This Bills Digest replaces a preliminary Bills Digest which was published on 24 March 2023.

Key points

• The Inspector-General of Aged Care Bill 2023 establishes an Inspector-General of Aged Care and Office, with a function to monitor, investigate and report to the Minister and Parliament on the Commonwealth’s administration of the aged care system. This includes independent reviews to identify and investigate systemic issues and making recommendations to the Commonwealth for improvement.
• This role is one of seven institutions that the Royal Commission into Aged Care Quality and Safety recommended to improve the system governance of aged care, with responsibility for the accountability and investigatory elements, that the Commissioners considered necessary to achieving their vision of a system that supports people to live well into their old age.
• The Inspector-General of Aged Care will also be required to undertake at least 2 reviews of the Commonwealth’s implementation of the recommendations of the Royal Commission into Aged Care Quality and Safety.
• The Inspector-General will have coercive information gathering powers, including powers to enter premises and compel a person to provide information or documents, or to answer questions.
• However, the Inspector-General is not intended to have a regulatory or enforcement role and therefore will not have search and seizure powers under the Regulatory Powers (Standard Provisions) Act 2014.
• Stakeholders criticised the Exposure Draft of the Bill due to its lack of reference to human rights, a fundamental component of the Royal Commission’s vision for a new aged care system. The Bill introduced to the Parliament does not include reference to the rights of people receiving aged care or requirement(s) for the Inspector-General to actively participate or engage in human rights reviews or international procedures or mechanisms.
• The Royal Commission recommended that the Inspector-General have responsibility for dealing with complaints about the system governor, the quality regulator, the prudential regulator and the pricing authority. The proposed functions of the Inspector-General in the Bill do not include this responsibility.

Introductory Info

Date introduced: 22 March 2023
House: House of Representatives
Portfolio: Health and Aged Care
Commencement: Inspector-General of Aged Care Bill 2023: On 1 July 2023 or, if Royal Assent is received on this day or after it, the earlier of a date to be fixed by Proclamation or 6 months after Royal Assent.
Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill 2023: The same day as the Inspector-General of Aged Care Bill 2023 commences.

Purpose and structure of the Bills

The purpose of the Inspector-General of Aged Care Bill 2023 (the IGAC Bill) is to:

• establish the Office of the Inspector-General of Aged Care and provide for the appointment of the Inspector-General of Aged Care (the Inspector-General), including its functions, powers and duties
• set out the process for the Inspector-General to conduct reviews on the Commonwealth’s administration of the aged care system and report to the Minister and the Parliament
• provide the Inspector-General with relevant information gathering and enforcement powers.

To achieve this, the IGAC Bill has 6 Parts, with this Bills Digest focusing on:

• Part 2 – establishment, functions and powers of the Inspector-General
• Part 3 – administrative provisions for appointing the Inspector-General and providing for the staff
• Part 4 – information management provisions, including information-gathering powers, protections for disclosing information to the Inspector-General and circumstances where information may be disclosed
• Part 5 – enforcement of civil penalty provisions by reference to the Regulatory Powers (Standard Provisions) Act 2014.

The purpose of the Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill 2023 (the IGAC Consequential Bill) is to:

• amend the following Acts to recognise the Inspector-General:
  • Aged Care Act 1997
  • Aged Care Quality and Safety Commission Act 2018
  • National Anti-Corruption Commission Act 2022
• provide for application, saving and transitional arrangements.

Background

Royal Commission – system governance

As part of its terms of reference, the Royal Commission into Aged Care Quality and Safety (Royal Commission) was asked to inquire into the causes of any systematic failures in the quality and safety of the aged care system.[1] It identified a range of problems, with a core issue being that successive Australian Governments have been overly reliant on the assumption that the aged care system can be left to operate as an ordinary market without the need for active systems governance.[2]

Among the system governance issues it identified were:

• an absence of leadership and governance at a system level
• inattention to market structure, evolution and local conditions
• piecemeal approach to reforms
• a reactive model of care
• ineffective regulation
• a lack of transparency in the system.[3]

The Royal Commission reflected that the COVID-19 pandemic illustrated the crisis point that the aged care system has reached, highlighting the weaknesses and shortcomings, in particular ‘the lack of planning and the reactive nature of governance’.[4] The Commissioners identified system governance reform to be critical to achieving their vision for aged care, identifying the need for the following institutions:

• systems governor
• quality and safety regulator
• independent standard setting body
• independent pricing authority
• accountability and investigatory body
• professional worker registration body
• aged care data manager.[5]

The 2 Commissioners differed on the proposed form that most of these institutions should take (see Figure 1), with Commissioner Pagone recommending greater independence from the Government (Independent Commission model) and, while supporting elements of enhanced independence, Commissioner Briggs recommending reforming some of the existing institutions in order to deliver the reforms more quickly (Government Leadership model). Between them, the Commissioners made 8 recommendations (Recommendations 5–12).

