Chapter 1Introduction

1.1The Inspector‑General of Aged Care Bill 2023 (IGAC bill) and the Inspector‑General of Aged Care (Consequential and Transitional Provisions) Bill 2023 (CTP bill) (together, the bills) were introduced in the House of Representatives on 22March2023.[1]

1.2On 23 March 2023, the Senate referred the provisions of the bills to the Senate Community Affairs Legislation Committee (the committee) for inquiry and report by 28 April 2023.[2]

Structure of the report

1.3This report contains two chapters. This chapter sets out:

background information relating to the Royal Commission into Aged Care Quality and Safety and the exposure draft of the IGAC bill;

the purpose of the bills;

an overview of the bills' key provisions; and

general information outlining the conduct of the inquiry and other committees' consideration of the bills.

1.4Chapter 2 sets out the views on the bill and concludes with the committee's view and recommendation.

Background

1.5Australia's aged care system provides subsidised care and support to older people. The system is large and complex, and includes a range of programs and policies. It provides supports ranging from low-level assistance with day-to-day tasks through to high level medical intervention.[3]

Royal Commission into Aged Care Quality and Safety

1.6The Royal Commission into Aged Care Quality and Safety (Royal Commission) was established on 8October2018. The Royal Commission delivered an interim report on 31 October 2019,[4] a special report on COVID-19 and aged care on 1October2020,[5] and a final report on 26February2021.

1.7The final report, titled Care, Dignity and Respect, called for fundamental and systemic reform of the aged care sector and made 148 recommendations.[6] Recommendation 12 called on the government to establish an independent office of the Inspector‑General of Aged Care (Inspector‑General) to investigate, monitor and report on the administration and governance of the aged care system, by:

conducting reviews on its own motion and/or at the request of the System Governor or the Minister or Parliament to ensure the quality and safety of aged care;

reviewing regulator decisions on a systematic basis to ensure regulator integrity and performance;

reviewing the performance of functions by the System Governor, the Quality Regulator, the Prudential Regulator and the Pricing Authority;

monitoring the adequacy of aged care data collection and analysis;

monitoring the implementation of the reforms recommended by the Royal Commission; and

reporting annually to the Australian Parliament on systemic issues in the aged care system and the extent to which the aged care system attains the objects of the new Act.[7]

1.8Recommendation 12 outlined further rights and responsibilities for the proposed Inspector‑General:

the Inspector‑General should have a statutory right of access to all documents and data related to aged care held by the System Governor, the Quality Regulator, the Prudential Regulator and the Pricing Authority;

the Inspector‑General should have responsibility for dealing with complaints about the System Governor, the Quality Regulator, the Prudential Regulator and the Pricing Authority;

an Inspector‑General should be appointed under interim administrative arrangements, and should in due course be established formally under the new Act; and

the Inspector‑General should have a separate appropriation and its own staffing, and be housed separately from the System Governor.[8]

Exposure Draft

1.9The Department of Health and Aged Care published an exposure draft of the IGAC bill and a consultation paper[9], for public comment from 13 December 2022 to 27 January 2023. The department sought feedback from peak and advocacy groups representing aged care system stakeholders, government departments and agencies, research organisations and universities, older Australians, their families, carers and those working in aged care, and aged care service providers.[10] The department received 124 submissions, including 28 written submissions and 96 survey responses.[11]

Purpose of the bills

1.10The bills' primary purpose is to respond to Recommendation 12 of the Royal Commission by establishing the Inspector‑General of Aged Care.

