support this amendment.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

We will be.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

Senator Allison quite rightly points out that we have been down this road many times before. I do not want to sound like a broken record, but the government’s position remains unchanged. We will not be agreeing to it. But great care will be taken in selecting the Aged Care Commissioner. The Aged Care Commissioner will have a very serious job in ensuring the accountability of the department in implementing the new investigative arrangements, the aged-care standards and the accreditation agency in relation to its accreditation functions.

Question negatived.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move Democrat amendment (2) on sheet 5214:

(2)    Schedule 2, item 1, page 12 (line 19), omit paragraph 63-1AA(2)(b).

This amendment removes the requirement to make a report to the secretary in addition to the police. As I outlined in my second reading speech, we think this is unnecessary and I suggest that it be removed.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

The Labor Party will not be supporting the removal of the requirement to report to the secretary. We think it is important, if a trend is emerging in a particular facility, that not only the police be aware of that but that the department, as the regulator and funder of residential aged care in Australia, be aware that something is occurring in a particular facility. I do not think it is any great imposition on a provider to communicate that information to the secretary. I know that there are some providers who are concerned that this is somewhat big brother like. But I think that, when we are talking of allegations of this nature, it is quite appropriate for the funding agency and the regulator of the service to be absolutely aware, especially if trends are emerging in any particular facility. For those reasons we will not be able to support the Democrat amendment.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

The government will not be agreeing to this amendment. I think Senator McLucas has pointed out the different roles that you have with a department on one hand and the police on the other. The police investigate whether a criminal act has occurred. To that end, the police investigate the circumstances of the reportable assault. By contrast, the department is charged with investigating whether an approved provider has met their responsibilities under the Aged Care Act relating to the protection of residents and providing appropriate care and support. That is why we believe that both of them should be involved. There are two very different investigations, two different aspects—one is in the criminal jurisdiction and the other regulating the provision of aged care. The department and the police do work together. I do not see that that would compromise an investigation by the police. I am certainly not aware of any objection from the police in relation to the aspect that they both be involved.

Question negatived.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move Democrat amendment (3) on sheet 5214:

(3)    Schedule 2, item 1, page 12 (after line 24), after subsection 63-1AA(3), insert:

     (3A)    Subsection (2) does not apply if:

             (a)    the person against whom the reportable assault is alleged or suspected to have occurred makes an informed voluntary request that the approved provider not report the alleged or suspected reportable assault as required under subsection (2); and

             (b)    the person making the informed, voluntary request is capable of understanding the nature and consequences of that request.

           (3B)    For the purposes of subsection (3A), a person is assumed to be capable of understanding the nature and consequences of a request under that subsection unless there is evidence to the contrary.

           (3C)    In any matter before a court, the party asserting that a person is not or was not capable of understanding the nature or consequence of a request under subsection (3A) bears the burden of proving that assertion.

     (3D)    Subsection (2) does not apply:

             (a)    where a reportable assault is alleged or suspected to have been carried out by an adult person receiving residential care on another adult person receiving residential care; or

             (b)    where a reportable assault is alleged or suspected to have been carried out by an adult person receiving residential care on a staff member.

      (3E)    To avoid doubt, an approved provider remains responsible for observing any reporting or recording obligations as set out in the Accountability Principles in relation to an alleged or suspected assault in the circumstances set out in subsection (3D).

One of the objectionable parts of this bill is the taking away of the right of an older person in residential aged care to choose not to report an assault, if they are competent to make that decision. This is unlike any other person in society, who may choose not to make a report. We cannot see, if a person is competent, why this provision should be there. It is a question of equity and a person’s right to privacy and the right to take action or not take action.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

Labor cannot support this amendment from the Democrats, although we understand the intent behind it. During the inquiry and from the submitters it became evident that it is a fact that, if this legislation is passed in its current form, residents of residential aged-care facilities will lose a right that every other Australian has—that is, the right not to report a serious sexual assault or a serious assault of any nature.

You have to weigh that up with the evidence given by Dr Yates, from the AMA, during the inquiry when he was asked about what could happen if a staff member were to assault a resident of aged care, either physically or sexually, and that resident was not cognitively impaired, but he or she said they did not want to pursue the matter. We would be in a situation where that staff member would not be able to be reported to the police or to the department. That staff member then would be in a situation where they could continue to abuse people within that facility or in any other facility in which they worked. For that reason, where you have to weigh up the potential affect on a group of people as opposed to the loss of a right for an individual, I have to come down on the side of the group.

