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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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The Aged Care Quality and Safety Commission Bill 2018 seeks to establish a
new Aged Care Quality and Safety Commission to replace the existing Australian
Aged Care Quality Agency and
Aged Care Complaints Commissioner from
1 January 2019
The Aged Care Quality and Safety Commission (Consequential Amendments and
Transitional Provisions) Bill 2018 seeks to address consequential and
transitional matters that arise from the enactment of the Aged Care Quality
and Safety Commission Act 2018
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Portfolio
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Health
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Introduced
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House of Representatives on 12 September 2018
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Bill status
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Before the House of Representatives
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2.2 In Scrutiny Digest 11 of 2018[2] the committee requested the minister's detailed advice as to:
• why it is considered necessary and appropriate to leave the Commissioner's complaints and regulatory functions, including review rights in relation to decisions made under these functions, to be set out entirely in the rules; and
• the type of consultation that it is envisaged will be conducted prior to the making of the rules and whether specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) can be included in the legislation (with compliance with such obligations a condition of the validity of the legislative instrument).
Minister's response[3]
2.3 The minister advised:
Executive rule making powers
The Bill provides that matters relating to the performance of the complaints and regulatory functions (among others), will be prescribed in the Rules (clause 22(2)).
All significant matters relating to the rights and responsibilities of persons involved in the complaints and regulatory functions will be established in primary legislation, including both the Bill and the Aged Care Act 1997, as amended by the Consequential and Transitional Bill. These Bills elevate certain matters of significance currently in delegated legislation into the primary legislation, and leave matters largely of an operational nature, that set out how the Commissioner may exercise their functions, to be prescribed in rules.
By way of explanation, the Bill provides the scope and nature of the Commissioner's complaints and regulatory functions (clauses 18 and 19) and monitoring powers and purposes for which they may be exercised in carrying out these functions (Part 8). For example, this includes the search and entry powers of regulatory officials as they relate to the Quality Agency's accreditation, quality review and monitoring functions which are currently conferred under Parts 2 and 3 of the Accountability Principles 2014. The Bill moves these powers from delegated legislation to primary legislation, consistent with the arrangements for the powers of authorised complaints officers. Such changes will ensure matters which directly affect the rights, and liberties of persons are also expressly provided for in primary legislation.
In addition, to support these functions, it is relevant to take into account that the Aged Care Act 1997 sets out the enforceable responsibilities of approved providers, in relation to which the Commissioner may resolve or deal with complaints (for example, in Parts 4.1, 4.2, 4.3), and accredit, review or monitor the provision of quality of care (for example, in sections 42-1; 42-4, and Part 4.3).
The Aged Care Act 1997 also provides the functions and powers through which these responsibilities will be enforced (Part 4.4) by the Secretary of the Department. In light of this, the Bill and Rules will not generally confer the Commissioner with any powers to ultimately determine or give effect to these rights or responsibilities, they would be expected to only set out a means for reviewing decisions of the Commissioner, as is currently provided for in the Quality Agency Principles 2013.
Consultation on rule making powers
Additional consultation requirements, beyond those provided for under section 17 of the Legislation Act 2003 have not been included in the Bill, since the rules will largely deal with operational matters, as noted above. The Department of Health has been working with the aged care sector on aged care reforms, including the co-design of the new Aged Care Quality Standards, and the Government is committed to continuing this manner of consultation.
In relation to the initial Rules which will be made to commence on 1 January 2019, it is also relevant to note that the main content of these rules will broadly reflect the current Quality Agency Principles 2013 and the Complaints Principles 2015 and the Quality Agency Reporting Principles 2013, which will be replaced by the Rules. As noted in the explanatory statements for these Principles, relevant stakeholders were consulted on these Principles prior to their enactment.
Committee comment
2.4 The committee thanks the minister for this response. The committee notes the minister's advice that the bills elevate certain matters of significance currently in delegated legislation into primary legislation, leaving operational matters related to the exercise of the Commissioner's functions to be prescribed by the rules.
2.5 The committee further notes the minister's advice that the Aged Care Act 1997 (Aged Care Act) sets out the responsibilities of approved providers in relation to which the Commissioner may deal with complaints and accredit, review or monitor the provision of care, as well as the functions and powers through which these responsibilities may be enforced by the secretary. The committee further notes the minister's advice that the rules would not generally confer on the Commissioner any power to ultimately determine or give effect to rights or responsibilities; rather, the rules would be expected only to set out a means of reviewing decisions of the Commissioner.
