Chapter 2


Chapter 2

General views on the reforms and consultation

2.1        The Living Longer Living Better (LLLB) package of bills represents a significant step on a process of reform that has been underway for several years. The changes have been long-awaited, with many believing them overdue. There has been consultation with stakeholders throughout the process, and the programme supplied by the department is attached to this report as Appendix 3. The committee received evidence criticising the consultation. The criticism will be addressed in this chapter. The committee is aware that there will never be a perfect consultation mechanism and again, the issues raised in this enquiry must be noted by the department for future processes.

Aged care forms – general views

2.2        All stakeholders agreed with the need for change to the aged care system, with most supporting the overall model put forward by the Productivity Commission.[1] Service providers in particular appeared to prefer the Productivity Commission's blueprint to the government's partial adoption of that blueprint in the Living Longer Living Better package.

2.3        Consumer organisations were generally supportive of the reforms. COTA Australia supported the bills and asked that they be passed as soon as possible:

COTA is strongly urging multi-partisan support for the passage of the Bills so these important reforms can start on time on 1 July 2013. If these Bills do not pass in this session then aged care reform is at risk and older Australians will miss out on the benefits.[2]

COTA comes here to say in the strongest terms that the bills before the parliament should be passed this session. Living Longer Living Better from a consumer perspective has a number of extremely positive elements. It will bring more packaged care to support older people to remain living independently in their own home. It will bring a greater range of that care, as we have argued for over years, although it does not go as far as we would argue. It does introduce greater choice and control for older people through consumer directed care, for which all packages will be converted over time. We would like to go further than that in terms of our arguments and the Productivity Commission's arguments for entitlement, but this is a significant step in that direction and in fact perhaps one of the most underestimated steps in the reform process.[3]

2.4        The Consumer Health Forum stated 'CHF supports the introduction of the Living Longer Living Better aged care reform package and welcomes the development of the Bills'.[4] National Seniors Australia supported many elements of the package but were concerned about a number of issues, particularly whether there would continue to be shortfalls in funding and investment.[5] A number of groups commented only on specific aspects of the package, reflecting their constituencies, but were broadly supportive of the reforms. These included the National LGBTI Health Alliance[6] and the Young People in Nursing Homes Alliance[7] amongst others.[8] The Australian Blindness Forum considered:

The primary objectives of the announced reforms to facilitate greater community based, in home support, and greater individual choice in terms of service and service provider is long overdue.[9]

2.5        The Aged Care Guild, representing several of the major for-profit providers, supported the reform agenda (though they raised issues regarding investment in the sector):

The Guild supports the need for industry reform and broadly agrees with many aspects of the proposed legislative changes. It sees Living Longer Living Better (LLLB) as an important step of a much bigger reform journey.[10]

2.6        The Attendant Care Industry Association, the peak body for attendant care service providers, stated that it was:

strongly supportive of the LLLB reforms, especially the focus on providing more opportunity for support to be delivered to people in their own homes, enabling them to age in place and to provide many more alternatives to residential aged care.[11]

2.7        While noting some areas of the reforms still need to be finalised, Anglicare posited that the legislation should proceed:

It is our belief that we should go ahead and that there are some things that can be altered along the way. There seems to be quite a degree of agreement in the submissions that we have read around some of those corrections, qualifications, reviews and those kinds of areas. It is our view that there is enough right in this legislation to actually get this reform happening. It has been a long time coming and we have all been advocating for it for a long time. So it is our view that we should not hold this legislation up over these concerns.[12]

2.8        Other submitters such as Catholic Health Australia offered qualified support but argued that the proposed legislation fell short of the recommendations made by the Productivity Commission or the National Aged Care Alliance:

Catholic Health Australia supports these Bills. They are the next step in progressive reform to support the future sustainability and quality of aged care services. ... Catholic Health Australia acknowledges that the thrust of the Government’s response to the Productivity Commission recommendations, as reflected in Living Longer Living Better package, works towards the creation of a system that fulfils the above policy aims, but remains concerned that not all of the Productivity Commission’s recommendations were adopted.[13]

