Aged Care Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 202 (9 October 2024)

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

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Aged Care Bill 2024^[3]

Purpose	This bill seeks to amend the legislative framework for the Commonwealth aged care system, including by: • providing legislative authority for the delivery of funded aged care services to individuals; • setting out the eligibility requirements for individuals seeking to access funded aged acre services; • setting out conditions of registration for providers and key obligations of registered providers and aged care workers; • providing for funding arrangements for funded aged care services; • establishing the governance and regulatory framework for the Commonwealth aged care system; • authorising the use and disclosure of protected information in certain circumstances and providing for whistleblower protections; and • providing pathways for review of decisions made under the bill.
Portfolio	Health and Aged Care
Introduced	House of Representatives on 12 September 2024
Bill status	Before the House of Representatives

Significant matters in delegated legislation
Broad discretionary powers^[4]

1.2 The bill seeks to provide a new framework for the administration of funded aged care services. Many matters of significance to this regime are being left to delegated legislation including, for example:

1.3 The committee's view is that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. A legislative instrument made by the executive is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. The explanatory memorandum provides minimal justifications for leaving significant aspects of the scheme to delegated legislation.

1.4 The committee appreciates that this bill is seeking to set out a significant regulatory scheme and it is not possible for all matters to be contained in primary legislation, noting the importance of expert-led, responsive approaches to ensure the safety and quality of aged care services. However, the committee expects that the explanatory memorandum should have explained how the extensive use of delegated legislation in this scheme does not undermine the parliament's capacity to scrutinise the envisaged policy directions of the regulatory scheme. The explanatory memorandum should have explained what the overall balance is and why that balance has been struck, and then also explain whether any particular details which are of presumptive significance (such as protections in relation to undue trespass on rights and liberties and review rights) have been left to delegated legislation. While some matters may be appropriate to be left to delegated legislation, others may not be, but this has not been explored in the explanatory memorandum. Instead, the explanatory memorandum provides only minimal justification regarding the need for flexibility in relation to some of these matters.^[11]

1.5 In addition, the committee is concerned that as a result of leaving some of these significant matters to delegated legislation, broad discretionary powers and functions may be conferred on officials and bodies without parliamentary oversight or approval of those delegations.

1.6 The committee has previously raised similar concerns in relation to recent aged care legislation^[12] and is concerned that this systemic scrutiny issue is being repeated in the current version of these provisions.

1.7 The committee acknowledges this is a significant regulatory scheme and there is likely a need for certain matters to be left to delegated legislation. However, the committee is concerned that large elements of this scheme, including those that affect personal rights and liberties, are being left to delegated legislation without sufficient explanation, including an assessment of the balance between the need for administrative flexibility and the importance of parliamentary oversight.

1.8 The committee therefore draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving significant aspects of the aged care scheme to delegated legislation.

1.9 The committee also draws these matters to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Undue trespass on rights and liberties
Significant matters in delegated legislation
Broad discretionary powers
Immunity from civil and criminal liability^[13]

1.10 The bill provides that a restrictive practice in relation to an individual is any practice or intervention that has the effect of restricting the rights or freedom of movement of that individual.^[14] The practices or interventions that are to be classified as restrictive practices will be set out in the rules made under the bill.^[15] The bill further provides that when specifying restrictive practices the rules must require that the practice is only used as a last resort to prevent harm to the individual or other persons, and after consideration of the likely impact of the use of the practice on the individual.^[16] Further safeguards that must be set out in the rules on the use of restrictive practices are provided on the face of the bill.^[17] The bill also provides that the rules may set out the persons or bodies who may give informed consent to the use of a restrictive practice for individuals who lack capacity to consent,^[18] and may also provide that requirements in the rules do not apply if the use of a restrictive practice is necessary in an emergency.^[19] Further, the bill provides that it would be a condition of registration for aged care providers to comply with any requirements prescribed by the rules in relation to the use of restrictive practices.^[20]

1.11 The committee's consistent scrutiny view is that significant matters, such as when restrictive practices can be used in aged care settings, should be contained on the face of the primary legislation unless a sound justification for the use of delegated legislation is provided. In relation to this, the explanatory memorandum states:

To promote person-centred approaches, it is essential that legislative obligations are flexible and adaptable to changing contexts. Including matters in delegated legislation, such as definitions for the practices or interventions deemed to be restrictive practices, will allow for responsiveness in relation to the regulation of restrictive practices in aged care. As it is intended that all forms of restrictive practices are accurately captured, it is appropriate that the legislation relating to restrictive practices can be adapted and modified in a timely manner in response to emerging concerns about practices or interventions that are considered restrictive and may be inappropriate and/or harmful to an individual receiving funded aged care services. Allowing some flexibility to promptly respond to these unforeseen risks, concerns and omissions aligns with community expectations and the key aim of regulating restrictive practices, which is to protect individuals accessing funded aged care services from the use of such practices other than in accordance with the limited circumstances to be set out in the rules.^[21]

1.12 The committee has generally not accepted a desire for administrative flexibility to be a sufficient justification for leaving significant elements of a legislative scheme to delegated legislation. The committee's concerns in this instance are heightened noting the potentially significant impact of the inappropriate use of restrictive practices and the vulnerability of the persons to whom they may be applied. A legislative instrument is not subject to the same level of parliamentary scrutiny as amendments to primary legislation.

1.13 Additionally, the bill provides that the rules may provide that a requirement of the rules does not apply if the use of a restrictive practice is necessary in an emergency. The committee considers that this provides the minister with a broad discretionary power to determine, in delegated legislation, when the requirements for the use of a restrictive practice no longer apply. The committee notes that there is no guidance on the face of the bill as to what would constitute an emergency or who would determine that an emergency is occurring. The committee has significant scrutiny concerns in relation to this ability to override any of the statutory requirements in circumstances when there is no guidance on the face of the primary legislation as to what may be considered an emergency. The committee notes that certain considerations set out in the bill, such as that a restrictive practice must be used in the least restrictive form and for the shortest time,^[22] would remain relevant during an emergency situation.

1.14 In addition, the committee is concerned that the bill provides that the persons and bodies who may consent to the use of restrictive practices for individuals deemed to lack capacity will be left to delegated legislation. This is an extremely significant matter and, while noting the advice in the explanatory memorandum that this is intended to address issues regarding the interaction with current State and Territory consent laws, the committee considers that these details should have been set out on the face of the bill for parliamentary consideration. At a minimum, guidance should have been included on the face of the bill as to the considerations and safeguards that apply when identifying persons and bodies who may consent to restrictive practices in recognition of the significant trespass on rights and liberties that these practices represent.

1.15 The committee raised similar concerns in relation to the use of restrictive practices in emergencies when they were amended in 2021,^[23] and it is concerning that the current iteration of these provisions replicates the same scrutiny concerns that were present.

1.16 Further, the bill provides civil and criminal immunity for entities who use restrictive practices if informed consent was given by a person or body as prescribed by the rules (where individuals are deemed to lack capacity to consent) and the practice was used in accordance with these requirements.^[24] The explanatory memorandum explains:

This clause replicates the immunity provision which was introduced by the Aged Care and Other Legislation (Royal Commission Response) Act 2022 to ensure that registered providers and relevant individuals are not liable to any civil or criminal action in circumstances where they have adhered to the requirements for the use of restrictive practices set out in clause 18. This is because the proposed consent arrangements may result in a registered provider, or relevant individual, relying on consent by a person who is authorised to give that consent under the Commonwealth’s aged care laws, but who may not have the requisite authority under the relevant State or Territory laws.

