Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 [2019] AUSStaCSBSD 125 (13 November 2019)

• Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019
• Use of force1
• Broad delegation of investigatory powers4
• Broad delegation of administrative power6

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Chapter 1

Commentary on Bills

1.1 The committee comments on the following bill and, in some instances, seeks a response or further information from the relevant minister.

Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019

Purpose	This bill seeks to amend various Acts in relation to aged care to transfer additional aged care regulatory functions to the Aged Care Quality and Safety Commissioner
Portfolio	Health
Introduced	Senate on 16 October 2019

Use of force^[1]

1.2 The bill seeks to insert new Part 6.4 into the Aged Care Act 1997 (Aged Care Act) and Part 8A into the Aged Care Quality and Safety Commission Act 2018 (Quality and Safety Act). Part 6.4 and Part 8A will trigger the monitoring and investigation powers under the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) in relation to the provisions of the bill. These monitoring and investigation powers include coercive powers such as powers of entry and inspection.

1.3 Proposed subsections 92-1(6) and 92-3(4) of the Aged Care Act and subsections 74B(6) and 74D of the Quality and Safety Act also provide that authorised officers and persons assisting officers may use such force against things as is necessary and reasonable in the circumstances when executing a warrant under Part 2 or Part 3 of the Regulatory Powers Act. The committee notes that the Guide to Framing Commonwealth Offences states that the inclusion in a bill of any use of force power for the execution of warrants should only be allowed where a need for such powers can be identified. It states that a use of force power should be accompanied by an explanation and justification in the explanatory memorandum and a discussion of proposed accompanying safeguards that the agency intends to implement.^[2]

1.4 In relation to subsection 92-1(6), the explanatory memorandum states:

The ability to use force to enter premises under a warrant in order to exercise monitoring powers will be necessary where entry has been demanded but refused, or where an approved provider is not present at the premises or where there is evidence of non-compliance with a monitored provision being concealed. In those circumstances, it may be reasonably necessary for an authorised person executing a warrant to open locked doors, cabinets, drawers and other similar objects for the purposes of determining whether a monitored provision under the Aged Care Act is being complied with.^[3]

1.5 The explanatory memorandum provides a similar explanation for the other provisions allowing for the use of force.

1.6 While noting the explanation provided in the explanatory memorandum, the committee notes that no information has been provided as to what safeguards will be implemented to ensure that force is only used in appropriate circumstances.

1.7 The committee therefore requests the minister's advice as to what safeguards will be in place to ensure that force is only used by authorised officers and persons assisting them in appropriate circumstances.

Broad delegation of investigatory powers^[4]

1.8 Proposed subsections 92-1(5) and 92-3(3) of the Aged Care Act 1997 and subsections 74B(5) and 74D(3) of the Aged Care Quality and Safety Commission Act 2018 seek to allow authorised persons to be assisted by 'other persons' when exercising powers or performing functions or duties in relation to monitoring and investigation.

1.9 In relation to proposed subsection 74B(5), the explanatory memorandum states that:

Given authorised officers may require expertise from a wide range of disciplines and specialist clinical experience to determine compliance with the responsibilities of approved providers, ranging from the provision of quality of care, the protection of user rights and prudential compliance, external engagement of these persons may be an appropriate means of sourcing expertise to ensure it remains current.^[5]

1.10 The explanatory memorandum provides a similar explanation for the other provisions regarding persons assisting authorised officers.

1.11 While the committee notes this explanation, the committee's consistent scrutiny position in relation to the exercise of coercive or investigatory powers is that persons authorised to use such powers should have the appropriate training and experience. The committee understands the need for flexibility in determining who may be appropriate 'other persons' in the particular circumstances of an investigation, however the committee remains concerned that 'other persons' will be authorised to assist in monitoring and investigation without any requirement for them to have the appropriate training or expertise to use the relevant monitoring or investigatory powers. The committee's concerns are heightened in this instance by the inclusion of provisions allowing for the use of force.

1.12 The committee therefore requests the minister's advice as to the appropriateness of amending the bill to require that any person assisting an authorised officer have appropriate skills, training or experience.

Broad delegation of administrative power^[6]

1.13 Item 90 of Schedule 2 seeks to insert new subsections 76(1A) and 76(1B) into the Aged Care Quality and Safety Commission Act 2018. These new subsections would allow the Aged Care Quality and Safety Commissioner to delegate any or all of their powers under Part 7B to a member of the staff of the Commission or an APS employee in the Department. The Commissioner would be required to be satisfied that the person has suitable training or expertise to properly perform the function or exercise the power.

1.14 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum. In relation to new subsections 76(1A) and 76(1B), the explanatory memorandum does not provide any information about why these powers and functions are proposed to be delegated to any Commission staff member or departmental employee.

1.15 Noting the above, the committee requests the minister's advice as to:

• why it is necessary to allow the Commissioner's powers under Part 7B to be delegated to any Commission staff member or APS employee of the department; and

• the appropriateness of amending the bill to provide some legislative guidance as to the scope of the powers that might be delegated, or the categories of people to whom those powers might be delegated.

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[1] Schedule 2, items 29 and 85, proposed Part 6.4 of the Aged Care Act 1997 and proposed Part 8A of the Aged Care Quality and Safety Commission Act 2018. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[2] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 80.

[3] Explanatory memorandum, p. 28.

[4] Schedule 2, items 29 and 85, proposed subsections 92-1(5) and 92-3(3) of the Aged Care Act 1997 and proposed subsections 74B(5) and 74D(3) of the Aged Care Quality and Safety Commission Act 2018. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[5] Explanatory memorandum, p. 45.

[6] Schedule 2, item 90, proposed subsections 76(1A) and (1B). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).