2.9        Despite these reservations, Catholic Health Australia wanted to see the bills passed:

Our view is that it is very, very important that the legislation proceeds. It has been a hard won gain to get to where we are and we would hate to see it slip away.[14]

2.10      Catholic Health Australia's reservations were echoed by Kincare in their opening statement to the Committee:

We have been broadly supportive of the reforms and the principles behind them in the context that we believe that they are a step in the right direction. We were disappointed at the time that the reforms were announced that they did not go the distance that the Productivity Commission had recommended. We believe that a lot of the challenges that we are facing in the legislation, both in terms of transition and the basic regulation of the aged-care sector, would actually have been dealt with if we had moved towards a full entitlement based system in a way that the productivity commission had envisaged it.[15]

2.11      Some support for the bills was contingent on specific actions taking place to address information gaps in the reforms.[16] Leading Aged Services Australia (LASA) recommended:

Unless the Department of Health and Ageing (the Department) publishes:

(a) specific dates as to when the draft (or a consolidated) principles documents will be presented for consultation;

(b) a reasonable consultation period to facilitate appropriate and effective consultation; and

(c) a summary of the subject matters to be dealt with in the draft

prior to the publication of the Committee’s report, the Committee should not recommend that the Bill proceed during the life of this Parliament.[17]

2.12      The committee notes that this request by LASA was met in part by the department in its answers to questions on notice to the committee, though the answer did not specify what would be the consultation period for draft principles released in the week commencing 20 May 2013.

2.13      A few service providers opposed the bills unless there were significant changes, particularly concerning how funds would flow to the aged care sector:

I think the fundamentals of the PC report have been lost in the legislation: people have been silenced; people have not been given time to participate; a variety of ways have not been given for people to participate; entitlement has not been enabled; the concepts of enablement and wellbeing of older Australians are already being used as ways and excuses for reducing services to them; only a limited amount of new funding has been provided and is yet to appear, and that will undermine the success of the reform package as it is currently proposed.

In our view, unless we are given a longer time to debate this legislation, unless we are given much more detail about the principle and determination documents, we would like the legislation to be delayed or withdrawn.[18]

I am writing to request that far more information be provided on these bills before they are even considered by Parliament... As a small rural health provider I am alarmed by the actions taken by this Government. This started with funding... Then consider the Productivity Commission report, and as per usual the Government has cherry picked a few of the options without an integrated approach. One of the major points was the declaration that there would not be any bailouts for providers. Options were presented as to the future, which may be fine in cities, but are not realistic in small rural communities. There are not any provisions allowed for transition for the new model. Vertical integration and other models are quite simply not available in many rural communities... Quite simply, funding does not match the true cost of care in rural Australia.[19]

2.14      The department reported to the committee that the legislation and the process strikes a necessary balance between the wishes of different stakeholders:

I know there are some stakeholders who feel that the reforms do not go far enough and would like to push ahead further and faster. Conversely, others are feeling rushed and they would like more time to consider the changes.[20]

The consultation process

2.15      The department argued that 'the package was developed hand in glove with the sector and they continue to work incredibly closely with us on shaping the implementation.'[21] In brief, it was reported to the committee that:

[T]he consultation process has been comprehensive over the past 18 months with a particular emphasis on providing information and opportunities for feedback through a multitude of avenues such as face to face briefings, working group collaborations, public submissions, email, web blogs and more formal written correspondence.[22]

2.16      It was readily recognised that the consultation process is a complex undertaking:

One of the challenges we face is that when you are dealing with a complex change agenda, as we are—and I think I said this in my opening statement—there needs to be an effective way to reach those who are impacted. That is not only providers but also consumers. We have done what we can to reach to providers. We also need the peaks to be part of that reaching to providers because they are the ones whose members, obviously, have a lot of concerns.[23]

2.17      The department outlined the consultation process that was undertaken to help develop the LLLB reforms. It was reported by the department that following the release of the Productivity Commission (PC) report, Caring for Older Australians, the government worked with the National Aged Care Alliance (NACA) and established several key working groups to examine specific issues. The working groups considered: quality of care; workforce; wellness approach; financing, care and accommodation; assessment, choice and consumer-oriented care; and palliative care.[24] In addition to the NACA working groups, the government also relied on 12 advisory groups, the:

  • Aged Care Reform Implementation Council;
  • Aged Care Financing Authority;
  • Strategic Workforce Advisory Group;
  • Minister's Dementia Advisory Group;
  • Aged Care Funding Instrument Monitoring Group;
  • Aged Care Funding Instrument Technical Reference Group;
  • Dementia and Veterans' Supplement Working Group;
  • Aged and Community Care Officials;
  • Gateway Consultation Forum; the National Aboriginal and Torres Strait Islander Aged Care Reference Group;
  • Lesbian, Gay, Bisexual, Transgender, and Intersex Advisory Group; and
  • Culturally and Linguistically Diverse Advisory Group.[25]

The Aged Care Commissioner has also been involved in the development of the LLLB reforms.[26]

2.18      As well as consulting through the NACA working groups, the department also provided evidence of holding extensive sector/industry briefings, providing information including videos and answers to frequently asked questions via the LLLB website, and through seeking submissions and comments on papers and proposed legislation changes.[27] Furthermore the committee heard:

Stakeholders were able to provide written comments on the proposed changes during a four week period (21 November 2012 – 21 December 2012) with comments made publicly available on the Living Longer Living Better website, unless the author requested otherwise. The Department received 54 submissions from members of the public, peak bodies and approved providers in response to the published overview of legislative amendments. These submissions were used to inform drafting of the Bills and will also inform the development of delegated legislation and program arrangements.[28]

2.19      The department indicated that throughout the process it provided service providers, peak bodies and other interested organisations with regular email updates of upcoming briefings, opportunities to be involved in the consultation process, and updates on the reforms.[29]

Criticisms of the consultation process

2.20      Throughout the inquiry the committee regularly heard concerns about the consultation process that was undertaken by the Government in preparing the LLLB reforms. Although the consultation process appears to have been relatively comprehensive and thorough, there were a number of issues raised, particularly regarding the pace at which consultation was undertaken. Baptistcare commented that many of the concerns of industry may have been mitigated through a more sedate reform and consultation process:

I think that the current Living Longer Living Better package could have got greater traction if the time frame had been extended, if more information be made available, and the consultation process beyond NACA and beyond the peaks had been given full capacity and opportunities for participation, and then you would have been able to iron out a lot of these wrinkles.[30]

2.21      Edgarley Home Inc. similarly argued that more time was required for industry to understand the changes that were being made:

We spoke about consultation and getting information out. As an industry, we have been surviving on short timeframes. With the principles, which are obviously going to contain a whole heap of information, I believe that if we do not have six months of clear air to actually digest what is in those principles then it is grossly unfair to expect the industry to try to get its head around that within some of the short timeframes that we have been operating on.[31]

2.22      This point was echoed by the Australian Association of Social Workers (AASW) who contended that reforms of such scope require a longer period of integration to allow providers to prepare for upcoming changes:

We are concerned that with this major paradigm shift, which is starting with consumer directed places in home care in June, the guidelines were issued a few days ago. That is a six-week period for consultation, getting comments, reintegrating them into the guidelines and being ready to go in June. That is nowhere near enough time to make the kind of shift that is required in the sector.[32]

2.23      It was also noted that for peak bodies it can be difficult to respond to short time-frames due to the need to have all the members sign-off on an approach.[33]

2.24      Kincare noted that longer consultation periods may have been cheaper for some providers to engage with.[34] On the other hand Baptistcare argued that longer consultation periods mean that – even when flights and accommodation is refunded – the organisation still foregoes the work output of that individual for the consultation period, and typically it is a very senior or specialist person who is required for such engagements.[35]