2.6 The committee welcomes the inclusion in the bill of a number of significant matters from delegated to primary legislation. Nevertheless, the committee remains concerned that the bill would still leave a number of significant matters regarding the Commissioner's complaints and regulatory functions, to be prescribed by the rules, with no further guidance on the face of the bill as to how the rule making power is to be exercised. Further, and as outlined in its initial comments, the committee considers that review rights in relation to the exercise of complaints and regulatory functions are significant matters that should also be included in primary legislation. The committee therefore remains concerned that it is left to the rules to set out the means by which decisions of the Commissioner may be reviewed.
2.7 The committee further notes the minister's advice that additional consultation requirements have not been included in the bill as the rules will largely deal with operational matters and the government is committed to continuing consultation. However, as the bill appears to leave a number of significant matters to delegated legislation, the committee reiterates its general view that, where the Parliament delegates its legislative power in relation to significant regulatory schemes, it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act) are included in the bill and that compliance with those obligations is a condition of the validity of the relevant legislative instrument.
2.8 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.9 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of leaving significant matters, such as complaints and regulatory functions, and review rights relating to those functions, to delegated legislation.
2.10 The committee also draws these matters to the attention of the Senate Standing Committee on Regulations and Ordinances for information.
2.11 In Scrutiny Digest 11 of 2018,[5] in relation to subclause 56(1), the committee requested the minister's advice as to why it is necessary to allow additional circumstances in which the Commissioner must give information to the secretary to be specified in the rules.
2.12 In relation to paragraph 61(1)(a), the committee requested the minister's advice as to:
• why it is necessary to grant the Commissioner a broad discretion to disclose protected information to any person and for any purpose, so long as the Commissioner considers it necessary in the public interest to do so; and
• why (at least high-level) rules or guidance about the exercise of this disclosure power cannot be included in the primary legislation.
2.13 In relation to paragraph 61(1)(j), the committee requested the minister's advice as to why it is considered necessary and appropriate to allow the rules to specify additional kinds of persons to whom protected information may be disclosed and the purposes for which such a disclosure may be made.
Minister's response[6]
2.14 The minister advised:
Rules specifying disclosures to Secretary
Rules specifying disclosures by the Commissioner to the Secretary are necessary given the Secretary will routinely require information acquired in the course of performing the Commissioner's functions, in order to carry out the Secretary's functions.
This information is expected to include information relating to the Commissioner's accreditation and monitoring functions as contemplated under s 65-1A of the Aged Care Act 1997 and in the current Quality Agency Reporting Principles 2013 (which will be replaced by the Rules). The Commissioner would disclose this information to the Secretary, for the purposes of deciding whether an approved provider has complied, or is complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3. The Secretary may impose sanctions under Part 4.4 if a provider fails to comply with its responsibilities. The need for this provision will be reviewed during the second stage of reform, when compliance functions of the Department are transferred to the Commission.
Permitted disclosure on public interests grounds
Clause 61(1)(a) of the Bill is intended to be based on provisions contained in Division 86 Aged Care Act 1997 and Part 7 of the Australian Aged Care Quality Agency Act 2013. These provisions enable disclosures of protected information on similar terms to support the complementary functions of the CEO of the Quality Agency and the Secretary of the Department under the Aged Care Act 1997. Clause 61(1)(a) is therefore included in the Bill to maintain consistency with the Aged Care Act 1997.
In addition, this broad discretion is appropriate as it will give the Commissioner the ability to disclose information in circumstances: where it will address particular risks to aged care consumers; or where it will benefit aged care providers and consumers as a whole; or which arise in relation to broader issues also affecting other areas outside the health portfolio, such as corporate governance or workplace relations. This is likely to become increasingly relevant with the insights of a single agency that has more comprehensive oversight of regulated activities.
It should be noted that any protected information that is disclosed under this provision may only include personal information (or any other protected information), where it is necessary for the public interest purpose, and will remain subject to these restrictions to prevent unrelated disclosures or disclosures for secondary purposes.