Figure 1     Proposed governance models for the new aged care system

Source: Royal Commission, Final Report: Care, Dignity and Respect – Volume 3A: the new system, 4.

However, the Commissioners made a joint recommendation for the establishment of an Inspector-General of Aged Care (Figure 2).

Figure 2     Royal Commission’s recommendation for an Inspector-General of Aged Care

Source: Royal Commission, Final Report: Volume 3A, 80–81.

The Government’s response

The previous Government supported a Government-led governance model and accepted Recommendation 12, stating:

An Inspector-General of Aged Care will be established to provide independent oversight of the aged care system. The primary functions will be to identify and investigate systemic issues in the provision or regulation of aged care, to publish reports of its findings, and to make recommendations.[6]

Alongside a Council of Elders and a National Aged Care Advisory Council, the 2021–22 Federal Budget provided $21.1 million over 4 years to establish the 3 entities.[7] In the 2021–22 Mid-Year Economic and Fiscal Outlook, the Government identified $8.8 million over 2 years (from 2021–22) to appoint an interim Inspector-General from early 2022.[8]

Shortly afterwards, and twelve months after the Royal Commission provided its final report, the Government released an update of its response to the Commission’s recommendations. In response to Recommendation 12, it noted:

The Government accepted this recommendation and, in MYEFO 2021-22, committed $7.8 million over two years to support the establishment of the Inspector-General of Aged Care.

The Department established an Inspector-General of Aged Care Taskforce, which commenced activities in January 2022.

It is anticipated that an interim Inspector-General will be in place in the first half of 2022.

As envisaged by the Royal Commission, this interim appointment would continue until the new Aged Care Act takes effect, and a statutory Inspector-General role with it.[9]

In the October 2022–23 Federal Budget, the Government provided $38.7 million over 4 years to establish the Inspector-General and the Office of the Inspector-General as a statutory agency.[10]

Interim Inspector-General

On 13 December 2022, the Minister for Aged Care announced the appointment of Ian Yates AM as the Interim Inspector-General of Aged Care. Mr Yates commenced in the role on 30 January 2023 and is anticipated to undertake a range of functions as the Interim Inspector-General, including:

• identifying priorities for the Inspector-General
• considering opportunities to report to Parliament, including on the implementation of the Royal Commission’s recommendations.

Exposure Draft consultation

On 13 December 2022, the Department of Health and Aged Care invited feedback on the Inspector-General of Aged Care Bill 2022 Exposure Draft – this consultation period closed on the 27 January 2023.

While the Department has not released copies of the submissions or provided an overview of the feedback it received, some stakeholders have released their submissions independently.[11] Several stakeholders raised concerns about the lack of reference to human rights in the draft Bill, with observations and recommendations including:

• there has been an omission of any role or function for the Inspector-General to protect and/or promote the human rights of people accessing aged care[12]
• strengthening the Bill by mandating that the Inspector-General contribute to relevant international human rights procedures and/or mechanisms[13]
• require the Inspector-General to participate in any human rights review of people accessing aged care as may be undertaken by the Australian Human Rights Commission[14]
• require the Inspector-General to address human rights aspects of the aged care system.[15]

In addition, stakeholders raised concerns with the proposed scope of areas the Inspector-General could investigate, with some suggesting:

• the Inspector-General’s investigations of systemic issues and topics that affect the Government’s funding, regulation, administration or delivery of aged care should be as broad as possible[16]
• the Inspector-General should oversee the review and reformulation of the Aged Care Quality Standards, with support from experienced independent reviews[17]
• the Inspector-General should be able to identify and make recommendations around the function of the aged care laws and funding agreements and how these contribute to the provision of equitable, effective, efficient, sustainable, safe and quality care that is in both the long-term interest of older people and the community as a whole.[18]

Other concerns and suggestions that were identified include:

• the need for an independent statutory review of the operation, effectiveness and/or impact of the Inspector-General to be held at a defined time after it is established[19]
• additional requirements for the Government to publicly report on its response to the Inspector‑General’s reports and recommendations[20]
• a requirement that compels the Government to act on the recommendations of the Inspector‑General[21]
• enhanced clarity on how the Inspector-General will interact with the Aged Care Quality and Safety Commission and/or the (anticipated) Aged Care Complaints Commissioner[22]
• the need for amended and new aged care laws, regulations and funding agreements to be based on the principles of good governance, which would strengthen the effectiveness of the Inspector-General role.[23]

Committee consideration

Senate Community Affairs Legislation Committee

The Bills have been referred to the Senate Community Affairs Legislation Committee for inquiry and report by 28 April 2023. Details of the inquiry are at the inquiry webpage.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (the Committee) raised a number of concerns about provisions contained in the IGAC Bill.[24] Further information on these provisions is set out at the Key Provisions section of this digest.

Protection from civil liability

The Committee raised concerns regarding the exclusions from civil liability contained in the IGAC Bill.

Clause 58 of the Bill provides that if a person discloses information in accordance with the requirements set out in clause 57, then that person is not subject to any civil, criminal or administrative liability, or subject to a contractual or other remedy.

The Committee stated:

The provision therefore removes any common law right to bring an action to enforce legal rights, unless it can be demonstrated that the person knowingly made a false or misleading statement. The committee expects that if a bill seeks to provide immunity from civil liability this should be soundly justified.[25]

The Committee sought advice from the Minister as to why it is necessary and appropriate to provide civil immunity in these situations.[26]

Evidential burden of proof

The IGAC Bill provides that in order to rely on the exceptions set out in subclause 23(2) (disclosure of a draft report or its components) or clause 64 (authorisation of the disclosure of information by an entrusted person) the defendant bears the evidential burden of proof.[27] The IGAC Bill also provides that if a person wishes to rely on the protections set out in clause 58 of the Bill (discussed above) then that person bears the evidential burden of proof.

In its report, the Committee noted that 'it is ordinarily the duty of the prosecution to prove all elements of an offence’ and expressed concerns regarding this ‘reversal’ of the evidential burden.[28] The Committee requested the Minister’s advice as to why the Bill required the defendant to bear the evidential burden of proof in these circumstances.[29]

Coercive powers

Clause 50 of the IGAC Bill allows an authorised official to enter certain premises for the purpose of performing the Inspector-General's monitoring, investigation and reporting functions under paragraphs 10(1)(a) to (d).

As noted by the Committee:

Officials entering premises without consent should also generally be either police officers, or officers of another kind of investigatory body which has established clear guidelines on the appropriate conduct of an investigation. A framework allowing Commonwealth officials to enter premises either with consent or with a warrant is set out in the Regulatory Powers (Standard Provisions) Act 2014. However, that framework has not been applied in this case.[30]

The Committee is of the view that 'any departure from this default position should be comprehensively justified within the bill's explanatory materials’,[31] and that it is ‘unclear to the committee why the standard protections set out within the Regulatory Powers (Standard Provisions) Act 2014 are not required in the context of investigations taking place in non-Commonwealth premises’.[32]

The Committee has therefore requested the Minister’s advice ‘as to why it is necessary and appropriate to provide a coercive power to enter non-Commonwealth premises without also providing that the framework set out at Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 applies’.[33]

At the time of writing, the Minister’s response had not been published by the Committee.

Financial implications

The Explanatory Memorandum notes the October 2022–23 Budget commitment of $38.7 million over 4 years from 2022–23 to establish the Inspector-General of Aged Care.[34]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.

The Government considers that the Bills are compatible, noting that ‘While the Bills limit certain human rights, these rights are limited in pursuit of the permissible legitimate objectives, and in a way that is reasonable, necessary and proportionate in the particular circumstances to achieving that objective’.[35]

Parliamentary Joint Committee on Human Rights

The Committee had not reported on the Bills at the time of writing.