This immunity will only apply where restrictive practices have been used in a way that is consistent with the requirements under the rules. This includes, for example, that restrictive practices were used as a last resort, only to the extent that was necessary, for the shortest time and in the least restrictive form, and to prevent harm to the individual accessing funded aged care services or another person. The immunity afforded by this clause will not apply where the use of the restrictive practice is not compliant with the requirements set out in the rules, or where the restrictive practice is used in a manner that is not in accordance with the consent that has been provided (e.g., the type of restrictive practice, the way in which it is applied, or the time specified for use of the restrictive practice was not in accordance with the consent given). This will provide additional protection to individuals receiving funded aged care services and ensure that the scope of this immunity is strictly limited to use that aligns with the consent that has been provided. This provision is not intended to provide a broad immunity to negligence in respect of the use of a restrictive practice. It is only intended to permit registered providers and those involved in the use of restrictive practices to rely on consent from a restrictive practices substitute decision maker as prescribed by the rules.^[25]

1.17 The committee raised concerns in relation to amendments that first introduced this immunity from liability and has consistently raised scrutiny concerns regarding provisions that provide persons with immunity from civil or criminal liability.^[26] The committee acknowledges the explanation provided for the application of this immunity. However, the committee notes that this immunity means that where a restrictive practice is used on a person who is deemed to lack capacity, they would have no remedy for the use of that practice if done with the consent of another, whereas those who have capacity would have access to a remedy. The appropriateness of this immunity also relies on the breadth of who is able to give consent to the use of the restrictive practice – which is a matter which will be provided for in the rules. The committee’s concerns are heightened as immunity is provided for in relation to criminal as well as civil proceedings.

1.18 Noting the potential for the use of restrictive practices to impact on personal rights and liberties, the committee requests the minister’s advice as to:

1.19 The committee draws the attention of senators and leaves to the Senate as a whole the appropriateness of the immunity from civil and criminal liability in clause 168 of the bill.

Undue trespass on rights and liberties
No invalidity clause^[27]

1.20 The bill sets out a Statement of Rights of persons seeking and receiving aged care.^[28] The Statement includes rights such as independence, equitable access, and quality and safe funded aged care services. However, the bill also provides that while an individual is entitled to these rights and that Parliament’s intention is for providers to take all reasonable and proportionate steps to act compatibly with these rights, the rights and duties are not enforceable by proceedings in a court or tribunal.^[29]

1.21 The bill also sets out a Statement of Principles of the core values that underpin the aged care system, including, for example, a person-centred approach, valuing workers and carers, transparency and financial sustainability.^[30] As with the Statement of Rights, the bill provides that while Parliament’s intention is for stakeholders to have regard to the Principles, the rights and duties are not enforceable by proceedings in a court or tribunal.^[31] Further, the bill provides that a failure to comply does not affect the validity of any decision and is not a ground for the review or challenge of any decision.^[32]

In line with the approach of the Royal Commission, which recommended that these rights should not be separately and directly enforceable in the courts, subclause 24(3) clarifies that nothing in clause 23 or clause 24 create rights or duties that are enforceable by proceedings in a court or tribunal. This is because the Statement of Rights is broad, and a one-size-fits-all response to a possible breach would not be appropriate. However, this does not limit individuals from raising a complaint with the Complaints Commissioner if they feel that their rights have not been upheld while accessing, or seeking to access, funded aged care services.

Where a registered provider has failed to take reasonable and proportionate steps to ensure services are delivered in a manner compatible with the Statement of Rights, it is also likely they have failed to comply with other obligations under the Bill and may be subject to a civil penalty for breaching a condition of their registration. For example, conduct which is inconsistent with the Statement of Rights may also be inconsistent with obligations of workers and providers under the Code and aspects of the Quality Standards. This is outlined further in Chapter 3.^[33]

1.23 In relation to the Statement of Principles the explanatory memorandum states:

Subclause 26(2) makes it clear that nothing in this Division of the Bill creates a right or duty that is enforceable by proceedings in a court or tribunal. This is because the Statement of Principles is intended to provide high level guidance of the core values that underpin every part of the aged care system.

Subclause 26(3) also makes it clear that a failure to comply with this Division of the Bill does not affect the validity of any decision, and is not a ground for the review or challenge of any decision. This clause does not negate those bodies bound by the Statement of Principles in subclause 26(1) from having to have regard to the principles when performing functions and exercising powers, but rather reflects the guiding nature of the statement. However, including a ‘no invalidity’ clause in the Bill will not exclude judicial review under section 75(v) of the Constitution and section 39B of the Judiciary Act 1903 where a failure to meet procedural requirements would amount to a jurisdictional error. It is unlikely to inoculate a decision against broader failures such as fraud, bribery, dishonesty or other forms of conscious maladministration.^[34]

1.24 While the committee welcomes the inclusion of the Statements of Rights and Principles and notes the advice of the Royal Commission Report that most of these not be separately and directly enforceable in the courts, the committee is concerned that these important matters are not enforceable and therefore have no little to no impact. As a result, there are limited remedies for individuals who have suffered a breach of either the Statement of Rights or Statement of Principles.