Rules to specify additional grounds for disclosure kinds of disclosures
The Bill provides for the Rules to specify additional circumstances in which disclosures of protected information may be authorised. This has been necessary to accommodate new legislation that is introduced which interacts with the Aged Care Act 1997. Principles made under corresponding provisions of the Aged Care Act 1997 have been amended from time to time for this purpose. For example, the current Information Principles 2014 enable the Secretary of the Department of Health to disclose information to the Repatriation Commission and to State and Territory authority responsible to fire safety, where the information relates to the functions of that organisation. Disclosures of this type ensure the seamless operation of related legislation related to safety, the payment of aged care subsidies, pensions and other Government payments.
The need for these provisions will also be reviewed in the second stage of reform, which will consider the information needs of the Commissioner in the context of the functions of the Commissioner as a whole from 1 January 2020, taking into account the level of executive scrutiny that is appropriate for such provisions and the views of the Committee.
Committee comment
2.15 The committee thanks the minister for this response. In relation to subclause 56(1), the committee notes the minister's advice that allowing the rules to specify the circumstances in which the Commissioner must give information (which is expected to include information relating to the Commissioner's accreditation and monitoring functions) to the secretary is necessary, as the secretary will routinely require such information in order to carry out the secretary's functions, including imposing sanctions if a provider fails to comply with its responsibilities.
2.16 In relation to paragraph 61(1)(a), the committee notes the minister's advice that the provision was included to maintain consistency with the Aged Care Act, and that the broad discretion is appropriate as it will allow the Commissioner to disclose information in order to manage risks and deliver benefits to aged care providers and consumers, as well as in circumstances related to areas outside the health portfolio. The committee further notes the minister's advice that protected information disclosed under paragraph 61(1)(a) may only include personal information where it is necessary in the public interest, and that the information will remain subject to restrictions to prevent unrelated disclosures or disclosures for secondary purposes.
2.17 While noting this advice, the committee remains concerned that paragraph 61(1)(a) confers an extremely broad discretion to disclose protected information (which may include personal information) to any person, and for any purpose, so long as the Commissioner considers it in the public interest to do so. In this regard, the committee reiterates that the bill contains no requirement for the Commissioner to notify a person about whom information is to be disclosed, give the person an opportunity to make representations about the proposed disclosure, or to consider the impact that the disclosure may have on the person. The committee acknowledges the importance of addressing risks to aged care consumers. However, as noted in the committee's initial comments, paragraphs 61(1)(e) and 61(1)(h)(i), respectively, already allow the disclosure of information to prevent or lessen risks to aged care consumers and for the enforcement of the criminal law. The committee notes the minister's advice that disclosure may also be to 'benefit aged care providers and consumers as a whole' or in relation to broader issues which arise 'such as corporate governance or workplace relations'. However, it is unclear why, in such instances, identifiable personal information should be able to be disclosed, rather than de-identified information.
2.18 Finally, in relation to paragraph 61(1)(j), the committee notes the minister's advice that allowing rules to specify additional circumstances in which protected information may be disclosed has been necessary to accommodate new legislation which interacts with the Aged Care Act. In this regard, the committee notes the advice that disclosures of this type ensure the seamless operation of related legislation associated with safety, as well as the payment of aged care subsidies, pensions and other government payments. The committee further notes the minister's advice that the need for this provision will be reviewed in the second stage of reform, which will take into account the level of executive scrutiny that is appropriate for such provisions, as well as the views of the committee.
2.19 The committee appreciates the importance of responding effectively to legislative changes that affect the operation of the aged care regime. However, the committee notes that there is no limit on the persons to whom, or the purposes for which, personal information could be shared as set out in rules made under paragraph 61(1)(j). It remains unclear to the committee that other persons to whom information may be disclosed, and the permitted purposes for that disclosure, could not similarly be set out in primary legislation, with amendments made as necessary to take account of changes in legislation that interacts with the Aged Care Act (noting that any new legislation could be the vehicle to make the necessary amendments).
2.20 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.21 In relation to subclause 56(1) of the Aged Care Quality and Safety Commission Bill 2018, in light of the information provided the committee makes no further comment.
2.22 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of granting a broad discretionary power to disclose protected information, and to allow the rules to specify additional categories of persons and purposes for the disclosure of protected information, in paragraphs 61(1)(a) and (j) of the Aged Care Quality and Safety Commission Bill 2018.
2.23 The committee also draws these matters to the attention of the Senate Standing Committee on Regulations and Ordinances for information.