This has been an issue that has troubled me. I do not think it is right to remove rights from any citizen. But in this circumstance I think that the government has made the right decision and that we should be reporting all forms of abuse in those circumstances. As fraught and as difficult as it is, I think in these circumstances in aged care the right not to report is a right that we have to remove from resident. It is difficult, but I think it is the right call.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I echo those sentiments. Of course, the government does not agree to this amendment but let me put it this way: while sometimes the wishes of a particular resident may not be met, the provision of compulsory reporting ensures the safety of all residents is paramount. There can be no pressure on a resident to encourage them not to report, because the approved provider will then be required to report. It is a recognition of the broader need to ensure the safety of others. That is why the legislation adopts a cautious approach by requiring the reporting of all allegations to the police and the department regardless of whether a resident agrees that such reporting occur.

Again, I understand the reasons that the Democrats moved this amendment—it was a concern that was expressed by the Democrats during the Senate inquiry—but the government believes, on balance, that it should maintain its stance on this matter and that the protection in the broad of other residents is a more important and competing interest than the choice as to whether a victim can say they do not want to report. It is a very important issue. It is important to remember that the police and the department will deal with any issue sensitively. Of course, the police can take into account the wishes of an alleged victim as to whether charges are pressed, and that is something they do daily.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

It is clear I will not have support for this amendment, but I do point out that the amendment says:

(b)      the person making the informed, voluntary request is capable of understanding the nature and consequences of that request

So someone who was sexually assaulting a person who felt it was not necessary to report would not fit into that category. I accept that we are probably talking here, firstly, about a tiny proportion of people and, secondly, about an unlikely event. However, it seems to me to be a right that a competent person is a competent person, so it ought to be the same in nursing homes as it is anywhere else. But I accept that there is no support for the amendment.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

This was a particularly vexed part of the community consultations leading into our committee report, and it came up time and time again. Minister, I would hope that the monitoring process, which you have previously explained, will be part of the implementation of this legislation. Perhaps this particular issue could be itemised as part of the ongoing consideration. As this matter came up so consistently throughout the inquiry I would hope that, when people are looking at the kind of reviewing and monitoring that you have said will be part of this legislation, some consideration could be given to whatever guidelines or review processes are drawn up and that some work is done, particularly on this issue of working with people who are caught up in this process. That may in some way respond to the concern of a number of people who gave evidence to our committee who stated that one of the key issues of concern was how this would affect people’s citizenship rights and their own individual rights. At a time when we are trying to protect them, we are actually in some way minimising their own choice.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I think I can accommodate Senator Moore’s concern by giving an undertaking on behalf of the government that this will form part of the monitoring.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Minister.

Question negatived.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move Democrats amendments (4) and (5) on sheet 5214 together:

(4)    Schedule 2, item 2, page 15 (line 13), omit “and”, substitute “or”

(5)    Schedule 2, item 2, page 15 (after line 13), at the end of paragraph 96-8(1)(a), add:

                 (iii)    a person receiving residential care; or

                 (iv)    a family member or friend of a person receiving residential care; or

                  (v)    a person who, at any time during 2 years before the disclosure is made, has engaged in a series of activities in Australia or elsewhere as an advocate in the area of aged care policy.

Amendments (4) and (5) extend the whistleblowing provision to a person receiving residential care or to a family member or a person who, at any time during two years before the disclosure is made, is engaged in a series of activities in Australia or elsewhere as an advocate of aged-care policy. So it just takes it beyond the current set of whistleblowing persons who are given protection.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

Mr Temporary Chairman, I seek your indulgence here as to whether Senator Allison and I can have negotiations in this chamber. Senator Allison, you would be aware that your amendment is very similar to Labor amendments (1) and (2) on sheet 5216. The difference is that your amendment refers to ‘friend,’ whereas Labor’s amendment refers to ‘an associate of a person receiving residential care’. I think we are trying to get the same outcome. I wonder which set of words are the most inclusive. By using the word ‘associate of a person’ rather than using ‘friend’ I was trying to be as inclusive as possible. Whistleblower protection should be afforded to a broader group of people.

This issue was raised by the Victorian advocacy group, I think, quite forcefully during the inquiry. As I recall, Ms Lyttle, Chief Executive Officer of Elder Rights Advocacy said that because this legislation had been so rushed and because the advocacy organisations had not been included in the consultation it was only in the last couple of weeks prior to the legislation inquiry that they realised that they were a part of all this. They had not even included the desire to be covered as whistleblowers in their submission because it had not struck them. It really underlines the rushed nature of this legislation. Increasingly, advocacy organisations are going to discussions on behalf of their clients and meeting up with quite well-briefed and expensive legal teams, and Ms Lyttle informed the committee that threats of legal action have been made against them.