2.25      The committee heard some providers express concerns that on-the-ground expertise was not being utilised or consulted with:

One of the things—I mentioned it earlier—is the lack of detail and lack of consultation with real providers on the ground, in saying, 'This is what we want to road test; this is what we want to do. How will it work in the real world?'[36]

2.26      The committee heard strong criticism of the consultation process from Baptistcare who argued that the government did not listen to feedback, and that there was an undue reliance on NACA:

But specifically from us in Baptistcare I think the consultation process on the reform package and on the draft legislation has not listened to feedback from providers outside of the National Aged Care Alliance and certainly comments from the WA providers and our peak body, which has had occasionally different views to NACA, the minister and the department, have been, in my personal experience, quite rudely dismissed and not been taken into consideration.[37]

2.27      In response to the concerns raised by Baptistcare, the department noted that Baptistcare had not submitted any comments to the department regarding the proposed legislative changes during the initial concentration period that commenced on 21 November 2012.[38]

Praise for consultation process

2.28      While the committee did hear a number of criticisms of the government and the department, there was also a significant amount of praise regarding the conduct and scope of the consultation process undertaken.

2.29      In relation to the consultation about the workforce compact, United Voice argued that the consultation process was sound:

I see the process that the minister went through as an absolute classic, proper, policy-making process. It started with lobbying by the various industry associations, the peak councils, about the serious problems with aged care. There was a reference to the Productivity Commission. We all went through a lengthy process of submitting to the Productivity Commission and, from our point of view, trying to get them to focus on the problem besetting the workforce in this sector. They came up with a report that we thought was very favourable to our way of thinking. They, unusually for a pretty neoliberal institution, really focused on the issue of wages, the way in which people were paid in this sector and the need to do something about that.

Notably, what happened then was an intense process of consultation with the sector. The minister and various other government officials went round the country talking to individual providers, talking to us, talking to our members, talking to the peak councils. We went through a process of trying to build a consensus around a reform agenda. As far as we are concerned we did participate in that process, sat down with employers, tried to agree on what were the fundamental problems besetting the sector and come up with agreed solutions. That is what we think has happened.[39]

2.30      National Seniors Australia put on record their praise for the Government's comprehensive  and inclusive consultation process:

We would like to thank the government for their efforts in ensuring that the voices of consumers, healthcare professionals and providers are heard through extensive consultations.[40]

2.31      While recognising that the government had, for the most part, done a good job, there was some concern regarding the publication of information and policies:

They have done a very good job in my view. I am a former public servant from way back. I have been in aged care since 1974, which is a long time. Originally I was a public servant in WA. My perspective is that, whilst the sessions were very well presented, they still got to many points where they were saying, 'The guidelines will be issued later.' We never got the full story. That was the problem for me.[41]

2.32      The department informed the committee that answers to questions are available on the LLLB website, and in a case where a presenter was not able to provide immediate answers to questions posed during an information session, answers would subsequently be provided on the LLLB website.[42]

Availability of the principles

2.33      The other major concern raised during the inquiry was that the delegated legislation that complements the bills was not available, and as such it was not possible to fully appreciate how the legislation would function. This, it was argued, was contributing to a sense of uncertainty in the sector.[43]

2.34      Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Parliament delegates to the Government limited power to make certain regulations under Acts. Delegated legislation is necessary and often justified by its facility for adjusting administrative arrangements without undue delay, its flexibility in matters likely to change regularly or frequently, and its adaptability for other matters such as those of technical detail. Once Parliament has by statute laid down the principles of a new law, the Government may by means of delegated legislation work out the application of the law in greater detail within those principles. Delegated legislation is required to be laid before each House, thereby becoming subject to parliamentary scrutiny and the Parliament’s ultimate power of veto.[44]

2.35      COTA noted that it is good procedural practice to have many things in subordinate legislation so that necessary amendments can be made with greater speed than is the case with primary legislation, and that the principles themselves are also subject to scrutiny:

We understand that the process of having principles is an established process in this and other areas, that you do not spell out everything in legislation, otherwise the providers would then be complaining that every time something needed to go up, or something, you had to change the act. As I said earlier, we are confident that the processes in which we are currently engaged do engage the sector in a way that I certainly have not seen in many years of involvement in this sector and they feed into what will be the principles. The principles, I do not need to remind you, are disallowable instruments and parliament gives them scrutiny. We and others would make our views known if we were not happy, probably well before they appeared but certainly when they appeared.[45]

2.36      The department informed the committee that most of the proposed 19 pieces of delegated legislation – the principles – are consequential:

We are amending 19 sets of principles, so each of those will have to be a separate amending instrument. The vast majority of those amendments are consequentials: if the bills are passed and there is a decision to move away from community care and towards home care then those would be consequential amendments to the principles and determinations.[46]

2.37      The committee heard at its public hearing in Canberra that four of the sets of principles will have 'more substantive issues in them'.[47] The principles in question are the:

  • Draft Accommodation Pricing Guidelines;
  • Home Care Packages Program Guidelines – Consultation Draft;
  • Dementia and Veterans' Supplement in Aged Care Consultation Paper; and
  • Drafted Aged Care Workforce Supplement Guideline.[48]

2.38      Although these principles were made available during the course of this inquiry, their release schedule did mean that stakeholders did not have the benefit of them when preparing their submissions to this inquiry. It was however noted by both Catholic Health Australia and COTA that they had a good idea, prior to their release, of what the principles would include.[49]

2.39      Given the extensive consultation that the department has undertaken in preparing the bills under consideration, it is to be expected that a similar level of diligence will be applied to the consultation in preparing and finalising the principles. UnitingCare Australia indicated that they were anticipating working with the government on the final shape of the principles:

The detail will come in the principles under the act. So we are looking forward to a vigorous policy debate with the government...We would anticipate being able to work with government on the development of those principles – that they would not be developed and presented to us in a completed fashion but that we would be able to input into the development, given the concerns we have got here about the operational detail that fall out of the legislative framework.[50]  

2.40      The committee also notes the undertakings given by the department, noted earlier in this chapter, regarding timetables for the release of draft delegated legislation.

Committee view

2.41      Based on the evidence provided to the committee, it appears that the consultation process undertaken by the department has been comprehensive and thorough.[51] However, the preferred duration of the consultation period varied from provider to provider, and evidently not all found the process suited to their needs. Given the very large scale of the reforms and the number of competing arguments, the committee considers that the department has made considerable efforts to ensure that all stakeholders have had the opportunity to comment and engage in the process.

2.42      It is important to recall that the bills have not been introduced without any prior processes involved in their preparation. On the contrary, the bills represent a stage in a process that has taken several years, and included consultation and discussions by the Productivity Commission, as well as the large number of government and aged care sector working groups.

2.43      The committee does accept that some of the consultation deadlines were short and meant that smaller providers may not have had the time they would have liked to prepare fulsome comments. The committee also understands that short time-lines make it harder for peak bodies to properly engage with member organisations.

2.44      For its part, this committee wishes to put on record its appreciation for the large number of organisations who took the time to provide written submissions and appear at the committee's public hearings in addition to their other contributions to the development of this important policy reform.

2.45      The committee understands that the LLLB reform package is a complex piece of legislative work and that it is standard practice for many details of legislation to be spelt out in delegated legislation. Delegated legislation provides a useful service to ensure that laws operate as was intended by the Parliament. This committee has a long standing concern about the process of consideration of legislation that has significant detail in delegated legislation, regulations, guidelines or principles, when they are not available during the enquiry process. As it did during the National Disability Insurance Scheme Bills inquiry, the committee will continue to raise this issue and reflect the evidence of many submitters about the need for access to the detail if review is to be effective. The department provided a schedule for the release for consultation of delegated legislation and the process of community consultation. This is attached as Appendix 4.

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