2.24 In Scrutiny Digest 11 of 2018[8] the committee requested the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in subclauses 60(3), (4) and 74(6).
Minister's response[9]
2.25 The minister advised:
Consistent with Australian Government Policy - A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers - the primary reason a defendant bears an evidential burden in relation to the matters covered under subclauses 60(3) and 60(4) is because they are matters peculiarly within the knowledge of the defendant.
Conduct which qualifies for exception under these subclauses, such as disclosures to specified persons, or disclosures made on the authority provided by the person or body to whom it relates, concern matters directly connected to the defendant's conduct. In particular, in circumstances where the excluded conduct is carried out in the course of performing functions or exercising powers under the new Act or Rules as per subclause 60(1), the defendant would, as a matter of course, be expected to maintain the appropriate records relating to the purpose of the record, use or disclosure of protected information, or authority which may have been obtained to record, use of disclose this information.
Further, the matters dealt with under subclauses 60(3) and 60(4) are not central to the question of culpability for the offence under subclause 60(1), which also carries a relatively low penalty.
In relation to the strict liability offences created for failing to return an identity card (subclauses 74(3) and (4)), the evidential burden is reversed given that the exceptions provided for (i.e. the loss or destruction of a card) are also matters peculiarly in the knowledge of the defendant. If the defendant is unable to return the card because it has been destroyed, that knowledge would be held by the defendant, or alternatively, if the card has been lost by the defendant, this is also a matter specifically within the defendant's knowledge, as per the other exception to the offence.
In addition, these offences are also publishable [sic] by a relatively low penalty of one penalty unity and are not subject to a term of imprisonment.
Committee comment
2.26 The committee thanks the minister for this response. The committee notes the minister's advice that the matters in subclauses 60(3) and (4) would be peculiarly within the knowledge of the defendant. In this regard, the committee notes the advice that the relevant matters (for example, disclosures made to or on the authority of particular persons) are directly connected to the defendant's conduct, and the advice that the defendant would be expected to maintain appropriate records relating to the purpose of, and the authorisations given, in relation to the use, disclosure or recording of protected information. The committee further notes the minister's advice that the matters dealt with under subclauses 60(3) and (4) are not central to the question of culpability for the offence in subclause 60(1), which carries a relatively low penalty.
2.27 However, it is not apparent to the committee that each of the matters in subclauses 60(3) and (4) would be peculiarly within the knowledge of the defendant. For example, in relation to subclause 60(3), whether the recording, disclosure or use of protected information is authorised under particular legislation appears to be a largely factual matter. In relation to subclause 60(4), whether the disclosure of information is to the person or body to which the information relates, or to the minister or the secretary, appears to be a matter of which those persons would be particularly apprised.
2.28 The committee also notes that the Guide to Framing Commonwealth Offences states that creating an offence-specific defence may be more readily justified if relevant matters are not central to the question of culpability for the offence, or if the relevant offence carries a relatively low penalty.[10] However, it appears that the matters in subclauses 60(3) and (4) would be central to culpability for the offence in subclause 60(1), noting that the substance of that offence relates to unauthorised disclosure. Moreover, the committee does not consider a custodial penalty of two years' imprisonment to be a 'low penalty'.
2.29 In relation to the reversal of the burden of proof in subclause 74(6), the committee notes the minister's advice that the matters in that provision (that is, whether an identity card has been lost or destroyed) are matters that are peculiarly within the defendant's knowledge. The committee also notes the minister's advice that the offences in subclauses 74(3) and (4), to which the defence in subclause 74(6) relates, are punishable by a relatively low penalty of one penalty unit, and are not subject to a term of imprisonment.
2.30 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.31 The committee draws its scrutiny concerns relating to the reversal of the evidential burden of proof in subclauses 60(3) and (4) of the Aged Care Quality and Safety Commission Bill 2018 to the attention of senators, and leaves to the Senate as a whole the appropriateness of reversing the burden of proof in relation to matters that do not appear to be peculiarly within the defendant's knowledge.
2.32 In light of the information provided by the minister, the committee makes no further comment on the reversal of the evidential burden of proof in subclause 74(6) of the Aged Care Quality and Safety Commission Bill 2018.
In Scrutiny Digest 11 of 2018[12] the committee considered it may be appropriate to:
• amend clause 76 of the Aged Care Quality and Safety Commission Bill 2018 to require that the Commissioner be satisfied that persons performing delegated functions and exercising delegated powers have the expertise appropriate to the function or power delegated; and
• amend item 19 of Schedule 1 of the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018 to require that the Commissioner be satisfied that persons performing sub-delegated functions and exercising sub-delegated powers have the expertise appropriate to the function or power sub-delegated.
Minister's response[13]
2.33 The minister advised:
This provision is consistent with the powers of the current Aged Care Complaints Commissioner, and this flexibility has been retained to ensure operational efficiency is maintained for the Commissioner. It is also relevant to note, that the matters dealt with in the Rules will to a large extent include routine matters of operation, as mentioned above.
Additionally, consistent with their general duties, I would expect the Commissioner to take into account not only the expertise of staff but also other appropriate factors, in delegating his or her functions under the Bill or Aged Care Act 1997.
For example, the Commissioner should also consider the broader governance structure which will best serve the Commission's purpose of establishing a single agency that consolidates functions and makes best use of information and resources to identify and respond to regulatory risks.
I thank the Committee for its consideration of this matter and note the recommendation put forward for the Senate's consideration. However, for the reasons outlined above, the Government's view is that the provisions of the Bill are appropriate and further refinements can be considered as part of the second stage of reforms to the powers and functions of the Commissioner.
Committee comment
2.34 The committee thanks the minister for this response. The committee notes the minister's advice that the powers of delegation under the bills are consistent with the powers of the current Aged Care Complaints Commissioner, and that these powers have been retained in order to maintain operational flexibility. The committee also notes the minister's advice that the Commissioner would be expected to take into account the expertise of staff, as well as other appropriate factors, in delegating his or her functions under the bill or the Aged Care Act.
2.35 The committee further notes the minister's advice that, for the reasons outlined above, the government's view is that the relevant provisions of the bills (that is, the powers of delegation) are appropriate, and the advice that further refinements can be considered as part of the second stage of reforms to the powers and functions of the Commissioner.
2.36 While noting this advice, the committee reiterates that it has not generally considered administrative or operational flexibility, or consistency with existing legislation, to be sufficient justification for allowing a broad delegation of administrative powers to officials at any level. Noting that it is intended for the Commissioner to take into account the expertise of staff, and other appropriate matters, when delegating powers and functions, it remains unclear to the committee why the bill could not include a requirement that the Commissioner be satisfied that persons performing delegated functions and exercising delegated powers have the expertise appropriate to the function or power delegated.
2.37 As outlined its initial comments, the committee considers it may be appropriate to:
• amend clause 76 of the Aged Care Quality and Safety Commission Bill 2018 to require that the Commissioner be satisfied that persons performing delegated functions and exercising delegated powers have the expertise appropriate to the function or power delegated; and
• amend item 19 of Schedule 1 of the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018 to require that the Commissioner be satisfied that persons performing sub-delegated functions and exercising sub-delegated powers have the expertise appropriate to the function or power sub-delegated.
2.38 The committee otherwise reiterates its initial scrutiny concerns, and leaves to the Senate as a whole the appropriateness of allowing the delegation and sub-delegation of administrative powers to a broad range of staff members of the Commission.
[1] Aged Care Quality and Safety Commission Bill 2018, clause 21. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii) and (iv).
[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 11 of 2018, at pp. 1-4.
[3] The minister responded to the committee's comments in a letter 4 October 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 12 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
[4] Aged Care Quality and Safety Commission Bill 2018, clause 56, and proposed paragraphs 61(1)(a) and (j). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i), (ii), (iv) and (v).
[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 11 of 2018, at pp. 4-6.
[6] The minister responded to the committee's comments in a letter 4 October 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 12 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
[7] Aged Care Quality and Safety Commission Bill 2018, subclauses 60(3) and (4), and 74(6). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[8] Senate Scrutiny of Bills Committee, Scrutiny Digest 11 of 2018, at pp. 6-7.
[9] The minister responded to the committee's comments in a letter 4 October 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 12 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
[10] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.
[11] Aged Care Quality and Safety Commission Bill 2018, subclause 76(1), and Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018, Schedule 1, item 19. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).
[12] Senate Scrutiny of Bills Committee, Scrutiny Digest 11 of 2018, at pp. 8-9.
[13] The minister responded to the committee's comments in a letter 4 October 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 12 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
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