1.25 In relation to the Statement of Principles, the committee notes that the Final Report of the Aged Care Royal Commission considered that two principles are paramount to the administration of the bill: ensuring safety, health and wellbeing of aged care recipients, and putting older people first.^[35] While these principles are reflected in the Statement of Principles, the committee is concerned that they are not mandatory requirements in line with the views put forth by the Aged Care Royal Commission.

1.26 Further, the committee notes that the bill provides a no-invalidity clause for a failure to comply with the Statement of Principles.^[36] A legislative provision that indicates that an act done or a decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a 'no-invalidity' clause. There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. Consequently, the committee expects a sound justification for the use of a no-invalidity clause to be provided in the explanatory memorandum. However, in this instance there is no explanation or justification provided as to why the no-invalidity clause is necessary and appropriate.

1.27 In this context, the committee is concerned that subclause 26(3) would mean that a decision-maker may have no regard to the Principles and yet a decision would still be valid. It is unclear why making the Principles relevant factors which must be considered as a condition of validity would be unworkable. The committee notes if the intention of Parliament is, as stated in subclause 26(1) to ensure that regard must be had to the Principles, it is inconsistent with that intention to provide no ground for judicial review as to whether consideration was given to the Principles when making a decision.

Exemption from disallowance^[37]

1.29 Various provisions within the bill provide that determinations or directions made by the minister are legislative instruments but they are not subject to disallowance.

1.30 For example, the minister must determine a process and method to determine the number of places available for allocation to individuals for each service group,^[38] but this determination is not subject to disallowance.^[39]

1.31 In addition, the minister, by legislative instrument, may give written directions to the Commissioner about the performance of the Commissioner’s functions.^[40] A note to the subclause states that disallowance and sunsetting do not apply to the directions. This is repeated in other provisions, such as for directions given to the Complaints Commissioner,^[41] and for directions to the Advisory Council.^[42]

1.32 Disallowance plays a key role in the review of legislative power delegated to the executive by the Parliament. Disallowance is the primary manner by which the Parliament exercises control of its delegated power.

1.33 As a body, the Senate acknowledged, in June 2021, the significant implications exemptions from disallowance have for parliamentary scrutiny and resolved that delegated legislation should be subject to disallowance unless exceptional circumstances can be shown which would justify an exemption. In addition, the Senate resolved that any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim will only be justified in rare cases.^[43]

1.34 The Senate's resolution is consistent with concerns about the inappropriate exemption of delegated legislation from disallowance expressed by this committee in its recent review of the Biosecurity Act 2015,^[44] and by the Senate Standing Committee for the Scrutiny of Delegated Legislation in its inquiry into the exemption of delegated legislation from parliamentary oversight.^[45]

1.35 In cases of disallowance the committee expects the explanatory memorandum to outline the circumstances that justify the limit on parliamentary oversight and scrutiny.

1.36 In relation to the determination of the number of places available for allocation to individuals, the explanatory memorandum explains:

The exemption from disallowance for this instrument is justified on the basis that the determination made under this clause is an internal tool to manage government spending and administration of resources in accordance with decisions made through the annual Budget process. Given the nature of the determination, the provisions ensure that the determination is not disallowable under section 42 of the Legislative Instruments Act. Treating the determination as not disallowable also minimises the risk of uncertainty that would arise if the determination was disallowed and the System Governor is unable to allocate any places for the financial year and therefore unable to make funded aged care services available to individuals.^[46]

It would be inappropriate to subject these instruments to disallowance, as the risk of disallowance would be that the System Governor would be unable to allocate any places for the financial year and therefore unable to make funded aged care services available to individuals under specialist aged care programs. Additionally, it would be inappropriate for Parliament to intervene with decisions made by the Expenditure Review Committee.^[47]