Inspector‑General of Aged Care Bill 2023

1.11According to the explanatory memorandum, the IGAC Bill establishes the new Inspector‑General as an independent oversight body. The Inspector‑General is to have a systemic oversight role spanning the aged care system administered, regulated, funded and delivered by the Commonwealth, including examining and reporting on the performance of Commonwealth and other entities with a role in the aged care system.[12]

1.12In her second reading speech, the Minister for Aged Care, the Hon Anika Wells MP (the Minister) stated that the bill:

… makes sure that the royal commission is not just another missed opportunity, another report completed. It makes sure that someone is watching over and someone is making sure things gets done, someone who has the autonomy to say whether those things are effective or not.[13]

1.13The Minister added that the bill would steer a course to an aged care system that delivers safe and high-quality aged care and underlines the government's commitment to holding itself accountable.[14]

1.14The bill outlines the government's objectives to improve the accountability and transparency of the Commonwealth's administration of the aged care system, by:

(a)establishing an independent Inspector General of Aged Care to monitor, investigate and report on the Commonwealth's administration of the aged care system, including by identifying systemic issues through independent reviews, and making recommendations for improvement;

(b)providing oversight of the Commonwealth's administration of complaints management processes across the aged care system; and

(c)establishing a framework for the Inspector General of Aged Care to report publicly to the Minister and Parliament on the Commonwealth's administration of the aged care system.[15]

Inspector‑General of Aged Care (Consequential and Transitional Provisions) Bill2023

1.15According to the explanatory memorandum, the CTP Bill supports the IGAC bill in establishing the Inspector‑General by:

amending various Commonwealth Acts to facilitate the provision of information to the Inspector‑General that is subject to secrecy provisions;

amending the National Anti-Corruption Commission Act 2022 to prescribe the Inspector‑General as a 'Commonwealth integrity agency'; and

supporting the transition from the non-statutory interim Inspector‑General of Aged Care to the Inspector‑General.[16]

Provisions of the bills

Inspector-General of Aged Care Bill 2023

1.16The IGAC Bill contains six parts:

Part 1 – Preliminary

Part 2 – Establishment and functions and powers of the Inspector‑General of Aged Care

Part 3 – Administrative provisions

Part 4 – Information management

Part 5 – Compliance and enforcement

Part 6 – Miscellaneous

Part 2 – Establishment and functions and powers of the Inspector‑General of Aged Care

1.17The Inspector‑General's functions are to monitor, investigate and report to the Minister on the Commonwealth's administration and regulation of the aged care system, including by identifying and investigating systemic issues through the conduct of independent reviews, and making recommendations to the Commonwealth for improvement. The Inspector‑General will report its findings and recommendations publicly.[17]

1.18The Inspector‑General is independent, and not subject to direction, except that the Minister may direct the Inspector‑General to conduct a review into a particular matter.[18]

1.19The Inspector‑General must prepare and publish a written work plan for each financial year, setting out key outcomes and priorities, including details of each planned review. The Inspector‑General must consult the Minister in preparing a work plan.[19]

1.20The Inspector‑General may conduct reviews on their own initiative, or may be directed by the Minister to conduct a review on a particular matter, as noted above. The Secretary of the Department of Health and Aged Care or a Minister administering an aged care law may also request that the Inspector‑General conduct a review into a particular matter, but the Inspector‑General is not required to comply with such a request.[20]

1.21In conducting reviews, the Inspector‑General may invite members of the public, or a particular person or organisation, to make submissions. Submitters may request confidentiality when making their submissions. The Inspector‑General must not publish submissions that identify persons other than Ministers or senior public officials, or that contain sensitive information.[21]

1.22For each review, the Inspector‑General must prepare a draft report, setting out preliminary findings, a summary of evidence, and any proposed recommendations. The Inspector‑General must give interested parties an opportunity to comment on the draft report.[22]

1.23The Inspector‑General has the power to compel a government entity to respond to the recommendations of a review and to publish that response in conjunction with the final report.[23]

1.24Final reports must be provided to the Minister, as well as any affected entity or official, and published on the Inspector‑General's website. The Minister must table the final report in both Houses of Parliament within 15 sitting days of receiving the report.[24]

1.25If the Inspector-General has sufficient evidence of misconduct by Commonwealth officials, they must report that evidence to the accountable authority of the relevant Commonwealth entity. If there is sufficient evidence of misconduct by an accountable authority, that evidence must be reported to the responsible Minister.[25]

1.26The Inspector-General must conduct two periodic reviews of the implementation of the recommendations of the Aged Care Royal Commission. The first review is to be completed by 1 March 2026, and the second by 1March2031. Reports of these reviews must be provided to the Minister and published on the Inspector‑General's website. The Minister must table each report in both Houses of Parliament within 15 sitting days of receiving the report.[26]

Part 3 – Administrative provisions

1.27Part 3 deals with administrative matters relating to the office of the Inspector‑General, including their appointment, the terms and conditions on which they hold office, and the staff of the Office of the Inspector‑General of Aged Care.