Key issues and provisions

Objects and functions of the Inspector-General

Clause 3 of the IGAC Bill identifies 3 overarching objects:

• the establishment of an independent Inspector-General to monitor, investigate and report on the Commonwealth’s administration of the aged care system. This will include undertaking independent reviews that identify systemic issues and make recommendations for improvement.
• the provision of oversight of the Commonwealth’s administration of the complaints management process in the aged care system
• the establishment of a framework for the Inspector-General to publicly report to the Minister and the Parliament on the Commonwealth’s administration of the aged care system.

Clause 10 lists the proposed functions of the Inspector-General, with subclause 10(1) identifying that the Inspector-General will:

• paragraph 10(1)(a): monitor, investigate and report to the Minister and Parliament on:
  • the exercise of powers and the performance of function and duties under an aged care law[36]
  • the Commonwealth’s administration of an aged care law or an aged care funding agreement[37]
  • the operation of an aged care law
  • the performance of obligations and the exercise of rights by the Commonwealth under an aged care funding agreement
• paragraph 10(1)(b): monitor, investigate and report to the Minister and Parliament on systemic issues identified from the above activities
• paragraph 10(1)(c): monitor, investigate and report to the Minister and Parliament on any systems that the Commonwealth establishes to administer an aged care law or aged care funding agreement
• paragraph 10(1)(d): monitor, investigate and report to the Minister and Parliament on the implementation of the Royal Commission’s recommendations
• paragraph 10(1)(e): any additional functions conferred on it by the proposed IGAC Act or the regulations
• paragraph 10(1)(f): anything incidental to, or conducive to, the performance of these functions.

In addition, the Inspector-General will have the power to do ‘all things necessary or convenient’ for the performance of its functions (subclause 10(3)).

As noted in the Explanatory Memorandum to the Bill, ‘The Inspector-General’s focus is on the Commonwealth’s role in the aged care system, and systemic issues within it’.[38] The Inspector-General will not be permitted to use its power to investigate an issue that may have arisen with a single exercise of power or performance of function or duty made under an aged care law (subclause 10(2)).

The Inspector-General is not intended to have a regulatory or enforcement role.[39] Its function will sit alongside of, rather than duplicating or taking over, any powers or function(s) of the quality regulator (Aged Care Quality and Safety Commission), the system governor and prudential regulator (Department of Health and Aged Care) and/or the health practitioner regulator (Australian Health Practitioner Regulation Agency/ National Boards).

In contrast to clause 3 which ‘specifically references complaints management to highlight its importance to the effective functioning of the Commonwealth’s administration of aged care’,[40] clause 10 does not confer a specific responsibility on the Inspector-General for dealing with complaints.

As noted in the Royal Commission’s final report:

Complaints are a key source of information about systemic problems… If a systemic oversight role is conferred without any responsibilities for complaint-handling, there is a risk that the oversight body will never develop the understanding it needs to identify systemic issues. Likewise, if a complaints function is conferred without a systemic oversight function, there is a risk that attention will only ever be given to individual problems, without ever leading to systemic changes. We recognise, however, that the Inspector-General should maintain a focus on systemic issues. That means that it would be inappropriate for the Inspector-General to be given primary responsibility for administering the scheme for handling aged care complaints.

The appropriate balance is that the Quality Regulator should conduct the complaints scheme, and that any person who is dissatisfied with the way their complaint has been handled by that body, or considers the complaint otherwise warrants the attention of the Inspector-General, may refer the matter to the Inspector-General.[41]

However, the Government has chosen to adopt a different model to that proposed by the Royal Commission which:

… maintains the independence of the Inspector-General by keeping them at arm’s length from the bodies and activities which they oversee. In practice, this will see the Inspector-General maintain oversight of the complaints management processes across the aged care system to ensure that they provide a fair and transparent means of resolving concerns, rather than having an active role in considering individual complaints.[42]

In their submissions on the draft IGAC Bill some stakeholders sought improved clarity/made recommendations on the objects (clause 3) and functions of the Inspector-General (clause 10), including:

• clarity on what the ‘aged care system’ specifically refers to, especially given this term is not used widely in the IGAC Bill[43]
• recommending that the power to undertake in-depth reviews should be as broad as possible and include:
  • the interface between government regulation and administration that can impact access to, and the delivery of, aged care
  • barriers to the rights, dignity, choice and control of older people and which may include health services and guardianship tribunals.[44]

Office of the Inspector-General

Clause 12 will establish the Office of the Inspector-General, which will be a listed entity under the Public Governance, Performance and Accountability Act 2013, with the Inspector-General being the accountable authority. The following persons will be considered officials of the Office:

• the Inspector-General
• the staff of the Office
• persons that assist the Inspector-General, as identified in clause 41
  • this may be an officer or employee of the Commonwealth; or a state or territory government or state government authority
• consultants that are engaged under clause 42.

