Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Bill 2020 [2020] AUSStaCSBSD 225 (9 December 2020)

• Chapter 1
• Comment bills
• Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Bill 2020
• Significant matters in delegated legislation1
• Significant matters in delegated legislation6
• Broad delegation of administrative powers11

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Chapter 1

Comment bills

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

Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Bill 2020

Purpose	This bill seeks to introduce a Serious Incident Response Scheme for residential aged care and flexible care delivered in a residential aged care setting
Portfolio	Health
Introduced	House of Representatives on 2 December 2020

Significant matters in delegated legislation^[1]

1.2 Item 2 of Schedule 1 seeks to add proposed section 54-3 at the end of Division 54 of the Aged Care Act 1997 in relation to reportable incidents. Proposed subsection 54-3(1) provides that the Quality of Care Principles ('the principles') must make provision for dealing with reportable incidents for the purposes of proposed subparagraph 54-1(1)(e)(i). Reportable incidents are set out in proposed subsection 54-3(2) and include incidents such as the unreasonable use of force or unlawful sexual conduct inflicted on a residential care recipient. Proposed subsection 54-3(5) provides that despite proposed subsection 54-3(2), the principles may provide that a specified act, omission or event involving a residential care recipient is or is not a reportable incident.

1.3 Proposed subsection 54-3(6) provides that the principles may provide for matters including the manner and period within with reportable incidents must be reported to the Quality and Safety Commissioner,^[2] action that must be taken,^[3] and authorising the provision of related information to the Minister, the Quality and Safety Commissioner or other specified bodies.^[4] Proposed subsection 54-3(7) specifies a range of actions that could be taken under the principles such as requiring an aged care provider to arrange and pay for an independent investigation into the reportable incident.

1.4 The committee's view is that significant matters, such as how reportable aged care incidents are managed, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum provides little explanation as to why these matters are left to delegated legislation. However, in relation to proposed subsection 54-3(5) the explanatory memorandum explains:

This will allow for the Quality of Care Principles to provide clarity about reportable incidents and to specify certain events that do not fall within the definition of a reportable incident. For example, circumstances involving a staff member raising their voice to attract attention or to speak to a residential care recipient with hearing difficulties could be specified in the Quality of Care Principles as not being a reportable incident.^[5]

1.5 While acknowledging this explanation, the committee considers that the rationale for leaving these significant matters to the principles is insufficiently set out in the explanatory memorandum. From a scrutiny perspective, in light of the serious nature of a reportable incident, the committee considers that these matters should be set out on the face of primary legislation and should be subjected to the full range of parliamentary oversight.

1.6 In light of the above, the committee requests the minister's advice as to why it is considered necessary and appropriate to leave significant matters, such as how reportable aged care incidents are managed, to delegated legislation.

Significant matters in delegated legislation^[6]

1.7 Item 3 of Schedule 1 seeks to insert proposed subsection 21(7) into the Aged Care Quality and Safety Commission Act 2018. Proposed subsection 21(7) provides that rules may prescribe matters in relation to how the Commissioner deals with reportable incidents. The rules may include, but are not limited to, the following:

• action that may be taken by the Commissioner including requiring an approved provider to do something;^[7]

• circumstances in which the Commissioner may authorise or carry out an inquiry on a reportable incident on their own initiative;^[8] and

• how information given to the Commissioner about a reportable incident may be dealt with.^[9]

1.8 The committee's view is that significant matters, such as how the Commissioner deals with reportable aged care incidents, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum states:

This is a broad provision to ensure that there is flexibility to allow the Commissioner to ensure the safety needs of aged care consumers are met.^[10]

1.9 While noting this explanation, the committee has generally not accepted a desire for administrative flexibility to be a sufficient justification, of itself, for leaving significant matters to delegated legislation. It is unclear to the committee why at least high-level guidance in relation to these matters cannot be provided on the face of the bill.

1.10 In light of the above, the committee requests the minister's advice as to:

• why it is considered necessary and appropriate to leave the way in which the Commissioner deals with reportable aged cared incidents to delegated legislation; and

• whether the bill can be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.

Broad delegation of administrative powers^[11]

1.11 Schedule 2 seeks to insert a range of provisions into the Aged Care Quality and Safety Commission Act 2018 which are enforceable under the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act):

• proposed section 74EA in relation to civil penalty provisions enforceable under Part 4 of the Regulatory Powers Act;

• proposed section 74EB in relation to infringement notices under Part 5 of the Regulatory Powers Act;

• proposed section 74EC in relation to undertakings enforceable under Part 6 of the Regulatory Powers Act; and

• proposed section 74ED in relation to injunctions enforceable under Part 7 of the Regulatory Powers Act.

1.12 The Commissioner is the authorised person for the purposes of the Act for proposed sections 74EA, 74EB, 74EC and 74ED.

1.13 In addition, item 2 of Schedule 2 seeks to insert proposed section 74EE into the Aged Care Quality and Safety Commission Act 2018, to provide that the Commissioner may issue compliance notices in certain circumstances. Item 3 of Schedule 2 seeks to insert proposed section 74GA which provides the Commissioner the power to require a person to give information or documents.

1.14 The Commissioner may delegate any of these functions or powers provided for in proposed sections 74EA, 74EB, 74EC, 74ED, 74EE and 74GA to any member of staff of the commission.^[12]

1.15 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 this instance, the explanatory memorandum provides no justification as to why it is necessary and appropriate for these powers to be delegated to any member of staff of the commission.

1.16 The committee is concerned that any staff member of the commission may be appointed as an authorised applicant, infringement officer or authorised person in relation to Parts 4 to 7 of the Regulatory Powers Act or may give written compliance notices or notices requiring the giving of information or the production of documents. Furthermore, it appears to the committee that there is no requirement for the Commissioner to be satisfied that the staff member possesses appropriate qualifications or training in the use of the relevant functions and powers.

1.17 The committee requests the minister's advice as to:

• why it is considered necessary and appropriate to allow for the delegation of any or all of the Commissioner's functions or powers under the Regulatory Powers Act and proposed sections 74EE and 74GA to any member of staff of the commission; and

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

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[1] Schedule 1, item 2, proposed section 54-3. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[2] Paragraph 54-3(6)(a).

[3] Paragraph 54-3(6)(b).

[4] Paragraph 54-3(6)(c).

[5] Explanatory memorandum, p. 9.

[6] Schedule 1, item 3, proposed subsection 21(7). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[7] Paragraph 21(7)(a).

[8] Paragraph 21(1)(b).

[9] Paragraph 21(7)(c).

[10] Explanatory memorandum, p. 13.

[11] Schedule 2, item 1, proposed section 74ED. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[12] As per subsection 76(1) of the Aged Care Quality and Safety Commission Act 2018.