Aged Care Amendment (Implementing Care Reform) Bill 2022 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 88 (26 October 2022)

• Aged Care Amendment (Implementing Care Reform) Bill 2022
• Significant matters in delegated legislation Broad discretionary power1

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

Aged Care Amendment (Implementing Care Reform) Bill 2022

Purpose	This bill seeks to amend the Aged Care Act 1997 to implement a series of measures intended to enable meaningful, practical improvements to the delivery of aged care services, to improve the means for care recipients and their families to assess the relative quality of service delivery by care providers and at individual care facilities, and to provide greater oversight and understanding of what funds are being used for.
Portfolio	Health and Aged Care
Introduced	House of Representatives on 27 July 2022
Bill status	Before the Senate

Significant matters in delegated legislation
Broad discretionary power^[1]

2.2 The bill seeks to insert a new requirement that an approved provider ensures that at least one registered nurse is on site, and on duty, at all times at a residential facility. This new requirement would apply to all approved providers who are providing residential care,^[2] or flexible care,^[3] at a residential facility.

2.3 Proposed subsection 54-1A(3) of the bill gives a broad power to grant exemptions to this new requirement within delegated legislation.

2.4 In Scrutiny Digest 4 of 2022 the committee requested the minister's advice as to:

• why it is considered necessary and appropriate to provide a broad power to make provision for, or in relation to, the granting of an exemption from proposed section 54-1A in delegated legislation; and

• whether the bill can be amended to include at least high-level guidance on the face of the primary legislation as to the circumstances in which an exemption may be granted and general guidance in relation to the conditions which may apply to an exemption.^[4]

Minister's response^[5]

2.5 The minister advised that the inclusion of arrangements that allow for exemptions from the requirement set out in proposed subsection 54-1A(2) is consistent with the recommendations of the Royal Commission into Aged Care Quality and Safety. The minister advised that allowing for these matters to be dealt with in delegated legislation will ensure the flexibility necessary to enable the Government to evaluate the impact of the measure and promptly respond to unforeseen risks, concerns or omissions, aligning with community expectations to ensure quality care for all older Australians in residential aged care.

2.6 The minister further advised that the inclusion of these matters in delegated legislation provides for thorough consultation with experts and the residential aged care sector. The minister advised that this will ensure that any resulting framework appropriately protects the integrity of the measure without leading to perverse behaviour and outcomes.

2.7 Additionally, the minister advised that the Government moved amendments to the bill that were agreed by the House of Representatives on 8 September 2022. As a result, the bill now provides greater clarity as to the arrangements that the Quality of Care Principles may make provision for in relation to exemptions from the responsibility.^[6] A relevant extract of the minister's response is set out below:

Firstly, the Bill now provides that the Secretary of the Department of Health and Aged Care (or a delegate) will be the specified decision-maker for the purposes of granting an exemption. The decision will likely relate to factors such as availability of workforce, the size of the facility and its location. The department will work with the Aged Care Quality and Safety Commission on any aspects of the process relating to quality and safe care.
Further, when granting an exemption, the Bill now provides that the decision-maker must be satisfied the provider has taken reasonable steps to ensure the clinical care needs of the care recipients in the facility will be met when making a decision to grant an exemption. This will ensure the intention of the legislation, that older Australians living in residential aged care have access to the nursing care they deserve, is at the centre of any decision made to grant an exemption.
The Bill also now provides that an exemption must not be in force for more than 12 months. This will ensure exemptions are regularly reviewed and will encourage approved providers to continue to strive to meet the new responsibility. More than one exemption can be granted to an approved provider, meaning that should an exemption be required for longer than 12 months in respect of a residential facility, an approved provider would be able to re-apply.
Finally, a new provision has been inserted to require that, where an exemption is provided, the Secretary must make information about the exemption publicly available. This will further incentivise providers to meet the requirement, rather than seek an exemption. It will also increase transparency, providing older people and their families with information so they can make more informed decisions.

Committee comment

2.8 The committee thanks the minister for this response.

2.9 The committee welcomes the amendments made by the bill which provide guidance in relation to the circumstances in which an exemption may be granted. The committee particularly welcomes amendments which clearly identify the Secretary as the relevant decision-maker and amendments which limit exemptions to a maximum period of 12 months.

2.10 The committee thanks the minister for moving amendments to the bill which appear to address the committee's scrutiny concerns regarding the broad power to grant exemptions within delegated legislation.

2.11 In light of the information provided, the committee leaves to the Senate as a whole the appropriateness of this matter.

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[1] Schedule 1, item 2, proposed subsections 54-1A(3) and (4). The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).

[2] Defined by 41-3 of the Aged Care Act.

[3] As specified in the Quality of Care Principles.

[4] Senate Scrutiny of Bills Committee, Scrutiny Digest 4 of 2022, pp. 1–3.

[5] The minister responded to the committee's comments in a letter dated 28 September 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 6 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.

[6] See also the Senate Community Affairs Legislation Committee inquiry into the Aged Care Amendment (Implementing Care Reform) Bill 2022 [Provisions], 2 September 2022.