Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 [2022] AUSStaCSBSD 56 (7 September 2022)

• Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022
• Broad delegation of administrative powers6
• Significant matters in delegated legislation10
• Broad discretionary power Significant penalties12
• Significant matters in delegated legislation Privacy14
• Reversal of the evidential burden of proof19
• Immunity from civil or criminal liability21

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Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022

Purpose	This bill seeks to amend the Aged Care Act 1997, the Aged Care Quality and Safety Commission Act 2018, the Aged Care (Transitional Provisions) Act 1997, the National Health Reform Act 2011, the Veterans' Entitlements Act 1986, the Military Rehabilitation and Compensation Act 2004, and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 to implement several time critical aged care measures in response to recommendations of the Royal Commission into Aged Care Quality and Safety Final Report: Care, Dignity and Respect.
Portfolio	Health and Aged Care
Introduced	House of Representatives on 27 July 2022

Broad delegation of administrative powers^[6]

1.8 Item 53 of Schedule 1 to the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 (the Aged Care Bill 2022) seeks to insert proposed subsection 96-2(15A) into the Aged Care Act 1997 (the Aged Care Act) to provide that the Secretary may delegate all of their powers under subsection 44-3(2) of the Aged Care Act to a Senior Executive Service (SES) officer or acting SES officer in the department.

1.9 The committee raised scrutiny concerns in Scrutiny Digest 16 of 2021^[7] in relation to a similar provision of the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021^[8] (the Aged Care Bill 2021) which sought to empower the Secretary to delegate powers to a larger class of persons.^[9]

1.10 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 SES.

1.11 In its previous comments, the committee requested the minister's advice as to whether the Aged Care Bill 2021 could 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. New subsection 96-2(15A) of the Aged Care Act as inserted by the bill addresses the committee's concerns in this instance by limiting the class of people to whom the powers might be delegated to SES officers.

1.12 The committee welcomes provisions in the new bill which set a limit on the categories of people to whom the Secretary's functions and powers might be delegated.

1.13 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

Significant matters in delegated legislation^[10]

1.14 Schedule 3 to the bill seeks to amend the Aged Care Quality and Safety Commission Act 2018 (Aged Care Quality and Safety Act) to introduce a Code of Conduct that will apply to approved providers and their aged care workers and governing persons. Much of the detail related to the Code of Conduct is to be set out in the rules.

1.15 The committee raised scrutiny concerns in relation to similar provisions in the Aged Care Bill 2021 in Scrutiny Digest 16 of 2021, Scrutiny Digest 17 of 2021 and Scrutiny Digest 1 of 2022.^[11] The committee was concerned that these provisions left significant matters to delegated legislation by allowing key details related to the Code of Conduct to be set out in the rules, with little guidance within the bill as to how the rule-making power could be used. The committee reiterates those comments in relation to this bill.

1.16 In addition, the committee notes that item 10 of Schedule 3 to the Aged Care Bill 2022 seeks to insert proposed subsection 21(3B) to provide that the rules may make provision for matters relating to compliance with the Code of Conduct. The committee welcomes this additional detail.

1.17 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

Broad discretionary power
Significant penalties^[12]

1.18 Item 26 of Schedule 3 to the bill seeks to amend the Aged Care Quality and Safety Act to provide new powers for the Aged Care Quality and Safety Commissioner (the Commissioner) to impose banning orders on aged care workers and governing persons of approved providers.

1.19 This item appears to be identical to item 25 of Schedule 3 to the Aged Care Bill 2021. The committee raised scrutiny concerns in relation to the earlier bill in Scrutiny Digest 16 of 2021 and Scrutiny Digest 17 of 2021.^[13] The committee was concerned that the relevant provisions gave the Commissioner a broad discretionary power to impose conditions on banning orders with no guidance on the face of the bill as to how or when the power should be exercised. The committee reiterates those comments in relation to this bill.

1.20 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

Significant matters in delegated legislation
Privacy^[14]

1.21 Item 26 of Schedule 3 to the bill seeks to insert proposed section 74GI into the Aged Care Quality and Safety Act to require the Commissioner to establish and maintain a register of banning orders, including banning orders that are no longer in force. Proposed subsection 74GI(7) also provides that the rules may make provision for making the register, or other specified information, publicly available. The rules may also make provision for any other matters relating to the administration or operation of the register. The rules are disallowable instruments made by the Minister under section 77 of the Aged Care Quality and Safety Act.

1.22 The committee previously raised similar scrutiny concerns in relation to item 25 of Schedule 3 to the Aged Care Bill 2021 in Scrutiny Digest 16 of 2021 and Scrutiny Digest 17 of 2021.^[15] The committee was concerned that these provisions left significant matters relating to privacy to delegated legislation by allowing key details related to the register to be set out in the rules, with little guidance within that bill as to how the rule-making power could be used. The committee reiterates those comments in relation to the most recent bill.