1.38 In relation to other instruments specified above that are exempt from disallowance, the explanatory memorandum merely restates the operation of the provisions without sufficiently justifying why the exemptions are appropriate.^[48]

1.39 In this instance, it is not clear to the committee how subjecting instruments to disallowance increases uncertainty or creates an instance where the System Governor would be unable to fulfill their duties. This is because disallowance of an instrument is a rare occurrence.^[49] Further, as stated by the Senate Standing Committee for the Scrutiny of Delegated Legislation in its final report into exemption of delegated legislation from parliamentary oversight:

A well-formed instrument that is made according to its enabling legislation and enjoys broad support will not be disallowed, and is thus unlikely to manifest any of the consequences suggested by departments. Many rationales that point to the possibility of negative outcomes call for such a significant stretch to the credulity of the Parliament that they cannot be seriously considered.^[50]

1.40 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of exempting provisions from disallowance.

1.41 The committee also draws these matters to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Tabling of documents in Parliament^[51]

1.42 Clause 342 of the bill provides that the System Governor must, at the end of each financial year, prepare a report for the Inspector-General of Aged Care in relation to reports received by the Department from coroners about the death of an individual accessing funded aged care services which include a recommendation to the Department.^[52]

1.43 The report by the System Governor to the Inspector-General of Aged Care must contain the recommendations made to the Department, a summary of actions taken by the Department in response to said recommendations as well as an evaluation of the effectiveness of those actions.

1.44 In addition, clauses 373 and 374 provide that the minister may, by notice in writing to the Commissioner and the Complaints Commissioner, request the relevant Commissioner to inquire into and report to the minister on their functions.^[53]

1.45 However, none of the provisions specify a requirement for the reports to be tabled in the Parliament, nor does the explanatory memorandum contain any further information on whether it is intended that these reports will be tabled in the Parliament.

1.46 The committee’s consistent scrutiny view is that tabling documents in Parliament is important to parliamentary scrutiny, as it alerts parliamentarians to the existence of documents and provides opportunities for debate that are not available where documents are not made public or are only published online. As such, the committee expects there to be appropriate justification for failing to include tabling requirements.

1.47 Noting the impact on parliamentary scrutiny, the committee requests the minister’s advice as to why the bill does not provide for reports produced under clauses 342, 373 and 374 to be tabled in the Parliament.

Coercive powers^[54]

1.48 The bill seeks to trigger the standard search, entry and seizure powers provided by the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). It also seeks to modify and extend this framework to provide that an authorised person, or a person assisting an authorised person, may bring to the premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether the thing may be seized.^[55] The bill also provides that a thing found at the premises may be moved to another place to determine whether it may be seized if it is significantly more practical to do so and the authorised person or person assisting suspects on reasonable grounds that the thing contains or constitutes evidential material.^[56] Once the thing has been moved, it may remain there for examination or processing for 14 days, which may be extended by periods of seven days at a time.^[57]

1.49 Further, the bill also provides that if electronic equipment is moved, an authorised person or the person assisting may copy any or all of the data associated by operating the electronic equipment if they suspect on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material.^[58] An authorised person or person assisting may also seize the equipment or seize any material obtained from the equipment if, after operating the equipment, they find that evidential material is accessible.^[59] Equipment or data may also be seized if possession of the equipment by the occupier could constitute an offence.^[60]

1.50 From these provisions, it does not appear that a warrant must be obtained in order to move or seize things, equipment or data associated with an equipment that has been recorded in another form.