The Office itself will consist of the Inspector-General and the staff of the Office (clause 13).

Reviews by the Inspector-General

Clause 15 will require the Inspector-General to prepare a work plan for each financial year and they must consult with the Minister in preparing that plan. The finalised plan will need to be publicly available on the Inspector-General’s website and will not be a legislative instrument.

Clause 17 identifies 3 arrangements that may result in a review being undertaken:

• a review that is initiated by the Inspector-General
• a directed review from the Minister
• a requested review from the Secretary of the Department or a Minister administering an aged care law.

The Inspector-General may invite submissions to a review from the general public or a particular person or body and will have the discretion to determine how those submissions are made (clause 19).

Clauses 21–26 provide for the framework for preparing, finalising and publishing review reports and includes:

• that a draft report must be prepared, which must include preliminary findings, a summary of the evidence and other material that have informed the findings, and any proposed recommendations (subclause 21(2))
• the unauthorised disclosure of a draft report or its components is an offence with a maximum penalty of 2 years imprisonment, 120 penalty units or both (subclause 23(1))[45]
• the Inspector-General may require any specified entity, official or other person identified in the recommendations to take certain actions to respond to the recommendation within a specified timeframe (which must be at least 28 days). The response will need to be in writing and identify whether the recommendation has been accepted, any proposed actions to implement the recommendation, and/or why the recommendation was not accepted (clause 24)
• as soon as practicable, the Inspector-General will need to provide a final report:
  • to the Minister
  • any government entity, person or government official who the review recommended to take certain action
  • anyone that the Inspector-General provided a copy of the draft review report (subclause 25(1)).
• the Minister will be required to table the final review report in each House within 15 sitting days of that House after having received the report (subclause 25(2))
• the Inspector-General will be required to publish a copy of the report on its website after the report is given to the Minister (subclause 25(3)).

Evidence of misconduct

Under clause 27, if the Inspector-General thinks that there is sufficient evidence that a person who is or was an official of the Commonwealth has engaged in misconduct, the Inspector-General will be required to report this evidence to:

• in instances when the person is or was the accountable authority, to the responsible Minister
• in all other instances, to the accountable authority of the Commonwealth entity.

Implementation of the Royal Commission recommendations

Division 4 of Part 2 outlines the other functions and powers of the Inspector-General.

While paragraph 10(1)(d) will enable the Inspector-General to review the Commonwealth’s implementation of the Royal Commission recommendations, clause 28 will require the Inspector-General to undertake 2 reviews of the Commonwealth’s implementation of the Royal Commission’s recommendations, assessing the measures and actions taken and their effectiveness. The first review will need to be given to the Minister by 1 March 2026 and the second review by the 1 March 2031. The Minister will need to table the review reports in each House within 15 sitting days and the Inspector-General will need to publish a copy of the reports on its website.

It does not appear that the provisions for reviews conducted under clause 17 would apply to the reviews under clause 28. This would mean that a number of the requirements would not automatically apply to reviews under clause 28, including:

• the ability of the Inspector-General to invite submissions (clause 19)
• the requirement that the Inspector-General prepare a draft report and provide reasonable opportunity for comment by the Aged Care Quality and Safety Commissioner and/or the Secretary, as relevant (clause 21)
• the Inspector-General’s power to require a response of the relevant entities/ individuals to its recommendations (subclause 24(3)).

However, there is nothing that prevents the Inspector-General from following these processes in conducting a review under clause 28. 

Royal Commission’s recommendations

In addition to recommending evaluations 5 and 10 years after the Final Report was tabled, the Royal Commission recommended the Inspector-General report to the Minister and directly to the Parliament at least every six months on the implementation of the Royal Commission’s recommendations.[46]

The independence of the Inspector-General

Clause 11 of the IGAC Bill outlines the independence of the Inspector-General and notes that while it is subject to the proposed IGAC Act and other Commonwealth laws, the Inspector-General will have complete discretion in the performance of its functions and exercise of powers and will not be subject to direction by any person in relation its performance or the exercise of its functions or powers.