So when the minister says that they would have common-law protections—as you did in your concluding remarks, Minister—there is a lot of cost associated with that. Common-law protections for organisations like elder advocacy groups are not a lot of protection for what they do. They are not well funded organisations. They work very hard doing what they are doing, but you risk being threatened with legal action of defamation by aged-care operators if you simply do what you are in fact asked to do—that is, raise matters on behalf of residents. I do not think it is appropriate that they should not be protected by these whistleblower legislation protections.

Protection should be provided to aged-care staff but for advocates in particular not to be afforded protection under this legislation I think is an extremely large oversight. I encourage the government to think this one through. We have Commonwealth funded advocacy organisations doing a job on behalf of our community—advocating on behalf of residents who are vulnerable, many of whom do not have families to support them—yet they will not be protected for doing what we expect them to do. We are putting them at risk in an increasingly litigious society if we do not take this opportunity to include them in the whistleblower protections in this legislation. However, I come back to my earlier point, Senator Allison, and wonder if we could work out which is the most inclusive set of words so that we can make a decision about whether to support yours or whether in fact you might like to support ours.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I think probably ‘associate’ includes a broader group of people, and you may find definitional problems with ‘friend’. There would be some who would argue that associates are not necessarily friends. I would be interested in broadening this as much as possible, so I am happy to withdraw that amendment, Chair, and to move to the ALP amendment, which we will obviously support. I seek leave to withdraw Democrat amendments (4) and (5).

Leave granted.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

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

(1)    Schedule 2, item 2, page 15 (line 13), omit “and”, substitute “or”.

(2)    Schedule 2, item 2, page 15 (after line 13), at the end of paragraph 96-8(1)(a), add:

                 (iii)    a person receiving residential care; or

                 (iv)    a family member of a person receiving residential care; or

                  (v)    an associate of a person receiving residential care; or

                 (vi)    a person who, at any time during 2 years before the disclosure is made, has engaged in a series of activities in Australia or elsewhere as an advocate in the area of aged care policy; and

I think I have spoken to the substance of this whistleblower protection. During Senator Humphries’s speech on the second reading debate, I think he misunderstood the intention; however, I will raise that in the next one. This is very straightforward. It says that these groups of people should be protected from any detriment if they report a reportable assault. I will move to change that in the next block of amendments. There are a whole range of people who witness things in residential aged care, not only staff, and they should also be protected from any form of retribution as a result of their reportage. This is simple. If we are really interested, if we really care about the people who live in residential aged care, we should be encouraging a culture of reporting. Those facilities that are exemplary have at the front of their policies on inappropriate dealing with older people that the first thing you have to do if you see something untoward is to tell somebody. That is the culture that we need to be encouraging.

We recall from the 7.30 Report program in February last year that, when the woman was abused, it was witnessed by another person, and that person did not report it. How on earth can you live in an institution where somebody sees an event of that nature and does not think that the first thing they have to do is tell? This is the culture that we have to get rid of from residential care. It is only in a small number of the facilities, but we have to stop it. We have to bring in a culture of openness, transparency, dignity and respect. To do that, we have to provide protection not only to the staff but to all people who may witness inappropriate dealings so that there is not retribution.

During our inquiry into quality and equity in aged care, I am afraid we were astonished at the number of people who talked about retribution. We know that older people feel that they cannot complain, because they might get kicked out or they will not get the care they need. They need protection as well. We have to inculcate in aged care a culture of openness, of transparency, of honesty, of respect. That is what does happen in most of our facilitie and, for those that do not encourage that culture, we have to ensure that everybody who witnesses anything is given the protection that they should have. So I encourage the government, particularly in terms of the advocates, to look very closely at this amendment. It is sensible, it is achievable, and it is doable. It is not outlandish, and I think there should have been consideration of extending whistleblower protection.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

These amendments are broadly consistent with the amendments moved previously by the Democrats and subsequently withdrawn. The main difference, as I see it, between the amendments moved by the Australian Labor Party and those moved by the Democrats is that the ALP amendments are slightly narrower in that they do not extend protection to disclosures made by friends of people receiving residential care. For the same reasons as were outlined in relation to the Democrat amendments, however, the government does not support these amendments. I touched on that in my summing up speech earlier.

The government considers that there is a major difference between staff and approved providers on the one hand and people such as residents, families and advocates on the other. The reason for that is that approved providers and staff are required by law to make reports to the police and the department, whereas the other group of people that I have described are not. We have one group, the staff and providers, who have to report. The other group, which is made up of residents, families and advocates, do not have to report. Where there is a duty imposed on someone, we believe there should be reciprocal protection in relation to that duty of disclosure.

The other group that does not have that duty can make reports confidentially or anonymously and can thereby avoid any action at common law. As has been noted in numerous reports relating to whistleblowing, anonymity is one of the strongest protections available to people who make disclosures. This option is not available to approved providers under the new compulsory reporting requirements. That justifies putting in place protections for those providers. Those providers cannot make a report anonymously, whereas the other group that I have described can—the friends, residents and advocates.

We have available the common law, which provides various protections under public interest and truth. The common law, as we have seen, provides a sound basis for protecting any action where someone has a basis for making that report—that is, if you want to not do it anonymously. I think that that is an appropriate balance. Nonetheless, this will be the subject of monitoring. The government does not agree to these amendments for those reasons, but of course all of this will be monitored, as I mentioned earlier.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

I do not want to delay this debate. Obviously the motion is not going to be carried. Minister, I respect the fact that you have come to this recently. I want to talk about the way whistleblowing in aged care operates. I understand your distinction that there are some people who are required by law to report, but are we not trying to support those people who do report, irrespective of their requirement? People want to tell somebody when they see something inappropriate happening in aged care. You are essentially saying that that group of people, because they are not required by law to report, should not have any protection if they want to become involved in whistleblowing. If we are trying to encourage people to be open and transparent, simply saying that you can make an anonymous complaint is not sufficient. Aged care is a small community, and we all know that the fact is that most people end up finding out who has complained.

I will go to the point you made about anonymity. Yes, it is true that a relative can make an anonymous complaint and a resident can make an anonymous complaint. An associate can make an anonymous complaint. But I hardly think an advocate can make an anonymous complaint. If an advocate is working on behalf of a residential aged-care facility, they are almost compelled to front that facility and say, ‘I am here on behalf of resident A, who alleges X, Y and Z.’ They can hardly make an anonymous complaint through a complaints process and fulfil their obligations as an advocate.

An advocate works openly on behalf of a resident but, under this legislation, they will not be protected. Recognising that you have not been close to this—I respect that; I am not critical of that—I refer you to the earliest evidence presented to the Senate inquiry. Ms Lyttle and Mr Aivaliotis from Elder Rights Advocacy in Victoria talked about the increasing amount of litigation or potential litigation that that organisation has to deal with simply because they are acting on behalf of residents in aged care. We are surely not trying to not protect these people, who are simply doing their job on behalf of vulnerable older Australians?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I will just add to my previous comment. I have talked about making anonymous complaints. Confidential complaints can also be made to the department. The person’s identity is dealt with on a confidential basis. The police jealously guard the identity of a complainant, for obvious reasons. It matters not whether it is theft, armed robbery, murder, rape or whatever. The police, across the board, will protect the identity of the complainant, for obvious reasons. To that extent, no matter who you are, if you go to the police they will not divulge your identity. If they did, it would be regarded as highly improper. They do not do so for very good police investigative reasons—so that there can be no comeback against the complainant. I remind the committee of that fact when we talk about the police.

Let us look at the department, because that is the other of half of it. If you make the complaint to the department, the department says that if you are in the other category of resident, family of resident or advocate you can do it anonymously or you can do it confidentially and that confidence will be respected. That then gives that group the protection to make the complaint.

Question negatived.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move Democrat amendment (6) on sheet 5214:

(6)    Schedule 2, item 2, page 15 (line 26), after “reportable assault”, insert “, or any other conduct amounting to neglect or abuse of any kind,”.

This extends ‘reportable assault’ to be neglect or abuse of any kind. It is not just physical or sexual; it is also psychological or financial, which we understand is a major problem, and it is neglect—so it is neglect and abuse of any kind. We cannot see any good argument for limiting the kind of abuse in the way the government has, and I would be obliged—it is clear the minister is not going to support this—if he could explain why it is that psychological abuse should not also be reported, and, likewise, financial abuse.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

We are in a similar situation again, Senator Allison, where the Labor Party amendment, which is next on the running sheet, is not dissimilar to the one you have just moved. I might let the minister respond to your questions and then we can discuss this amendment—to be frank, I think they are equally as good. I do not think there is any difference. We can talk about it.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

As I understand it, the amendment moved by the Democrats proposes to extend the protections for disclosure beyond disclosures relating to reportable assaults but also to other conduct amounting to neglect or abuse of any kind. The government acknowledges that elder abuse is broader than the two serious matters considered under the consideration of this bill and that elder abuse can include psychological, financial abuse and neglect. This bill, however, focuses on sexual assault and serious physical assault. It is important to note that any person may at any time report any type of abuse to either the department or the police, and this bill in no way constrains that.

