Aged Care and Other Legislation Amendment Act 2025 (45 of 2025)

Schedule 2   Amendment of the Aged Care (Consequential and Transitional Provisions) Act 2024

Part 2   Protected information

Aged Care (Consequential and Transitional Provisions) Act 2024

28   In the appropriate position

Insert:

Schedule 4 - Special rules about provisions for information management for transitional purposes

Part 1 - Interpretation

1 Meaning of expressions - general

In this Schedule:

new law means the Aged Care Act 2024 and any instruments made under that Act.

old law means any of the following laws:

(a) the Aged Care Act 1997;

(b) the Aged Care Quality and Safety Commission Act 2018;

(c) the Aged Care (Transitional Provisions) Act 1997;

(d) an instrument made under any of those Acts.

personal information has the same meaning as in the Privacy Act 1988.

System Governor means the Secretary of the Department.

transition time means the time the new Act commences.

2 Meaning of transitional purpose

(1) A transitional purpose , in relation to the performance of a function or duty, the exercise of a power or the doing of a thing, means the performance of the function or duty, the exercise of the power or the doing of the thing for the purposes of the transition from the regime provided for by the old law to the regime provided for by the new law:

(a) whether the performance of the function or duty, the exercise of the power or the doing of the thing is under, for the purposes of or in connection with the old law or the new law; and

(b) whether the performance of the function or duty, the exercise of the power or the doing of the thing is before, on or after the transition time.

(2) Without limiting subitem (1), the performance of a function or duty, the exercise of a power or the doing of a thing is for a transitional purpose if it is:

(a) in preparation for the performance of a function or duty, the exercise of a power or the doing of a thing under, for the purposes of or in connection with the new law; or

(b) under, for the purposes of, or in connection with:

(ii) a savings, transitional or application provision (however described); or

(iii) the application of the Acts Interpretation Act in relation to the interaction between the old law and the new law.

Part 2 - Dealing with information in performing functions, etc. for a transitional purpose

3 Authorisations to collect, use or disclose protected information for transitional purpose

(1) A person may, for a purpose mentioned in subitem (2), collect, use or disclose the following:

(a) protected information within the meaning of any of the following:

(i) the Aged Care Act 1997;

(ii) the Aged Care Quality and Safety Commission Act 2018;

(iii) the Social Security Act 1991;

(iv) the Social Security (Administration) Act 1999;

(b) information that was obtained or generated before the transition time for the purposes of the aged care programs under any of the following items in the Financial Framework (Supplementary Powers) Regulations 1997:

(i) Item 415.018 – Schedule 1AA – Residential and flexible care;

(ii) Item 163 – Schedule 1AB – Commonwealth Home Support Programme.

(2) The purposes are as follows:

(a) performing a function or duty, exercising a power or doing a thing for a transitional purpose; or

(b) assisting another person to perform a function or duty, exercise a power or do a thing for a transitional purpose.

Note 1: This subitem constitutes an authorisation for the purposes of paragraph 86-2(2)(e) of the Aged Care Act 1997 and paragraph 60(3)(c) of the Commission Act.

Note 2: This subitem constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws (including the common law).

(3) This item applies to the collection, use or disclosure of information on or after the day the Aged Care Act 2024 received the Royal Assent and before the transition time.

(4) The status and rights of all persons are, by force of this subitem, declared to be, and always to have been, the same as if this item had been in force during the period:

(a) beginning on the day the Aged Care Act 2024 received the Royal Assent; and

(b) ending at the transition time.

(5) To avoid doubt, a reference in paragraph (1)(a) to protected information within the meaning of the Aged Care Act 1997 includes a reference to information that is taken to be protected information because of the operation of item 8 of this Schedule (which deals with information acquired or generated for transitional purposes).

4 System Governor may request information or documents from persons or bodies

(1) If the System Governor reasonably believes that a person or body has information or documents relevant to the performance of the System Governor's functions for a transitional purpose, the System Governor may, before the transition time, request the person or body to give the System Governor any such information or documents (or copies of any such documents).

(2) The person or body is not required to comply with the request.

Note: The System Governor may require a person to attend to answer questions or give information or documents under item 5.

5 Notices to give information or produce documents required for System Governor's functions

(1) The System Governor may, by notice in writing given to a person before the transition time, require the person, within 14 days or another reasonable time stated in the notice, to:

(a) give the System Governor any information; or

(b) produce to the System Governor any documents (or copies of documents);

specified in the notice that the System Governor requires for the performance of the System Governor's functions for a transitional purpose.

(2) The System Governor may, by notice in writing given to the person, before or after the transition time, extend the time within which the information must be given or documents or copies of documents must be produced in accordance with the notice under subitem (1).

6 Failing to comply with notice

Strict liability offence

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

(a) the person is required to give information, or produce documents or copies of documents, in accordance with a notice given to the person under subitem 5(1); and

(b) the person fails to comply with the requirement.

Penalty: 30 penalty units.

Civil penalty provision

(2) A person is liable to a civil penalty if:

(a) the person is required to give information, or produce documents or copies of documents, in accordance with a notice given to the person under subitem 5(1); and

(b) the person fails to comply with the requirement.

Civil penalty: 30 penalty units.

7 Privilege against self-incrimination not abrogated

(1) Nothing in this Part affects the right of a person to refuse to answer a question, give information or give a document or a copy of a document on the ground that answering the question, giving the information or giving the document might tend to incriminate the person.

(2) The fact that this item is included in this Part does not imply that the privilege against self-incrimination is abrogated in any other Act.

8 Meaning of protected information - information acquired or generated for transitional purposes

The definition of protected information given by paragraph 86-1(a) of the Aged Care Act 1997 is taken to include information acquired or generated under or for the purposes of the old law or this Act for a transitional purpose.

9 Use of protected information for transitional purposes

Paragraphs 86-2(1)(c) and (2)(a) of the Aged Care Act 1997 are taken to apply to information acquired or generated under or for the purposes of the old law or this Act for a transitional purpose.

10 Compensation for acquisition of property

(1) If the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.