1.28The Inspector‑General is to be appointed by the Governor‑General, on a full‑time or part-time basis, for a single term of up to five years, with a maximum of two terms of up to ten years in total.[27]

Part 4 – Information management

1.29This part sets out the Inspector‑General's information-gathering powers, the protections that may be available to persons who make disclosures to the Inspector-General, and the circumstances under which information may be disclosed.

1.30The Inspector-General is to have coercive information-gathering powers to support its functions, including powers to compel a person to produce information or documents or to answer questions, and for the Inspector‑General and their staff to access premises.[28]

1.31There are protections for persons making disclosures to the Inspector‑General, including protection of identity,[29] protection from retaliation or victimisation,[30] and protection from civil, criminal or administrative liability.[31]

1.32The bill also outlines the circumstances under which protected information may be disclosed, including for the purposes of court or tribunal proceedings,[32] for enforcement related activities,[33] where required by another law,[34] to an integrity agency,[35] or to prevent a serious threat to safety, health or well-being.[36]

Part 5 – Compliance and enforcement

1.33Civil penalty orders may be sought under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of the civil penalty provisions of the IGAC bill.[37]

Part 6 – Miscellaneous

1.34This part includes provisions about protecting certain persons from civil liability, reporting requirements, and delegation of the Inspector‑General's powers. It also contains the general regulation-making power.

Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill2023

1.35The CTP bill is comprised of two schedules:

Schedule 1 – Consequential amendments

Schedule 2 – Application, saving and transitional provisions.

1.36Key provisions of each schedule are outlined below.

Schedule 1 – Consequential amendments

1.37Amendments to the Aged Care Act 1997 and the Aged Care Quality and Safety Commission Act 2018 facilitate the provision of information to the Inspector‑General that is subject to secrecy provisions. Amendments to the National Anti-Corruption Commission Act 2022 prescribe the Inspector‑General as a 'Commonwealth integrity agency'.[38]

Schedule 2 – Application, saving and transitional provisions

1.38Application, saving and transitional provisions support the transition from the non-statutory interim Inspector-General of Aged Care to the Inspector‑General. The Minister may, by way of legislative instrument, make rules to support the transition.[39]

Financial impact statement

1.39The explanatory memorandum to the bills states that the cost of establishing the Inspector-General of Aged Care is $38.7million over the forward estimates.[40]

Compatibility with human rights

1.40The statement of compatibility with human rights for the bills notes that the IGAC bill engages the following human rights:

the right to an adequate standard of living;

the right to health;

the right to a fair trial;

the right to the presumption of innocence;

the right to be free from self-incrimination;

the right to privacy; and

the right to freedom of expression.[41]

1.41The statement also notes that the CTP bill engages the right to privacy.

1.42The statement explains that the bills are consistent with human rights as they promote the rights of older Australians to an adequate standard of living and health, and work to address systemic issues in the aged care system. Furthermore, the statement notes that limitations to certain human rights are made in pursuit of permissible legitimate objectives, and in ways that are reasonable, necessary and proportionate in the particular circumstances to achieving those objectives.[42]

Consideration by other committees

1.43The Parliamentary Joint Committee on Human Rights had not reported on the bills at the time of writing.

1.44The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills committee) made extensive commentary on the IGAC bill, regarding reversal of the evidential burden of proof, coercive powers, and protection from civil and criminal liability.[43]

1.45Subclause 23(1) of the IGAC bill sets out a new offence of unauthorised disclosure of a draft report, an extract of a draft report, or a document relating to a preliminary finding or recommendation of a draft report.[44] Similarly, subclause 63(1) of the IGAC bill creates an offence of unauthorised use or disclosure of protected information by an entrusted person.[45] Defendants are to bear the evidential burden in relation to these offences. The Scrutiny of Bills Committee noted that evidentiary issues in relation to these offences appear to be matters which the prosecution could readily ascertain, and has sought ministerial advice as to why the burden of proof would need to be reversed in these cases.[46]

1.46Clause 50 of the IGAC bill provides that an authorised official may enter a premises for the purpose of performing the Inspector‑General's monitoring, investigation and reporting functions.[47] Paragraph 50(1)(a) of the IGAC bill outlines this right of entry in relation to Commonwealth-controlled premises,[48] and paragraph 50(1)(b) extends the right of entry to any premises if the Inspector‑General has issued a valid certificate.[49]

1.47The Scrutiny of Bills committee noted that entry to premises without consent should generally be undertaken by police officers, authorised by a warrant issued by a judicial officer.[50] The Scrutiny of Bills Committee requested the Minister's advice as to why it was necessary and appropriate to provide power to enter non-Commonwealth premises without making it clear that the framework in the Regulatory Powers (Standard Provisions) Act 2014 applies.[51] Clarity was also sought regarding which non-Commonwealth premises are envisaged to be entered, and whether there are any non-legislative safeguards in place.[52]

1.48Clause 58 of the IGAC bill provides protection from civil, criminal or administrative liability for persons making protected disclosures to the Inspector‑General.[53] However, paragraph 61(1)(a) provides that a person who seeks this protection in criminal proceedings bears the onus of proving that clause 58 applies, reversing the burden of proof.

1.49Clause 59 provides that the protection against liability does not apply if a person knowingly made a false or misleading statement.[54] This provision is not explained in the explanatory memorandum.[55]

1.50The Scrutiny of Bills committee requested that the Minister explain why it is necessary and appropriate to reverse the burden of proof, and to provide civil immunity except where false and misleading conduct can be demonstrated.[56]

1.51Clause 70 of the IGAC bill provides the Inspector‑General, their staff and representatives with protection from civil liability for actions taken in good faith. The explanatory memorandum states that this protection is necessary to enable officials to perform their functions and exercise their powers without being obstructed by challenges to the performance of those functions or the exercise of those powers through civil proceedings for loss, damage or injury.[57]

1.52The Scrutiny of Bills committee drew to the attention of the Senate its concerns about limiting civil liability to situations where lack of good faith is shown.[58]

1.53The Scrutiny of Bills committee made no comment on the CTP bill.[59]

1.54At the time of writing, the Scrutiny of Bills committee had not published the Minister's response.

Conduct of the inquiry

1.55The committee wrote to relevant stakeholders inviting them to make a submission to the inquiry by 3 April 2023.

1.56The committee received 18 submissions, as listed at Appendix 1.

Acknowledgement

1.57The committee thanks the individuals and organisations that made submissions for their interest and contribution to the inquiry.

Footnotes

[1]House of Representatives Votes and Proceedings, No. 46, 22 March 2023, p. 592.

[2]Journals of the Senate, No. 40, 23March2023, p. 1176; Senate Standing Committee for the Selection of Bills, Report No. 3 of 2023, 23March2023, p. 3.

[3]Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect – Volume 1: Summary and Recommendations, pp. 61–62, agedcare.royalcommission.gov.au/ publications/final-report (accessed 11 April 2023).

[4]Royal Commission into Aged Care Quality and Safety, Interim Report: Neglect, agedcare.royalcommission.gov.au/publications/interim-report (accessed 11 April 2023).

[5]Royal Commission into Aged Care Quality and Safety, Aged care and COVID-19: a special report, p.25, agedcare.royalcommission.gov.au/sites/default/files/2020-12/aged-care-and-covid-19-a-special-report.pdf (accessed 11 April 2023).

[6]Royal Commission into Aged Care Quality and Safety, 'Final Report calls for fundamental and systemic aged care reform', Media release, 1 March 2021, agedcare.royalcommission.gov.au/news-and-media/final-report-calls-fundamental-and-systemic-aged-care-reform (accessed 11 April 2023).

[7]Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect – Volume 1: Summary and Recommendations,pp. 217-218, agedcare.royalcommission.gov.au/ publications/final-report (accessed 11 April 2023).

[8]Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect, Volume 1: Summary and Recommendations,p. 218.

[9]See: Department of Health and Aged Care, Inspector-General of Aged Care Bill 2022 – Exposure Draft, health.gov.au/resources/publications/inspector-general-of-aged-care-bill-2022-exposure-draft (accessed 11 April 2023); Department of Health and Aged Care, Consultation Paper on the Exposure Draft of the Inspector-General of Aged Care Bill, https://www.health.gov.au/ resources/publications/consultation-on-an-exposure-draft-of-the-inspector-general-of-aged-care-bill (accessed 11 April 2023) and The Hon Anika Wells MP, Minister for Aged Care, 'Mr Ian Yates AM appointed as interim Inspector-General of Aged Care', Media release, 13 December 2022.

[10]Consultation Paper on the Exposure Draft of the Inspector-General of Aged Care Bill, p.3, https://www.health.gov.au/resources/publications/consultation-on-an-exposure-draft-of-the-inspector-general-of-aged-care-bill (accessed 11 April 2023)

[11]Department of Health and Aged Care, Submission 1, p. 5.

[12]Inspector-General of Aged Care Bill 2023 and Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill 2023, Explanatory Memorandum, (Explanatory Memorandum) p.1.

[13]The Hon Anika Wells MP, Minister for Aged Care, House of Representatives Hansard, 22March2023, p. 21.

[14]The Hon Anika Wells MP, Minister for Aged Care, House of Representatives Hansard, 22March2023, p. 21.

[15]IGAC bill, pp. 2–3.

[16]Explanatory Memorandum, p. 2.

[17]Explanatory Memorandum, p. 2.

[18]IGAC bill, cl. 11 and subcl. 17(2).

[19]IGAC bill, cl. 15.

[20]IGAC bill, cl. 17.

[21]IGAC bill, cl. 20.

[22]IGAC bill, cl. 21.

[23]IGAC bill, subcl. 24(3).

[24]IGAC bill, cl. 25.

[25]IGAC bill, cl. 27; Explanatory Memorandum, p. 31.

[26]IGAC bill, cl. 28; Explanatory Memorandum, p. 32.

[27]IGAC bill, cl. 31 and 32; Explanatory Memorandum, p. 1.

[28]IGAC bill, cl. 44 and 50, Explanatory Memorandum, p. 2.

[29]IGAC bill, cl. 55.

[30]IGAC bill, cl. 56.

[31]IGAC bill, cl. 58.

[32]IGAC bill, subcl. 64(2).

[33]IGAC bill, subcl. 64(3).

[34]IGAC bill, subcl. 64(5).

[35]IGAC bill, subcl. 64(10).

[36]IGAC bill, subcl. 64(12).

[37]IGAC bill, cl. 66.

[38]CTP bill, Schedule 1; Explanatory Memorandum, p. 2.

[39]CTP bill, Schedule 1; Explanatory Memorandum, p. 2.

[40]Explanatory Memorandum, p. 3. See also Commonwealth of Australia, Budget Measures: Budget Paper No. 2 2022–23, p. 127 and the Hon Mark Butler MP and the Hon Anika Wells MP, 'Restoring dignity to aged care', Media release, 25 October 2022, p. 2.

[41]The bills' Statement of Compatibility with Human Rights is contained in the explanatory memorandum. Explanatory Memorandum, pp. 4–5.

[42]Explanatory Memorandum, p. 18.

[43]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, pp.5–12.

[44]IGAC bill, subcl 23(1).

[45]IGAC bill, subcl. 63(1).

[46]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, p.7.

[47]IGAC bill, cl. 50.

[48]IGAC bill, para. 50(1)(a).

[49]IGAC bill, para. 50(1)(b).

[50]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, p.8.

[51]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, p.10.

[52]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, p.10.

[53]IGAC bill, cl. 58.

[54]IGAC bill, cl. 59.

[55]Explanatory Memorandum, pp. 47–49.

[56]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, p.11.

[57]Explanatory Memorandum, p. 53.

[58]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, p.12.

[59]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 4 of 2023, 30 March 2023, p.14.