If a person chose to report these other types of abuse, they would be afforded protection by virtue of the fact that they can choose to make a complaint anonymously or confidentially, as I mentioned earlier. The new Office of Aged Care Quality and Compliance will investigate any and all information that comes to its attention regarding any abuse or neglect by approved providers and any possible breach of an approved provider’s responsibilities under the Aged Care Act—and that is very broad indeed.

The Aged Care Act is very clear about the rights of residents, which include the right to live in a safe and secure environment, and the responsibility of approved providers to provide such an environment. However, it is important to distinguish this type of complaint from a complaint about a family member abusing a resident of aged care. The Aged Care Act cannot regulate the activities of family members or friends of residents of aged-care services. While the government acknowledges this can occur—and it is very distressing when it does occur,—the Commonwealth cannot regulate through the Aged Care Act the activities of private citizens and the relationship between family members.

The legislation strikes a balance by ensuring that those who are required by law to make disclosures about certain types of abuse are also protected by law from victimisation. Those who report other types of abuse and who are not required by law to make reports will be encouraged to do so and will also have the protections that are afforded by confidentiality and anonymity. Such people also have all the existing protections available at common law. The government will not be supporting this amendment for those reasons.

I think it is important to bear in mind that this bill is focused on sexual assault and serious physical assault and that there are mandatory requirements in relation thereto for obvious reason—because of their serious nature. However, that does not exclude or mean that we are dismissive of a broader aspect of abuse, and there is the new Office of Aged Care Quality and Compliance, which will investigate any information of that sort which comes to its attention. It still does not stop people from raising these issues or making a complaint of a more general nature.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I am puzzled at your response, Minister. It is not my understanding that this amendment extends the reportable assault provision other than in the existing bill. This is not the amendment that extends it to other persons. If indeed you say that neglect and abuse of any kind—effectively, I think that is what you just said—are covered then why not make that quite explicit? It is not in the bill; it talks about physical and sexual abuse and does not refer to neglect. I think neglect is a very important area. If there is a worker in aged care who persistently neglects an older person who is in residential care, strictly speaking this legislation does not appear to me to cover it. It is the same with psychological abuse—it can be devastating to an older person. It seems to me from your response that you do not have a real objection to what is being put here by way of amendment, so I suggest we make it very clear and that you accept this amendment. I hope you are checking right now as to what I have just said about this not extending beyond the current group of people who are required to report. I will change the amendment if that is your interpretation of it. We are talking here about reportable incidents.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

Perhaps I can ask a question of Senator Allison. The way the amendment is couched, it is relating to the protection of those who make a report. But by the way it is inserted in that section—and, indeed, the brief description given on the amendment sheet entitled ‘extension of reportable abuses’—I think it does give rise to what we are saying. What we are saying is that the Democrats propose to extend protections for disclosure beyond disclosures relating to the reporting of assaults to other conduct amounting to neglect or abuse of any kind. Is it the intention that that also mean that there is a mandatory reporting requirement for all abuse? Is that what the Democrats are intending? Or is this only about the protection? Can you see my point? This bill has mandatory reporting for sexual assault and serious physical assault. Coupled with that, there is a protection for whistleblowing in relation thereto. So with the relevant duty you have a reciprocal protection. The Democrats are purporting to extend the protection for disclosure beyond disclosures relating to those serious assaults I mentioned to other conduct—thereby implying that the mandatory reporting extends to that other conduct. If I can just ask Senator Allison that question, that might clarify my understanding of what her intention is.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

It is my understanding that it was about the forms of abuse. Maybe this is another example of where it would be better for me to withdraw my amendment and for us to go to Labor’s amendment, which is perhaps drafted in a way which is more explicit with respect to expanding the types of abuse from physical and sexual. It is spelled out quite clearly in Labor’s amendment. Minister, I would be quite happy to withdraw that amendment if you are in favour of the ALP amendment. I seek leave to withdraw Democrat amendment (6) on sheet 5214.

