Aged Care Legislation Amendment (Improved Home Care Payment Administration No 2) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 216 (2 December 2020)

• Aged Care Legislation Amendment (Improved Home Care Payment Administration No. 2) Bill 2020
• Power for delegated legislation to modify primary legislation (Henry VIII clause) Retrospective application10

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Aged Care Legislation Amendment (Improved Home Care Payment Administration No. 2) Bill 2020

Purpose	This bill seeks to amend the Aged Care Act 1997 and the Aged Care (Transitional Provisions) Act 1997 to improve the administration arrangements of paying home care subsidy to approved providers
Portfolio	Health
Introduced	House of Representatives on 21 October 2020
Bill status	Before the House of Representatives

Power for delegated legislation to modify primary legislation (Henry VIII clause)
Retrospective application^[1]

2.28 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to allow the rules made under item 16 to modify any Act or instrument; and

• whether the bill can be amended to ensure that any modifications to primary or delegated legislation made by the rules, and the retrospective application of the rules, cannot operate to disadvantage any person.^[11]

Minister's response^[12]

2.29 The minister advised:

The purpose of the Bill is to improve the administration arrangements of paying home care subsidy to approved providers on behalf of older Australians.
The Bill will not affect the eligibility of home care recipients for home care subsidy or the amount of home care subsidy that is payable for eligible home care recipients. Sub-Item 16(1) of the Bill permits rules to be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by the Bill. Any rules that may be made are therefore constrained to dealing with these matters.
Sub-item 16(3) of the Bill sets out that the rules may provide that, during or in relation to the first 12 months after the commencement of the Item, the Act or any other Act or instrument has effect with any modifications prescribed by the rules.
Given the complexity of the home care payment administration system and the extent of the proposed changes-introduced by the Bill, it Is considered necessary and appropriate to include powers to permit legislative amendments to be made to address any unanticipated consequences as a result of the transition to the new payment administration arrangements.
As set out in the Explanatory Memorandum, sub-item 16(3) of the Bill is intended to deal expeditiously with matters which may unintentionally cause detriment to home care recipients, or home care providers, under the new home care payment administration arrangements.
The power in item 16 is considered necessary to respond to instances where detriment may result to home care recipients or home care providers and it is appropriate to address such detriment before primary legislative amendments to the Aged Care Act 1997 can be undertaken.
Any rules made under item 16 of the Bill would be of a transitional nature only and relate to the amendments or repeals made by the Bill, or be otherwise relevant to home care subsidy. Further, such rules could only be made during the first 12 months after the commencement of the item.
Rules made under this item would not adversely affect any individuals because they would only be made in circumstances where it was necessary to address detrimental consequences of the Bill. As a result, any rules (if made) would not operate to disadvantage any person.
The absence of item 16 of the Bill may result in vulnerable older Australians being without adequate care for a significant period of time if there was an unintended detrimental consequence of the Bill.
Any subordinate legislation made under item 16 of the Bill would be disallowable under section 42 of the Legislation Act 2003 and subject to review by the Senate Standing Committee for the Scrutiny of Delegated Legislation.
After consideration of the concerns raised by the Committee, I am satisfied that the approach in item 16 of the Bill is reasonably necessary and appropriate, without any further legislative amendments, for the reasons set out above.

Committee comment

2.30 The committee thanks the minister for this response. The committee notes the minister's advice that rules made under item 16 of the bill would only be made in circumstances where it was necessary to address detrimental consequences of the bill, and that, as a result, such rules would not operate to disadvantage any person. The committee also notes the minister’s advice that the rules could only be made during the first 12 months after the commencement of item 16, and would be of a transitional nature only, relating to the amendments or repeals made by the bill, or being otherwise relevant to home care subsidy.

2.31 While noting this advice, the committee reiterates its scrutiny concerns that there is no requirement on the face of the bill that the transitional rules must be beneficial, or that the retrospective application of the transitional rules must only be beneficial.

2.32 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister, namely, that rules made under item 16 of the bill would not operate to disadvantage any person, be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials 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).

2.33 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing rules made under item 16 of the bill to modify any Act or instrument.

2.34 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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10 Schedule 1, item 16. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[11] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 7-9.

[12] The minister responded to the committee's comments in a letter dated 24 November 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest