Additional Comments from Senator David Pocock

1.1I thank the Committee for the opportunity to provide additional comments on the Inspector-General of Aged Care bills.

1.2Broadly, I am supportive of the bills and of the role intended for the Inspector‑General to drive greater accountability and transparency of the Commonwealth's administration of the aged care system and to facilitate positive change for the older Australians.

1.3I recommend the following amendments be considered in order to strengthen the integrity of this new independent position and to clarify the role of the Inspector-General with respect to complaints management.

Complaints oversight

1.4Under Section 3(b) of the Bill, the Inspector-General of Aged Care will: '[provide] oversight of the Commonwealth's administration of complaints management processes across the aged care system.'[1]

1.5This represents a change to what was recommended by the Royal Commission, which intended for the Inspector-General to have a complaints handling role.

1.6I note that the explanatory memorandum reads:

... the model this Bill puts into place 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 they provide a fair and transparent means of resolving concerns, rather than having an active role in considering individual complaints.'[2]

1.7Multiple concerns have been raised by submitters about the Inspector-General's involvement in providing oversight of complaints processes.

1.8I specifically note concerns that the current wording of the Bill may limit the Inspector-General's involvement purely to monitoring the performance and integrity of complaints systems, and preclude them from analysing complaints data to monitor for issues in how Commonwealth entities are administering the aged care system.

1.9Given the Inspector-General's intended remit to drive greater accountability in the Commonwealth's administration of the aged care system, it would seem necessary for the Inspector-General to monitor the complaints data about, or held by Commonwealth entities to search for systemic issues that may require further investigation.

1.10I note the evidence provided by the Aged & Community Care Providers Association:

We believe that the focus of any complaint analysis undertaken by the Inspector-General should be about both the performance or conduct of a government entity and the extent to which complaints reflect systemic issues with the coordination and interaction of government bodies with responsibilities for aged care.[3]

1.11I further note the feedback by the Older Persons Advocacy Network on this matter:

It would be beneficial to see older people being able to submit their concerns about complaint handling and outcomes to the Inspector-General as part of the process for identifying systemic issues.[4]

1.12Given the above, I recommend amendments be considered to the Bill or to the explanatory memorandum that further clarify the Inspector-General's role in providing 'oversight' of the complaints handling process, to ensure the Inspector-General is able to analyse complaints data to identify systemic issues that may need to be investigated further.

Update on progress of implementing the recommendations of the Aged Care Royal Commission

1.13I note that the Royal Commission stated that:

There must be clear accountability for implementation. Implementation must be monitored constantly, reviewed regularly, and have the continuous backing of the Government.[5]

1.14I also note that the Inspector-General is intended to monitor progress in implementing the recommendations from Aged Care Royal Commission, with statutory reviews required in 2026 and 2031.

1.15There is concern in the community that too much time has elapsed since the last comprehensive report on progress in this area.

1.16As noted by Charles Maskell-Knight in his submission:

So far the only comprehensive document setting out the government's reaction to the Royal Commission was the initial government response of May 2021 … Since then there has not been any government publication setting out progress against the recommendations – or, indeed, whether or not the government is committed to any particular measure.[6]

1.17Multiple stakeholders have recommended that there be an earlier review – or more frequent, potentially annual reviews – to ensure the intention of the Commissioners to tightly track the progress of implementation is fulfilled.

1.18While I note that the Inspector-General could decide to conduct regular reviews on their own initiative, I recommend that consideration be given to at least a first-year statutory review to provide Australians with an early update on how implementation is tracking.

1.19Alternatively, consideration could be given to including a new object in the Bill, stating that the Parliament intends for the Inspector-General to monitor the implementation of the recommendations of the Aged Care Royal Commission.

Appointment of the Inspector-General of Aged Care

1.20The Inspector-General is a significant appointment, particularly as it is an appointment that will wield coercive powers and one that will have a direct role in making reports to the Parliament.

1.21For the Inspector-General to impartially and fearlessly discharge their duties with the trust of the Australian community and the Parliament, we need confidence that any appointment is based on merit and not on any political relationship that may exist between the appointee and the Minister or any member of the Government.

1.22Political appointments, whether real or perceived, are corrosive to our public institutions and undermine the public's faith that those institutions are working in the best interests of Australians.

1.23I understand that any appointment would be subject to the Government's 'Significant Appointments' process and in accordance with the Government's Merit and Transparency Policy.

1.24However, guidelines are non-binding, and their existence should not preclude legislative protections that safeguard this independent and powerful position against political appointments.

1.25This was the position recently adopted by the Minister for Infrastructure, Transport and Regional Development and Local Government in the High Speed Rail Authority Act 2022, which includes provisions that board members and the CEO must not be appointed unless those positions have been publicly advertised and a merit based selection process has been undertaken.

1.26These provisions are also contained in the Infrastructure Australia Amendment (Independent Review) Bill 2023, which is currently before the Parliament for consideration.

1.27I note the support for safeguards against political appointments from OPAN and further note their evidence that the Bill should:

... [protect] the independence of the Inspector-General by precluding any person involved in funding, regulating or delivering aged care services in the previous 3 - 5years from being appointed to the role.[7]

1.28I recommend that consideration be given to amending the legislation to include a statutory requirement that appointments be publicly advertised and include a merit-based selection process.

Senator David Pocock

Footnotes

[1]Inspector-General of Aged Care Bill 2023, subcl. 3(b).

[2]Inspector-General of Aged Care Bill 2023 and Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill 2023, Explanatory Memorandum, pp.19–20.

[3]Aged and Community Care Providers Association, Submission 2, p. 8.

[4]Older Persons Advocacy Network, Submission 14, p. 2.

[5]Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect –Volume 3B: The new system, p.933.

[6]Mr Charles Maskell-Knight PSM, Submission 15, p. 3.

[7]Older Persons Advocacy Network, Submission 14, p. 2.