Aged Care Amendment (Implementing Care Reform) Bill 2022

The Law Council’s 16 August 2022 submission to the inquiry by the Senate Community Affairs Legislation Committee in relation to the Aged Care Amendment (Implementing Care Reform) Bill 2022 (Bill) has been material to Parliament’s consideration of the Bill.

The Bill would amend the Aged Care Act 1997 (Cth) to:

• impose responsibilities on approved aged care providers to ensure at least one registered nurse is on site, and on duty, at all times at a residential aged care facility (one nurse requirement), subject to being granted an exemption to that requirement under a scheme to be provided for by the Minister under the Quality of Care Principles 2014 (Cth) (exemption provision);
• prohibit the imposition of a charge for ceasing the provision of home care and authorise the Minister to impose other requirements in relation to home care charges (home care charges); and
• empower the Minister to require the Secretary to publish information about aged care services or providers (information publication).

In its submission the Law Council made recommendations in relation to each of these features. Notably, it recommended:

(a) in relation to the exemption provision, which provided the Minister with a wide discretion to prescribe an exemption regime, that amendments be considered to:

       (i) identify the person who may grant an exemption to the one registered nurse requirement – expressly to identify the Secretary as that person; and

       (ii) require the exemption power be limited such that an exemption could only be granted:

             A. where the decision maker considered the purpose of the one nurse requirement – to ensure the ongoing availability of clinical care – would be otherwise met; and

             B. for a limited period and/or subject to ongoing review;

       (iii) provide a mechanism which enables an approved provider to seek merits review of a decision not to grant an exemption;

(b) in relation to the one nurse requirement, amendments be considered to provide clarity around the meaning of the terms ‘on duty’ and 'at the care facility'.

The amendments proposed to the exemption provisions were largely directed towards better ensuring the exemption regime would be consistent with the scheme envisaged by the Royal Commission into Aged Care Quality and Safety.

In its report tabled on 2 September 2022, the Committee recommended that the Bill pass. The aforementioned Law Council recommendations were quoted in the main report – see [2.64] and [2.40]-[2.41] respectively. In a dissenting report, Senator David Pocock recommended, amongst other things, that the exemption provision be amended consistent with the Law Council’s recommendations (see [1.7]-[1.8] and recommendations 1, 2 and 4 of the Senator’s dissenting report).

The Bill was brought on for a second reading debate this week, and the Law Council’s submission was referred to in debate by independent, the Hon Rebekha Sharkie MP (page 39).

On Tuesday, the Government introduced an amendment sheet which would prescribe an exemption regime in the Bill consistent with recommendations (a)(i) and (ii) of the Law Council’s submission. On 8 September 2022, the amendment sheet, and the amended bill, was agreed to by the House – the bill will now be considered by the Senate.

Read more.

.au Domain Administration

The Law Council of Australia is reminding businesses that they only have a short timeframe to secure the new ‘.au’ direct domain name for themselves and protect against a number of risks.

Since 24 March 2022, direct registration under ‘.au’ has been available to Australian businesses. Instead of a domain name ending with ‘.com.au’, ‘.net.au’, ‘asn.au’, etc, it is now possible to register a shorter ‘.au’ name.

Businesses were provided with a window in which to secure their own ‘.au’ domain name under a priority allocation process which concludes on 21 September 2022.

If no priority applications have been made for the .au direct match, it will be become available for registration by the general public at 9:00pm UTC 3 Oct 2022 (8:00am AEDT 4 October 2022).  

The availability of this new domain raises many potential issues for Australian businesses including law firms, barristers’ chambers and sole traders:

• a third-party may now register directly under .au a domain name substantially the same as an existing .com.au or .net.au – thus appearing to relate to an existing business, creating confusion for customers/clients and other potential users of that business’s website and email addresses;

• a direct registration .au domain name could be used to impersonate an existing business’s legitimate website; and

• the direct registration of a .au domain name containing an existing business’s trade mark or business name could be used in a misleading or deceptive way to exploit the legitimate business or its customers.

The Australian Cyber Security Centre has warned that the new direct registration opportunity could allow cybercriminals to facilitate fraudulent activity like business email compromise which can lead to invoice fraud.

Learn more about securing your .au domain name at the Priority Allocation Process information page.

NATIONAL HUMANS RIGHTS ACT

The Law Council’s view that Australia needs a federal legal framework which guarantees adequate protection for fundamental human rights has been brought to the fore this fortnight following an Amnesty International Australia survey suggesting about three-quarters of Australians support the creation of a federal act.

Australia is the only Western democracy without some form of a charter of rights at the national level. Many Australians would not know that – unlike elsewhere around the world - their human rights are backed by few Constitutional or statutory guarantees.

In line with its revised Federal Human Rights Charter Policy, the Law Council considers that the implementation of Australia’s international human rights obligations should be pursued through appropriate measures which include, as a minimum, a statutory charter of human rights.

A federal human rights charter would ensure that the decisions and actions of federal governments are guided by the time-honoured values of freedom, equality, justice, compassion and dignity.

It would also provide a much needed, established framework setting out the core principles to resolve tensions which arise when rights come into conflict.

John Koowarta Scholarship 2023

The John Koowarta Reconciliation Law Scholarship is available to Aboriginal and Torres Strait Islander students enrolled in an approved course of study that is a prerequisite to admission as a legal practitioner in any Australian jurisdiction at or through an Australian tertiary institution.

Applications for the 2023 scholarship round is closing on 30 September 2022.

If you have any queries about the scholarship, or would like to be notified when the next round opens please send an email to koowarta@lawcouncil.asn.au.

For more information and eligibility criteria, please visit the Law Council website.

Tom Yuncken Australian Young Construction
Lawyer Award

The Business Law Section is calling for nominations for the 2022 Tom Yuncken Australian Young Construction Lawyer Award. Nominations close 4.00pm AWST, Friday 7 October 2022.

For more information about the award, visit the Law Council website.