However, as noted in subclause 11(1), under subclause 17(2) the Minister has the power to direct the Inspector-General to conduct reviews into particular matters relating to the functions of the Inspector-General referred to in paragraphs 10(1)(a) – (d). The Secretary or a Minister administering an aged care law may also request a review to be undertaken in relation to these functions, but the Inspector-General is not required to comply with these requests (subclauses 17(7) and (8)).

Subclause 11(2) specifies areas that the Inspector-General will not need to take direction on, which includes the priorities in a work plan, a review’s terms of reference and the content of a report. Noting several related clauses:

• Subclause 21(3) will require the Inspector-General to provide a reasonable opportunity for the following to comment on the draft report:
  • if it relates to the administration of the Aged Care Quality and Safety Act 2018, the Aged Care Quality and Safety Commissioner
  • otherwise, the Secretary.
• Subclause 22(1) will require the Inspector-General to give certain persons an opportunity to respond before information that is critical of a government entity, a government official or any other person, is included in a draft review report.
• Subclause 24(2) will require the Inspector-General to consider any comments made on the draft review report in preparing the final review report.
• Clause 26 will require certain material to be excluded from a draft review report and final report, including:
  • information the Inspector-General considers sensitive
  • information given to the Inspector-General for the review that the giver has requested not be included in the report, and that the Inspector-General has agreed to.

Administration arrangements

Part 3 of the IGAC Bill outlines the administrative provisions for the appointment of the Inspector-General and its staff, persons assisting and consultants. The Inspector-General will be appointed by the Governor-General on a full or part-time basis and may hold office for up to a total of 10 years (clauses 31 and 32). The Minister may appoint an Acting Inspector-General (clause 33).

Information management

Part 4 of the IGAC Bill will provide:

• the Inspector-General with specific information-gathering powers (Division 2)
• protections for the disclosure of particular information to the Inspector-General (Division 3)
• when protected information may be disclosed (Division 4).

Information-gathering powers

The IGAC Bill will enable the Inspector-General to use information-gathering powers to obtain relevant information to undertake its functions, as identified in paragraphs 10(1)(a)–(d), and this may be through a range of means, including access to documents and things (for example, electronic data), conducting interviews and access to premises.

Clause 44 allows the Inspector-General to give a notice to a person requiring them to provide information, a document or thing, or to appear before an official of the Office of the Inspector-General to answer questions, if the Inspector-General has reason to believe that the person has information that is relevant to the functions at paragraphs 10(1)(a)–(d). The Inspector-General may require a person who is answering questions to do so under oath or affirmation.

Under clause 45, the Bill provides arrangements for when information must be given in private:

• when information would normally be covered by legal professional privilege (clause 52)
  • For example, legal advice given to the Minister
• when providing the requested information would normally breach a secrecy of information provision (clause 53)
• when the Inspector-General is satisfied that the information is sensitive information.

Clause 51 of the Bill provides that an individual is not excused from providing information, documentation or a thing on the basis that giving that information etc. may incriminate them in relation to an offence.

In carrying out the Inspector-General’s functions, an authorised official[47] may access the premises of:

• a Commonwealth entity
• a body established by or under a Commonwealth law
• a body established by the Governor-General
• an incorporated company in which the Commonwealth has a controlling interest (subclause 50(2)).

In addition, the Inspector-General may certify that it is necessary to access a non-Government premises to perform their functions (paragraph 50(1)(b)), for example, an approved provider’s premises. The official will be entitled to full and free access at all reasonable times to any document or other property and may make copies and take extracts from any document, which may be removed from the premises for this purpose (subclause 50(4)).

If a person contravenes a requirement to provide information/produce the requested item(s)/provide access to premises, they will have committed an offence (with a maximum penalty of 30 penalty units or 6 months imprisonment or both) or be liable for a civil penalty of 100 penalty units (clauses 44(7)-(8) and 50(8)-(9)).[48] In addition, if a person provides false or misleading information or documentation, they are liable for civil penalties of up to 100 penalty units (clauses 46 and 47).

Disclosure of information protections

In some circumstances, a person who discloses information may qualify for protection of their identity, which would need to be agreed to in writing by the Inspector-General prior to the disclosure (clause 54).