Leave granted.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

by leave—I move opposition amendments (3) and (4) on sheet 5216 together:

(3)    Schedule 2, item 2, page 15 (line 26), after “reportable assault”, insert “or any other form of abuse”.

(4)    Schedule 2, item 2, page 15 (after line 28), after subclause 96-8(1), insert:

        (2)    For the purposes of paragraph (1)(d), any other form of abuse may include, but is not limited to, the following:

             (a)    physical, sexual, emotional, psychological or financial abuse; or

             (b)    neglect.

Minister, on Lateline in February 2006 there was a story—it was part of a series—about an aged-care worker who was unnamed and would not be identified; and I think that tells us something. This worker, who was unnamed and would not be identified, said:

In the facility, in this particular facility, it was starting to happen before I left more and more and you feel you have—you can’t do anything. You have no recourse to say anything. Because if you do say anything, you are then bullied by management, from right up, the head office right the way down. You have no recourse. There is nowhere—you put in reports and say that this is happening. Nothing is ever done. It disappears never to be seen again.

That is the culture that this amendment is trying to overcome so that all people who witness things—whether they be friends, relatives, staff, associates or advocates of residents in aged care—will feel comforted and supported by a culture of protection for the sharing of information. In some facilities in Australia we do not have that. We need to encourage that. That is why we have moved these amendments: so that all people know that they are protected in sharing information that they believe is inappropriate.

We do hear stories of retribution in aged care. We have to develop a culture that militates against that. We want to be sure that all forms of abuse are able to be reported, not just sexual and physical abuse. They are horrific but they are a small part of the extent of the abuse that occurs. That is in the literature. We understand that. We should be encouraging the reporting of all forms of abuse—from neglect and wilful hurt to psychological abuse. During that series of Lateline stories we heard the story of a facility where people were squirting water pistols in the faces of older people who were in wheelchairs. That is offensive to everybody. If somebody witnesses that—a friend—then they should feel protected enough to report that. But the legislation as it stands does not allow that. By accommodating this very straightforward amendment, we are simply affording whistleblower protection on all sorts of abuse that may occur, not just the very serious forms of sexual and physical abuse.

The minister said earlier when we were debating the Democrat amendment that it does not stop anyone reporting. I am sorry, Minister, but it does. If people do not feel protected—if they feel that Mum might get kicked out if they complain too much—then they will not report. Unfortunately that is the situation that we are in. The minister said you can report any type of abuse. Well, you cannot do that without retribution in some places. That is what we are trying to militate against. We talked earlier about the question of anonymity and how it does not apply to advocate organisations.

The issue that the minister raised about private citizens and family members potentially abusing members of residential aged care I really think is not intended to be part of the scope of this. This is about neglect and abuse within an aged-care facility by anyone associated with that facility. If someone witnesses the abuse of another person in a facility, there is nothing to stop them reporting that; but there is limited action that a facility could take. So that is not the intent of this. This is so that abusive behaviours and neglectful behaviours, especially intentionally neglectful behaviours, can be reported without retribution for all sorts of people who wish to report. It is not difficult; it is not hard. It is only fair to older people that we ensure that everybody who wants to tell their story about something that they have seen can feel protected in doing so.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

These amendments are also similar to those previously moved by the Australian Democrats and they clarify that protected disclosures extend to any other form of abuse, including physical, sexual, emotional, psychological and financial abuse or neglect. The nub of the question is whether you extend that protection to the reporting of these forms of abuse other than those  which are described in the bill—that is, sexual assault and serious physical assault.

In relation to the department’s treatment of a provider—that is, if the department were to take punitive action against a provider for reporting—the new Aged Care Commissioner would oversight that and would be charged with making sure that the department did not act inappropriately. In relation to a provider taking punitive action against an aged resident because of some complaint, the department oversights that, as I understand it, and action could then be taken.

The government is not persuaded to agree to the amendments, but I say again that this is one aspect that will be monitored. I give an undertaking that this will be monitored by the government. I am referring to the question of the reporting of wider abuse—which has been the subject of this debate and the previous Democrat amendment—and to the question of whether or not a culture of reporting is being engendered. Obviously, that is something we agree with. Whilst the government does not agree with opposition amendments (3) and (4), it will make this one of the subjects of monitoring.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

I thank the minister for that. I recognise that this issue has possibly not been thought through, given the events of the last week—but that is the way it is. How will that monitoring occur, Minister? The scope of this legislation is simply serious physical and sexual assault. How will we monitor the culture of being able to make a complaint and whether or not whistleblower protection should be afforded to a whole range of other complaints that will be made? I am unsure as to how it will happen. If we are monitoring the implementation of a compulsory reporting regime around very clear, specific, potentially criminal behaviour, then how are we going to monitor neglect in that environment or the need for whistleblower protection for people who report neglect? It just does not fit in the structure of this legislation. While I accept your commitment that this will occur, and I thank you for that, I would like to know how it is going to happen so that we can also watch how that monitoring might occur.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

The mandatory reporting which comes in is recorded, and that would relate to the alleged sexual assaults and serious physical assaults. The department also receives other reports of a wider and more general nature which relate to activity and abuse that both the Democrats and the ALP have sought to include in amendments. The department would merely have to look at whether there has been an increase in the number of reports for which protection is offered and whether there has been a decrease or a plateauing in the number of reports for which protection is not offered.

Could I suggest that, if you saw reports that were the subject of protection suddenly increase, you could deduce two things: (1) the mandatory reporting was working and (2) the protection that was being offered for that reporting was working. In contrast to that, if you saw a fall-off in reporting of abuse of a more general nature, you would have to ask the question: ‘Why is one increasing and the other dropping off? Are they disproportionate? If they are, why are they disproportionate?’ The department keeps a record of all of these reports—keeping data is part and parcel of its role—and it could draw a comparison between the reporting. If you want to engender a culture of reporting, obviously you would want to compare and contrast the number of reports and the nature of the reports. You would also want to work out whether the mandatory reporting and the protection you were offering to people were working. You could tell that by the number of reports. That would be one way of monitoring it.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

With respect, Minister, that does not make any sense. Here we have a regime for protecting people who report, and you are saying that we are going to monitor to see whether there is a disproportionate number of reports and, if there is, we will know that there is something wrong and we might need to extend it. I have misunderstood what you said earlier, obviously. Let us choose one of the offences that does not appear to be spelt out in the bill—neglect. Does the bill cover someone who persistently and regularly neglects a person in residential aged care? Does that constitute a reportable assault?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

It is a breach of the Aged Care Act and it is subject to spot checks which are carried out on providers, but it is not the subject of this bill, which provides for sexual assault and serious physical assault.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

So we have a situation where an aged-care resident can be neglected, can be emotionally, psychologically and financially abused; and if there is a spot check that picks that up then the Aged Care Act comes into play. But if there is not a spot check that picks it up then that abuse can continue to go on and may not be reported because the reportee may not be protected by the provisions of this act. Can you confirm that that is the case?

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

As I said earlier, it is subject to reporting at any stage by anyone, and that is under the Aged Care Act. If you see neglect or financial or emotional abuse, you can report it under the Aged Care Act. That is just not on. Anybody can report it at any time—there is no problem with that—and they can do so anonymously or confidentially. Added to that, you have spot checks which are carried out. What I am saying is: that is still subject to reporting; it is just that we do not make it mandatory as we are doing in this bill.

Going back to my earlier point about monitoring, obviously you would monitor all the reports made to the department and you would work out the categories they fell into: neglect, emotional abuse, serious physical assault or sexual assault. You would typecast each one and then draw a conclusion, if you could—from the numbers, if they demonstrated that—that perhaps your regime of this bill was working because you were getting more reports of sexual assault and physical assault. I think you can make those deductions. It would depend, of course, on the number and the nature of reports, but that is how you monitor it. You monitor the reporting, across the board, that the department receives. That is all open to Senate scrutiny, through estimates, as I mentioned earlier. I mentioned in this debate that this issue will be the subject of attention, and it will be.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I think the whole point of this bill is to facilitate reporting. It seems to me that that is the objective. What we are arguing about here is: reporting of what? There is no point in having this bill if the reports are coming through, and there is no barrier to doing that, and everybody is happy with the current arrangement. Minister, you do not seem to understand what we are getting at here, and that is: why would you put into the bill physical and sexual abuse but not psychological abuse, financial abuse or neglect? Can you explain what is so much more acceptable about psychological abuse compared with sexual and physical abuse? This is what we are trying to get at. Why have you chosen those two and not the others? I understand that the bill gives the broader set of protection for the broader set of abuses, but what determined that you would include just those kinds of abuse and not the others? That is the question.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I think that ‘more acceptable’ is the wrong way to put it. None of the behaviours described by Senator Allison are acceptable in any form or shape. But where you attach mandatory reporting, you are breaking away from the law across the board as we know it. It is rare. It is not often that you find in our laws a duty to report. It is a departure from accepted practice. In this case, we are making that departure for serious cases, and those serious cases relate to sexual assault and serious physical assault. To extend mandatory reporting to all of the activity we have been talking about would be excessive. That is the first bit.

The second bit is: do you offer the protection for the reporting of only the serious behaviour or criminal activity? Do you extend that protection to the reporting of all of the activity that has been mentioned? We believe the same argument applies. The protection should be attached to the duty to report; and, in the wider sense, the reporting of neglect, emotional abuse and other forms of abuse can be made anonymously and confidentially, by anyone, to the department. Those activities are contrary to the Aged Care Act. So we are saying: where there is a duty to report, there is a protection to go with it; where there is not a corresponding duty to report then there is not the same protection. What I have said is that this will be monitored, and it can be monitored by the department assessing all the reports it receives over a given time. It will assess the nature of the reports, the number of reports, and who made them. From that, it can draw conclusions as to whether or not the regime in the bill is working. If it is working, that is fine; if it is not, that is something we will have to revisit, if that is the case.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I will not prolong this debate much longer, but I would point out to the minister that neglect can be as bad in its outcome as serious physical abuse. You can neglect a person by starving them. We have already heard of cases, rare indeed, where food is withheld from people and they are not fed. So neglect can be a very serious form of abuse indeed. You might argue financial abuse is not life threatening, and that is probably right. You might argue that emotional abuse is not life threatening—and perhaps that is true—but I am not so sure about psychological abuse. I think that can lead to very harmful outcomes, including mental illness.

I think it is a great pity that the government has drawn the line here, because we are talking about highly vulnerable people. If you are in a nursing home or even a hostel these days then you are going to be pretty vulnerable. As we know, people do not last very long when they enter nursing home and residential care. I strongly object, Minister, to the government taking this line—in particular with neglect, but I also think that psychological abuse ought to be covered by the provisions of this bill. We will certainly be pursuing this into the future, but in the dying moments of this debate I ask you to reconsider.

Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Link to this | Hansard source

I have one question. I am really disappointed that the government has not taken the opportunity to extend the types of reporting that will be protected under these whistleblower elements. This goes to the nature of this legislation. This legislation tells people that they have to do something if they see something; they have to report. I accept that. It is a different approach to the more collaborative and positive approach of encouraging a culture of openness and transparency.

We should say to everyone involved in aged care: ‘We value these people so much, they are so important to us, that anything that you see should be reported within the facility, and then you will be protected. If you see abuse of the nature that Senator Allison talked of, like someone deliberately removing food when they should not be or people not being changed when they should be changed, then you should talk about it.’ This is the culture we want in aged care so that all of us are there for the good of the residents to do the right thing.

But, no, the attitude of the government is: ‘You will report sexual and physical assault and we don’t really care about the rest.’ That is what this legislation says. If they adopted these amendments, we would be saying very clearly to the residents and their families, staff and everybody else in aged care: ‘These people are valuable and if you see anything that you think is inappropriate’—because it would be the culture of the organisation, not a direction from the minister—‘because it is the right and proper, human thing to do, you have to tell somebody.’ That is what we should be engendering in this legislation, but we are not.

I am concerned, Minister, that you are saying that we are going to be able to monitor the reports that are coming in. I put to you that people do not report neglect to the department and this will not encourage them to do that. The Aged Care Standards and Accreditation Agency may make some assessments of where neglectful behaviours in a facility might be occurring, but there is not a culture of reporting to the department things that you see as a matter of course. You say that there is going to be a difference that will be measurable, but that is just not technically feasible. It does not happen now. We do not measure things and there is no requirement to report. It is a very arbitrary measure. I think anyone looking at the way aged care operates would basically laugh at that being a measure of the success or otherwise of this legislation. Minister, I really am beseeching you. These are important amendments and I want you to consider them closely.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

Because of the importance of the issue, I rise again. There has been some querying of how we could monitor it and the paucity of detail. I will deal with that first. On my advice, the department receives around 6,000 calls a year which are either complaints or offering information of some kind. I would suggest that from that you could get a pretty broad picture of what is going on. However, we fully recognise that that by itself in the past has not been sufficient; that is why we have this bill here for mandatory reporting of serious incidents. But people do complain. They do phone up the department. We have the new office of aged care accreditation with new staff, and they will be carrying out that scrutiny. So I do think it is something that is capable of being monitored. On that basis, I again make the point that the government will be ensuring that it is monitored, and the government still does not see its way clear to supporting these two amendments.

Question negatived.

Bill, as amended, agreed to.

Bill reported with an amendment; report adopted.