Inspector-General of Aged Care Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 85 (10 May 2023)

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Purpose	This bill seeks to support the establishment of the new Inspector-General of Aged Care, which will provide independent oversight of the aged care system.
Portfolio	Health and Aged Care
Introduced	House of Representatives on 22 March 2023
Bill status	Before House of Representatives

Reversal of the evidential burden of proof^[22]

2.41 The bill provides the new Inspector-General of Aged Care with extensive reporting functions, including to report to the Minister for Health and Aged Care and to the Parliament on the Commonwealth’s administration of an aged care law, the operation of an aged care law, the exercise of functions and powers under an aged care law, systemic issues relating to an aged care law, any systems administering aged care laws, and the implementation by the Commonwealth of the recommendations of the Aged Care Royal Commission.^[23] If the Inspector-General conducts a review into one of these matters they must prepare a draft report,^[24] which must be provided to certain affected persons prior to being finalised.^[25]

2.42 Subclause 23(1) of the bill sets out a new offence if a person receives a draft report, an extract of a draft report, or a document relating to a preliminary finding or recommendation of a draft report and subsequently discloses that information.

2.43 Subclause 23(2) provides that it is a defence to this new offence if the disclosure was made:

2.44 Similarly, subclause 63(1) of the bill provides that an entrusted person^[26] commits an offence if they have obtained protected information in the course of their duties as an entrusted person, and they use or disclose that information. It is a defence if the entrusted person uses or discloses the information under clause 64, which includes, among other things that the disclosure was:

2.45 Both offences would be punishable by up to two years imprisonment, 120 penalty units, or both. A defendant bears an evidential burden in relation to these defences.

2.46 In Scrutiny Digest 4 of 2023 the committee requested the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance.^[28]

2.47 The Minister for Aged Care (minister) advised that it is appropriate to use offence-specific defences in subclauses 23(2) and 63(2) because it aligns with the Guide to Framing Commonwealth Offences, and it ensures consistency with secrecy offences in other aged care laws. The minister advised that the circumstances of a defendant's use or disclosure of information is peculiarly within their knowledge, as only the defendant would be aware of the information they disclosed, the recipient, and the manner and purpose of its disclosure. Further, it would impose significant cost and difficulty upon the prosecution to disprove that the conduct was not authorised under any circumstances.

2.48 The minister further advised that the use of offence-specific defences ensures consistency with other aged care laws, and this is likely to result in enhanced clarity and compliance, particularly for subclause 23(2) which is likely to apply to persons subject to the secrecy provisions in the Aged Care Act 1997 (AC Act) and the Aged Care Quality and Safety Commission Act 2018 (ACQSC Act).

2.50 The committee notes the minister's advice that it is considered that the use of offence-specific defences in this case aligns with the Guide to Framing Commonwealth Offences as the use and disclosure of information defendant would be peculiarly within the defendant's knowledge, and it would be significantly more costly for the prosecution to establish these matters.

2.51 The committee reiterates, however, that while some matters may be peculiarly within the defendant's knowledge, such as whether a disclosure was made to a person's lawyer, not all the matters listed in the defence are peculiarly within the defendant's knowledge. For example, whether the disclosure was required or authorised by an Australian law, whether it was made with the consent of the Inspector-General, or whether the information had already been lawfully made available to the public, would likely be matters readily ascertainable by the prosecution.

2.52 The committee also takes this opportunity to note that consistency with existing aged care legislation is not a sufficient justification for reversing the evidential burden of proof.

2.53 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof under subclauses 23(2) and 63(2).

Coercive powers^[30]

2.54 Clause 50 of the bill provides that an authorised official may enter a premises for the purpose of performing the Inspector-General's monitoring, investigation and reporting functions under paragraphs 10(1)(a) to (d).

2.55 Paragraph 50(1)(a) provides that an authorised official may enter and remain on a premises controlled by the Commonwealth at all reasonable times. Paragraph 50(1)(b) provides that an authorised official may enter other kinds of premises at all reasonable times if the Inspector-General has issued a valid certificate stating that they may enter the premises. The Inspector-General may issue such a certificate if they are satisfied that it is reasonably necessary for the authorised official to have access to the premises in order to carry out the reporting functions referred to above.

2.56 The authorised officer must provide notice that they intend to enter the premises.^[31] Once on the premises they must be given full and free access to documents or other property, and may examine and take copies of this material.^[32] In addition, the occupier must provide reasonable facilities and assistance.^[33]

2.57 In Scrutiny Digest 4 of 2023 the committee requested the minister's advice as to why it is necessary and appropriate to provide a coercive power to enter non-Commonwealth premises without also providing that the framework set out at Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 applies.^[34]

2.58 The minister advised that the scope of the entry power, and its alignment to a comparable oversight framework, are necessary and appropriate for the Inspector-General's functions and context. The scope is necessary and appropriate to enable the Inspector-General to perform their functions in clause 10, which relate to oversight of the Commonwealth's administration of aged care laws, systems and funding agreements. The minister considered that the Inspector-General could not properly fulfil these functions without access to non-Commonwealth premises involved in the operation of aged care laws and programs.