1.23 The committee's consistent scrutiny view is that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. These include potential impacts on an individual's right to privacy. In this instance, the explanatory memorandum to the Aged Care Bill 2022 states:

It is not anticipated that the matters which may be included in the register prescribed by the rules will extend to any highly sensitive or highly personal information about the person subject to the banning order. However, in some instances, such as where an individual or business has a common name, it may be necessary to include further information, to publish an amount of information that is sufficient to ensure the person 76 can be identified. This would not extend, for example, to the nature of the incident/s that prompted the making of the banning order.
The purpose of this provision is to make information about banned individuals accessible to the public, including future employers of such individuals in the aged care sector. This aims to ensure the safety of care recipients by putting employers on notice of individuals who were found unsuitable to provide aged care or specified types of aged care services. This provision aligns with the approach taken under the NDIS (see section 73ZS of the NDIS Act) Publication of this information is considered reasonable, necessary and proportionate in order to protect the safety of vulnerable older Australians.^[16]

1.24 While these comments indicate that it is not 'anticipated' that the rules will require highly personal or highly sensitive information to be included in the register, the committee notes that there is nothing on the face of the bill which would prevent this. As the rules are a legislative instrument, the committee is concerned that the potential disclosure of information regarding persons subject to banning orders will not be subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.25 In addition, while acknowledging that this provision aligns with the approach taken in section 73ZS of the National Disability Insurance Scheme Act 2013, the committee notes that it raised similar concerns in relation to that provision.^[17] Moreover, the committee does not generally consider consistency with existing provisions to be a sufficient justification for including significant matters in delegated legislation.^[18]

1.26 The committee does, however, welcome the inclusion of proposed subsections 74GI(3) and (6) in item 26 of Schedule 3 to the Aged Care Bill 2022, which further clarify the scope of proposed section 74GI. Proposed subsection 74GI(3) provides that proposed subsection 74GI(1) does not apply in relation to banning orders which have been revoked or which have been set aside on reconsideration of the decision, or on review. Proposed subsection 74GI(6) provides that the rules must make provision for, or in relation to, the correction of information that is included in the register.

1.27 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

Reversal of the evidential burden of proof^[19]

1.28 Item 66 of Schedule 8 to the bill seeks to insert proposed section 215A into the National Health Reform Act 2011. This provision permits an official of the Pricing Authority to disclose certain information to the Aged Care Advisory Committee or a committee established under section 205 of that Act. Proposed subsection 215A(2) makes it an offence for an official to use such information or disclose it to another person, punishable by two years' imprisonment or a fine or both imprisonment and a fine. Proposed subsection 215(3) creates a defence to the offence if the disclosure is for certain purposes. This item appears to be identical to item 78 of Schedule 8 to the Aged Care Bill 2021.

1.29 The committee raised scrutiny concerns in relation to the earlier bill in Scrutiny Digest 16 of 2021 and Scrutiny Digest 17 of 2021.^[20] The committee was concerned that the offence-specific defence relating to the authorised use or disclosure of information inappropriately imposed an evidential burden on the defendant. The committee reiterates those comments in relation to this bill.

1.30 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

Immunity from civil or criminal liability^[21]

1.31 Item 3 of Schedule 9 to the bill seeks to insert proposed section 54-11 into the Aged Care Act to provide immunity from civil and criminal liability in relation to the use of restrictive practices in certain circumstances set out in delegated legislation. This item appears to be identical to item 3 of Schedule 9 to the Aged Care Bill 2021.

1.32 The committee raised scrutiny concerns in relation to the earlier bill in Scrutiny Digest 17 of 2021 and Scrutiny Digest 1 of 2022.^[22] The committee was concerned that the relevant provision inappropriately provided immunity from civil and criminal liability, noting that the immunity related to the use of rights restrictive measures and relevant circumstances were set out in delegated legislation. The committee reiterates those comments in relation to this bill.

1.33 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.

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[6] Schedule 1, item 53, proposed subsection 96-2(15). The committee draws senators' attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

[7] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021, pp. 1–2. See the committee's comments on item 51 of Schedule 1 to the bill.

[8] Introduced into the House of Representatives on 1 September 2021 and lapsed upon dissolution of the Parliament.

[9] Proposed subsection 96-2(14) sought to permit the Secretary to delegate all or any of their powers under Part 2.3 of the Aged Care Act to persons making assessments for the purposes of section 22-4 of that Act.

[10] Schedule 3, item 9, proposed section 18A; Schedule 3, item 10, proposed subsections 21(3A) and 21(3B); Schedule 3, item 11, proposed section 74AE. The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(iv).

[11] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021, pp. 4–5; Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 17 of 2021, 24 November 2021, pp. 51–53; Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2022, 4 February 2022, pp. 27–29. See the committee's comments on item 9 of Schedule 3 to the bill.

[12] Schedule 3, item 26, proposed subsections 74GC(2) and 74GD(1). The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (ii).

[13] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021, pp. 5–6; Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 17 of 2021, 24 November 2021, pp. 59–60.

[14] Schedule 3, item 26, proposed section 74GB. The committee draws senators' attention to this provision pursuant to Senate standing order 24(1)(a)(i) and (iv).

[15] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021, pp. 7–8; Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 17 of 2021, 24 November 2021, pp. 58–59.

[16] Explanatory memorandum, pp. 75–76.

[17] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 8 of 2020, 17 June 2020, pp. 8–9; Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 9 of 2020, 6 August 2020, pp. 42–44.

[18] See Senate Standing Committee for the Scrutiny of Bills, Guidelines, 2nd edition, July 2022, pp. 18‑–19 for further guidance.

[19] Schedule 8, item 66, proposed section 215A. The committee draws senators' attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[20] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2021, pp. 59–60.

[21] Schedule 9, proposed subsection 54-11(2). The committee draws senators' attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[22] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 17 of 2021, 24 November 2021, pp. 43–45; Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2022, 4 February 2022, pp. 29–30.