Australian Greens Additional Comments
1.1The Australian Greens welcome the Government's introduction of the Inspector‑General of Aged Care Bill 2023, as part of its work to implement the recommendations of the Royal Commission into Aged Care Quality and Safety.
1.2As set out in the Australian Greens' policy platform, the Australian Greens believe that:
the federal government must play a central role in the funding, regulation and support of high quality aged care services;
that older people, their carers and their families must have the right to choose from a range of appropriate, affordable and diverse care services designed in accordance with a human rights based approach that maintains and promotes dignity, independence and quality of life, and;
Australia's aged care system should be underpinned by transparency and accountability.
1.3That is why the Australian Greens want to see:
the establishment of independent accountability mechanisms to monitor aged care services and establish mandatory response timelines, and;
Australia to lead in the creation of a UN convention on the Rights of Older Persons.
1.4These principles inform our approach to this and other aged care legislation.
1.5We thank the organisations that have made submissions to this inquiry for their time and effort in analysing a complex and important piece of policy and legislation.
1.6The Australian Greens support the recommendation of the majority report that the bills be passed. However, there are a number of recommendations made in submissions to the Committee, for clear, concrete improvements to the bill, that we believe the Senate should adopt.
1.7A number of submissions made crucial points about the need for a human rights focus for the bill. As the Older Persons Advocacy Network (OPAN) said in their submission:
OPAN is dismayed at the omission from the Bill of any role or function for the Inspector‑General in protecting and promoting the human rights of older people accessing aged care services under the proposed new human rights‑based Aged Care Act. Royal Commission recommendations 1, 2, and 3 established that the foundations of a new aged care system were a new Act, specifying the rights of older people seeking and receiving aged care, with the purpose of securing those rights and specifying key rights related principles. In the context of the Inspector-General's responsibilities for oversighting the current Aged Care Act, an explicit focus on human rights is needed in this Bill.
The human rights of older people seeking and using aged care services should be at the centre of the Inspector-General's stronger focus on accountability. The Royal Commission final report outlined that the Inspector-General should have a broad scope to review "… systemic issues relating to the performance of providers and treatment of people who need care." A systemic human rights focus on the treatment of people who need care is absent from this draft Bill.[1]
1.8The Australian Greens support the recommendations from OPAN, Aged Rights Advocacy Service, Allied Health Professions Australia (AHPA), and LGBTIQ+Health Australia, for a greater human rights focus in the bill.
1.9That the Bill be amended to ensure a clear focus on the rights of older people, in line with the recommendations of the Royal Commission that a new Aged Care Act 'must enshrine the rights of older people seeking or receiving care'.
1.10 A number of submissions also highlighted the benefits of providing a statutory framework for government responses. For example, the Aged and Community Care Providers Association (ACCPA) recommended that:
the responsible Minister, as a representative of the Australian Government, be explicitly required to respond publicly (and within a prescribed timeframe) to recommendations made by the Inspector-General in reports being tabled by the Minister in Parliament.[2]
1.11 The Australian Greens support the proposals put forward by ACCPA, Agedand Disability Advocacy Australia, AHPA, and the Housing for the Aged Action Group (HAAG) that the framework be strengthened.
1.12That the Bill be amended to ensure a clear requirement that government respond to all relevant recommendations.
1.13A number of submissions also highlighted the question of whether the Inspector‑General can consider individual complaints, as set out in the recommendations of the Royal Commission.[3]
1.14As the National Aboriginal Torres Strait Islander Ageing and Aged Care Council noted in their submission:
The role proposed for the Inspector-General (IG) has far less scope and authority in complaints handling is several significant ways from the model proposed by the Royal Commission (in Recommendation 12) … The IG will not have a responsibility for dealing with complaints about the System Governor, the Quality Regulator, the Prudential Regulator or the Pricing Authority. Such a capability is crucial if the IG is to truly hold the system accountable. This is a direct contradiction to Recommendation 12.3.[4]
1.15The Australian Greens support the concerns raised in submissions by Aged Care Justice & Aged Care Reform Now, the National Aboriginal Torres Strait Islander Ageing and Aged Care Council, and Charles Maskell-Knight.
1.16That the Bill be amended in order to enable the Inspector-General to consider individual complaints, in line with the recommendations of the RoyalCommission.
1.17Many submissions also highlighted the opportunity for more regular reporting on the implementation of Royal Commission recommendations. As OPAN outlined in their submission:
OPAN recommends the Inspector-General should be empowered to make additional reports to Parliament where recommendations are not acted upon or progress against Royal Commission recommendations is impeded or stalled through the actions or inactions of Commonwealth agencies. Given the size of the disparity between the current and future aged care systems identified by the Royal Commission, OPAN recommends these reports should be like Closing the Gap reports. That is, they should identify priority reforms, set targets, report progress, and track implementation, including progress towards older people having a genuine say in their care and the design and delivery of aged care policies, programs and services.[5]
1.18The Australian Greens support the opportunity highlighted by AHPA, CharlesMaskell-Knight, Aged Care Justice & Aged Care Reform Now, and the National Aboriginal Torres Strait Islander Ageing and Aged Care Council, for more regular reporting on Royal Commission implementation by the Inspector‑General.
1.19That the Bill be amended to require the Inspector-General to publish regular updates on the Royal Commission recommendations, in line with the recommendations of the Royal Commission.
1.20A number of submissions raised more technical issues around the drafting of the legislation. A particular point was made by one submission in relation to the disclosure of sensitive information, and the broad powers of the Inspector‑General. As Charles Maskell-Knight noted in his submission:
… any information likely to discredit an aged care provider could reasonably be expected to prejudice its commercial interests, and could not therefore be included in a report by the Inspector General.
However, it is incorrect to assume that any prejudice to commercial interests is automatically contrary to the public interest. This is particularly the case for organisations such as aged care providers, delivering largely government-funded services to a vulnerable population. Information showing that a provider is failing to deliver appropriate care is likely to be prejudicial to its commercial interests, yet clearly in the public interest.
The provisions of the Bill are at odds with the regime set out in the FreedomofInformationAct1982 (the FOI Act). That Act contains a conditional exemption from release for documents containing information on the business, commercial or financial affairs of an entity which if disclosed might unreasonably affect that entity in respect of its lawful business (section 47G).
Section 11A of the FOI Act requires the decision maker to grant access to a conditionally exempt document "unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest".
Section 11B sets out the factors favouring access to the document in the public interest, including whether access would "inform debate on a matter of public importance" or "promote effective oversight of public expenditure".
In other words, FOI decision-makers – often middle managers within the public service – are given the discretion to release commercial information if it would be in the public interest. The Inspector-General of Aged Care – a far more senior position – should have a similar discretion.[6]
1.21Another technical change was the recommendation from the National Aboriginal Torres Strait Islander Ageing and Aged Care Council that the Government should:
Require that public notice be given of all reviews. Currently the bill only requires a notice to be issued to the Minister and affected government entities. To maximise transparency such notices should also be placed on the IG's website.[7]
1.22That the Government consider making a number of technical amendments to the bill, including in relation to information disclosure and public notice of reviews.
Senator Janet Rice
Deputy Chair
Footnotes
[1]Older Persons Advocacy Network, Submission 15, p. 3.
[2]Aged and Community Care Providers Association, Submission 2, p. 6.
[3]Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect – Volume1: Summary and Recommendations, p. 271.
[4]National Aboriginal Torres Strait Islander Ageing and Aged Care Council, Submission 16, p. 1.
[5]Older Persons Advocacy Network, Submission 15, p. 4.
[6]Mr Charles Maskell-Knight PSM, Submission 15, p. 4.
[7]National Aboriginal Torres Strait Islander Ageing and Aged Care Council, Submission 16, p. 2.
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