2.59 The minister advised that non-Commonwealth premises could include those of 'quality assessors' under the ACQSC Act, who conduct site audits on behalf of the Aged Care Quality and Safety Commission, and recipients of advocacy grants made under part 5.5 of the AC Act.

2.62 The committee notes the minister's advice that the A-G Act, rather than the RP Act, is considered to be a more appropriate comparable oversight framework in the context of the Inspector-General's broader oversight functions which do not include investigating individual compliance.

2.63 Nevertheless, the committee considers the power to enter and remain on premises without any explicit safeguards, such as requiring consent or a warrant, to be coercive in the context of non-Commonwealth premises. The committee does not consider that the minister's response has sufficiently justified why no safeguards are required in relation to the exercise of this power. While acknowledging the minister's advice that the concept of a non-Commonwealth premises is intended to be similar in scope to the term 'Commonwealth partner' within the A-G Act, the committee notes that there appears to be considerable potential for the wording at paragraph 50(1)(b) to be interpreted more broadly than this latter concept. As such, it would be appropriate to either introduce safeguards on the use of the power to enter a non-Commonwealth premises or to limit the scope of paragraph 50(1)(b) so that it explicitly covers entities related to the Commonwealth as in the A-G Act definition of 'Commonwealth partner'.

2.64 At a minimum, the intention that paragraph 50(1)(b) be read with a limited scope should be explicitly set out within the bill's explanatory memorandum.

2.65 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister 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).

2.66 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of including a coercive power to enter non-Commonwealth premises in clause 50 of the bill.

Protection from civil and criminal liability
Reversal of the evidential burden of proof^[36]

2.67 Clause 58 of the bill provides that a person is not subject to any civil, criminal or administrative liability, or subject to a contractual or other remedy, for making a disclosure that qualifies for protection under clause 57. Clause 58 also grants a person qualified privilege in proceedings for defamation in certain circumstances. Clause 57 provides protection for disclosures made to an official of the Office of the Inspector-General of Aged Care, or a disclosure made in compliance with a request, or mandated requirement, of the Inspector-General. Clause 59 provides that the protection against liability does not apply if a person knowingly made a false or misleading statement.

2.68 This provision therefore removes any common law right to bring an action to enforce legal rights, unless it can be demonstrated that the person knowingly made a false or misleading statement.

2.69 Further, paragraph 61(1)(a) of the bill provides that if a person wants to rely on the protection afforded by clause 58 in respect of criminal proceedings, that person bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that clause 58 applies to them. This has the effect of reversing the evidential burden of proof.

2.70 In Scrutiny Digest 4 of 2023 the committee requested the minister's advice as to:

2.71 The minister advised that the provision of comprehensive information to the Inspector-General is critical to effective oversight of the aged care system, addressing systemic issues, and ultimately achieving improved outcomes for older Australians receiving aged care. In the absence of strong protections for individuals who provide assistance, the minister advised there is a substantial risk that the Inspector-General's performance of their functions would be hampered due to an individual deciding to withhold important information.

2.72 The minister advised that clause 57 provides that only a disclosure made to an official of the Office of the Inspector-General can enliven the immunity, that is, where the Inspector-General is actively seeking information. The minister advised that an individual is still able to bring a legal action in circumstances where disclosures are made with malicious intent or are false or misleading as provided for in clause 59. The minister further advised that the immunity applies only to the act of disclosure itself, with any actions disclosed by the person and their liability for those actions remaining unaffected by the immunity as outlined in clause 60.

2.73 In relation to the reversal of the evidential burden of proof, the minister advised that clause 58 is not an offence-specific defence. The minister noted that it provides a broad immunity to persons who have made a qualifying disclosure from civil, criminal or administrative liability, or being subject to a contractual or other remedy. Given the breadth of possible criminal and civil matters in which a person could be involved, it is not reasonable to assume that a prosecutor or plaintiff would know that an immunity may apply.

2.75 The committee notes the minister's advice that the immunity is targeted in scope to disclosures made in response to a request by the Inspector-General, does not cover disclosures made with malicious intent or are false or misleading, and only applies to the act of disclosure itself.

2.76 The committee further notes the minister's advice that given the breadth of possible criminal and civil matters a person may be involved in it is not reasonable for a prosecutor or plaintiff to know whether an immunity under clause 58 applies.

2.77 However, the committee notes that the relevant test is not whether it is reasonable to expect a prosecutor to know whether an immunity applies but, rather, whether this is a matter that would be peculiarly within the knowledge of the defendant. In this instance the matter does not appear to be one that would be peculiarly within the defendant's knowledge. However, given the significant difficulties in the prosecution obtaining this information the reversal may nevertheless be appropriate.

2.78 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister 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).

2.79 In light of the information provided, the committee makes no further comment on this matter.

[21] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Inspector-General of Aged Care Bill 2023, Scrutiny Digest 5 of 2023; [2023] AUSStaCSBSD 85.

[22] Subclauses 23(2) and 63(2). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

[29] The minister responded to the committee's comments in a letter dated 19 April 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest .

[30] Clause 50. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[35] The minister responded to the committee's comments in a letter dated 19 April 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest .

[36] Paragraph 61(1)(a). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[38] The minister responded to the committee's comments in a letter dated 19 April 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest .

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests