The Royal Commission's recommendations were an indictment on the policies of successive governments, and the underfunding of an entire sector, with devastating impacts for workers, providers, and most importantly older Australians and their families.
In responding to the Royal Commission's recommendations, there was an opportunity for government to make important reforms, and provide the funding that can improve the quality of care for millions of Australians. Sadly, the response evidenced by this Bill shows a major piece of legislation, with key details still undermined, rushed through a short inquiry process without adequate time for consultation and analysis.
The Australian Greens share the fundamental concerns expressed by many to this inquiry, about both the Australian Government's response to the Royal Commission more broadly, the lack of consultation and rushed process in relation to this Bill, and the fundamental problems with key provisions in the legislation.
Aged care reform and the need for greater consultation
The Australian Greens share the concerns expressed to this Committee by a number of witnesses about the lack of consultation and rushed approach in the Government's response to the Royal Commission. As the Australian Aged Care Collaboration noted in their submission:
… we would like to express our concern, and the concern of our Members, about the limited consultation with the sector on the development of this legislation – many of our concerns could have been addressed through the publication of an exposure draft to provide an opportunity for the sector to comment prior to the introduction of the Bill to Parliament.
Our concerns about process and consultation also apply to the broader reform agenda. In particular, we are yet to see a detailed roadmap for consultation on the various reforms that have been proposed, and the proposed governance mechanisms for the reform agenda have not yet been established.
These broader process concerns are compounded in the extremely short time frame for the inquiry, particularly given the scope of issues covered in the legislation. As Aged and Disability Advocacy Australia noted:
Adoption of a piecemeal approach to legislative reform is inefficient and will not achieve the outcomes or fundamental reforms identified by the Royal Commission. It does not allow the reader the opportunity to consider the proposed changes in conjunction with human-rights centred principles set out in the legislation. This issue is compounded by the limited period of public consultation permitted by the Committee to receive feedback for this inquiry.
Similarly, while noting the importance of progressing the Royal Commission's recommendations, the Law Council of Australia noted the extremely short timeframes given the complexity of the legislation:
The Law Council welcomes the Australian Government's efforts to implement the Royal Commission's recommendations. However, it also raises concerns about the limited timeframe that Parliament has allowed for consultation on the Bill given the significance of the proposed reforms. The Law Council's review has been similarly curtailed.
The current rushed process is reflected in the addition of a new Schedule in the House of Representatives, after the introduction of the Bill, when the inquiry had already started accepting submissions.
Significant components in delegated legislation
As outlined below, a significant number of frameworks and crucial components of this legislation will be set out in delegated legislation. This reflects a concerning pattern, with an increasing delegation of major policy issues over time. As the Centre for Public Integrity noted:
Through the delegation of law-making powers, policy decisions that affect the rights and obligations of individuals, business and industry are increasingly being made by the Executive without adequate parliamentary oversight or other forms of accountability.
The Australian Greens also share the concerns expressed by the Scrutiny of Bills Committee (Digest 16 of 2021) at the broad delegation of legislative powers in Schedule 1.
Australian National Aged Care Classification (AN-ACC)
A number of submissions noted their support for the transition to the AN‑ACC, but concerns over the transition process. As the Australian Aged Care Collaboration stated in their submission:
the AN-ACC shadow assessment outcomes are not being made available to people who have been assessed or their providers. Providers need this information as soon as possible to plan and budget.
Additionally, as Occupational Therapy Australia and others noted in their submission, while the transition to the AN-ACC tool is welcome, '[i]t is imperative that the model implemented allows for enhanced allied health supports.'
Screening of aged care workers and governing persons
A number of submissions noted concerns about the changes proposed in Schedule 2. As the Law Council of Australia noted, the proposed approach will apply penalty units based on requirements which are not spelt out in primary legislation. The Law Council of Australia also echoed the concerns of the Scrutiny of Bills Committee, that the Minister's powers under proposed section 7A will not be disallowable.
A number of submissions also raised procedural concerns about the information contained in the proposed Screening Database. The Law Council of Australia stated:
While the stated purpose is for the Screening Database to contain up-to-date information, there is no requirement to delete information which is irrelevant to a screening application or wrong, or mechanism to enable an individual to challenge the information recorded on this basis. Related to this, there is no apparent mechanism by which a person can seek access to information held about them in the Register, including whether it records that an exclusion, suspension or revocation decision is in force. The Law Council recommends that consideration be given to mechanisms which enable individuals to seek access to such information and challenge it where it is incorrect. There may be undeserved reputational damage to individuals if a Screening Database was made too readily available with broad commentary permitted to exist unchecked, unamended or able to be challenged.