Clause 55 prohibits the unauthorised disclosure of identifying information about someone who has made a disclosure that qualifies for protection under clause 54. It also provides for circumstances when a person may disclose information about the discloser that may lead to their identification, such as providing information to the Australian Federal Police. A person who makes an unauthorised disclosure will have committed an offence (with a maximum penalty of 30 penalty units or 6 months imprisonment or both) or be liable for a maximum civil penalty of 100 penalty units (subclauses 55(3)-(4)).

Clause 56 provides protection from victimisation and enables civil penalties to be imposed in instances when a person victimises another person because they suspect or believe the second person has, or intends to, provide information to the Inspector-General. This clause identifies 2 types of victimisation: conduct that does cause detriment to a person; and threats to cause detriment to a person, with maximum civil penalties of 500 penalty units applying to both types of conduct. Subclause 56(6) provides an exception for ‘reasonable administrative action’ taken to protect the person from detriment. The Explanatory Memorandum provides an example of where a person has disclosed information about their immediate work area, and they are transferred to another work area to avoid potential detriment.[49]

Clauses 57–62 provide immunities to people who provide the Inspector-General with certain information or assistance to support the Inspector-General in carrying out its functions and includes, where the disclosure qualifies for protection:

• the person will not be subject to civil, criminal or administrative liability (including disciplinary action) for making the disclosure
• no contractual or other remedy may be enforced due to the disclosure.

Secrecy of information

Clause 5 defines ‘protected information’ as:

• personal information within the meaning of the Privacy Act 1988 
• information that relates to the affairs of an approved aged care provider or a party to an aged care funding agreement (other than the Commonwealth)
• information the disclosure of which would or could reasonably be expected to prejudice the effective working of a Commonwealth entity in the exercise of the entity’s powers or performance of the entity’s functions or duties under an aged care law.

Clause 63 provides that unauthorised use or disclosure of protected information by person who is or was an entrusted person is an offence punishable by up to two years imprisonment or 120 penalty units or both.[50] Clause 64 provides authorisation for an entrusted person to use or disclose protected information in specified circumstances, such as:

• performing their duty or exercising their power under the legislation (subclause 64(1))
• disclosing the information to the person to whom the information relates (subclause 64(6))
• disclosing the information to prevent serious threat to the safety, health or wellbeing of a person receiving aged care (subclause 64(12)).

Compliance and enforcement

Part 5 of the IGAC Bill allows for civil penalty orders to be sought under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) from a relevant court in relation to contraventions of civil penalty orders.

Other provisions

Clause 72 of the IGAC Bill provides that the Inspector-General may delegate their functions, powers or duties under the IGAC Act or regulations, or under the relevant parts of the Regulatory Powers Act, to an official of the Office who is, or is acting as an Executive Level 2 equivalent or higher.

However, the Inspector-General, cannot delegate the following functions:

• preparation of an annual work plan (clause 15)
• variation of an annual work plan (clause 16)
• conducting a review (clause 17)
• preparing a final report (subclause 24(1))
• requiring an entity or person to respond to recommendations (subclause 24(3))
• providing the Minister and others (as required) a copy of the final review report (subclause 25(1))
• publishing the final review report (subclause 25(3))
• providing the Minister with and publishing a report on the implementation of the Royal Commission’s recommendations (subclause 28(3))
• providing the Minister and others (as required) and publishing any extra reports (subclause 29(2))
• certifying that it is necessary to enter non-Government premises (subparagraph 50(1)(b)(i))
• preparing an annual report (clause 70).

In addition, the Inspector-General may only delegate the following functions, powers or duty to Senior Executive Service (SES) employees (including acting SES):

• notice of a review (clause 18)
• authorising an official of the Office to exercise the power to enter and remain on premises (subclause 50(7)(b)).

Clause 73 provides for the Governor-General to make regulations that are required or permitted by the IGAC Bill, or necessary or convenient to carry out or give effect to the Bill.

The IGAC Consequential Bill

Item 3 of Schedule 2 of the IGAC Consequential Bill will enable the Inspector-General to conduct a review under clause 17 of the IGAC Bill in relation to paragraphs 10(1)(a) to (d) that may relate to matters that occurred before the Bill commences.

Item 4 of Schedule 2 provides for the Minister to make rules required or permitted by, or necessary or convenient to give effect to, the IGAC Consequential Bill, including transitional rules for the enactment of the IGAC Consequential Bill or the IGAC Bill.