It further considers that there should be a positive requirement to remove decisions which are overturned on review, such as exclusion decisions, suspension decisions, or revocation decisions, from the Screening Database.
Similarly, the Health Services Union recommended that the Committee and Parliament should:
Delay passage of Schedule 2 until it can be tabled with full detail. Concerns regarding intergovernmental agreement, worker blacklisting, duplication and privacy must be addressed.
Code of Conduct
The rushed process and reliance on delegated legislation were also evident in relation to the proposed Code of Conduct. As the Scrutiny of Bills Committee digest notes, Schedule 3 contains significant matters in delegated legislation. This concern was also expressed by the Law Council of Australia:
The Law Council's general position is that significant matters, such as those dealing with substantive policy issues rather than matters that are purely technical or administrative in nature, should be included in primary legislation rather than delegated legislation. As such, it agrees with the Scrutiny of Bills Committee's view that Parliament should determine the features of the Code in primary legislation, rather than leaving this to the delegated legislation. While the Law Council recognises that the rules establishing the Code would be legislative instruments and subject to disallowance, it considers that this would provide for inadequate scrutiny given the volume of delegated legislation which is before Parliament annually. It also notes that non-disallowance can be a blunt instrument, which does not allow Parliament to easily address individual drafting aspects which raise concern.
The Australian Nursing and Midwifery Federation noted significant concerns about the proposed Code of Conduct:
The proposed penalty for a contravention of the Code of conduct is 250 penalty units which at present amounts to $55,500. The ANMF is extremely concerned that such significantly high penalties could be issued in circumstances where there is no clarity about how evidence will be considered and/or tested in relation to an alleged breach, no reference to the processes for establishing whether a breach has occurred, and in circumstances where the vast majority of individuals working in aged care are on such low wages. A full-time aged care worker with a Certificate III, being paid the Award wage will take home a base wage of approximately $47,000 per annum.
Providers also raised concerns about the proposed approach, with the Australian Aged Care Collaboration noting that while they supported the proposal, it required amendment:
The approach outlined in the bill unfortunately does little to advance the more fundamental issue for quality of care, which is the need to upskill and professionalise the personal care workforce.
For health care professionals, the code duplicates their existing professional obligations and associated disciplinary processes.
Disciplinary procedures for health professionals also provide much clearer processes for affording procedural fairness to a person accused of misconduct than would be afforded under the bill.
As it stands the bill creates serious risks for miscarriages of justice, particularly for front line employees with limited resources to defend themselves.
Echoing the concerns raised by a number of groups, the Health Services Union recommended that:
Passage of Schedule 3 must be delayed until such time that sector-wide consultations have concluded and the Senate has full details of the Code of Conduct.
Similarly, the Federation of Ethnic Communities' Councils of Australia recommended that:
Schedule 3., and other related schedules, are amended to adopt an alternative and less punitive approach of a care worker regulation scheme which embeds skills and training standards and ongoing professional development.
Restrictive practices
Schedule 9 was introduced as an amendment after the Bill had already been introduced, and referred to the Senate Community Affairs Legislation Committee. The Australian Greens share the concerns of the Law Council of Australia, that given the rushed processes, some issues may remain unresolved. Given the significance of providing immunity for those who authorise restrictive practices, the Australian Greens share the Law Council of Australia's concerns about the timing of this schedule:
The Law Council is concerned that this will give rise to outcomes where individuals without power under State and Territory law to authorise restrictive practices will nonetheless be empowered under the Quality Principles to authorise restrictive practices, including chemical and physical restraints. It is unclear what kinds of duties and obligations such individuals will be under in making such authorisations, outside of the broader requirements of the Aged Care Act and Quality of Care Principles.
It is further concerned that Schedule 9 has only recently been introduced, and has not been subject to appropriate consultation, given the nature of the subject matter, which has been of strong concern to the Royal Commission and many stakeholders.
It recommends that Schedule 9 should not be progressed until it, and the proposed amendments to be made to the Quality Principles under the proposed subsection 54-10(1A), have been subject to further detailed consultation amongst stakeholders.
Concluding remarks
The Australian Greens support the Government's intent, to improve the quality of aged care and implement key recommendations from the Royal Commission. However, the approach adopted in this Bill involves rushed legislation, with significant delegation and inadequate consultation. Further work is required to address the significant concerns raised through this extremely limited Committee process, and ensure that reforms provide genuine support to workers and providers, and ultimately older Australians.
Recommendation
The Australian Greens recommend that consideration of the Bill be delayed until the concerns raised through this inquiry have been sufficiently addressed, including the incorporation in the Bill of key measures that are currently proposed to be included in delegated legislation.
Senator Janet Rice
Deputy Chair