1.51 In general, the committee prefers seizure to only be allowed under a warrant, even if search and entry has been authorised in the absence of a warrant. The committee considers that where a bill seeks to confer coercive powers, which include the seizing of evidential material, the explanatory memorandum should address why it is appropriate, what safeguards exist, and whether the approach taken is consistent with the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which outlines an expectation that seizure should only be allowed under warrant, with an interim power to secure the item if necessary.^[61]

1.52 The explanatory memorandum does not provide any justification as to why equipment or data associated with equipment may be seized without warrant nor does it provide any additional information as to safeguards.^[62] However, in relation to why information or equipment may need to be seized generally, the explanatory memorandum provides the following information:

For example, where there may be a significant amount of data contained on specialist equipment, searching through all of the material or data while at the premises may not be practicable or efficient. Further, it may require a person with specialist expertise. This is particularly the case in relation to computers and other electronic equipment which may have large amounts of data that are protected by passwords or other forms of encryption.^[63]

1.53 While the committee acknowledges that there may be data contained on specialist equipment that needs to be examined by experts in a separate location, the committee queries why this process must be done without a warrant. Additionally, while the committee notes that a thing (which includes electronic equipment) may only be moved either with the occupier’s consent or where there is a suspicion on reasonable grounds that the thing or equipment contain or constitute evidential material, the committee does not consider that this is an appropriate substitution for a warrant. Without the requirement for a warrant, there is no means to ensure that there is an independent assessment of whether seizure of the equipment or data in the specific circumstance is justified.

1.54 The committee’s concerns are heightened in this instance as it is evident the powers conferred by clauses 436 and 437 are beyond the powers granted by the provisions under Part 3 of the Regulatory Powers Act. Under the Regulatory Powers Act, a warrant must be issued specifying the kind of evidential material that may be searched, and that the evidential material of the specified kind may be seized.^[64] It is unclear from the bill and the explanatory memorandum why it is necessary and appropriate to be able to search for evidential material without a warrant and in the absence of the consent of the occupier. Further, it is also unclear from the bill and explanatory memorandum why it is necessary and appropriate for any evidential material that is found, such as data, to be seized without a warrant.

1.55 Finally, the committee notes that while clause 436 specifies that a thing that has been moved to another place for examination or processing may only be done so for 14 days, this can be extended by seven-day periods on application.^[65] The bill does not limit the number of extensions that may be sought and does not impose a requirement for evidential material that has been seized to be returned if it is not determined to be used as evidence. Under the Regulatory Powers Act, a seized thing must be returned 60 days following the seizure of the thing or once the reason for the seizure no longer exists,^[66] with only very limited exceptions.^[67] It is unclear to the committee why no similar statutory requirement to return a thing that has been moved for examination has not been provided for on the face of the bill, or whether section 66 of the Regulatory Powers Act is taken to apply in this context.

1.56 In light of the above, the committee requests the minister’s advice as to:

Procedural fairness
Privacy
Significant matters in delegated legislation^[68]

1.57 The bill provides that the Aged Care Quality and Safety Commissioner (the Commissioner) may make an order prohibiting or restricting a registered provider or an individual aged care worker or a responsible person of the aged care provider from involvement in the delivery of funded aged care generally or in a specified service type or in a specified activity of a registered provider (banning orders).^[69] These orders may apply generally or be of limited application, be permanent or for a specified period and be made subject to specified conditions.^[70] The grounds for making a banning order include where:

1.58 The Commissioner must provide the entity (which can include an individual)^[72] a notice of an intention to make a banning order prior to making a banning order under clause 497 or 498.^[73] However, in the event that the Commissioner reasonably believes that there is an immediate and severe risk to safety, health or wellbeing of one or more individuals accessing funded aged care, this requirement does not apply.^[74] As a notice of intention would invite the entity to make submissions to the Commissioner in relation to the matter, the non-requirement to provide a notice of intention in these circumstances would mean the entity is not afforded an opportunity to make submissions before a final banning order is made against them. The only opportunity for any type of recourse would be if the entity then applied for the order to be varied or revoked under clause 505 of the bill.

1.59 The explanatory memorandum provides the following justification for this exception:

These exceptions to the notice requirement are intended to ensure that the Commissioner can take immediate action to ban a registered provider, responsible person or aged care worker if these circumstances exist.^[75]

1.60 While the committee acknowledges the need to act quickly in the event of an immediate risk to safety, health or wellbeing, it is unclear to the committee why it is necessary and appropriate to proceed to making a final banning order where the affected entity does not have an opportunity to be heard prior to finalising the order. For instance, the committee queries why an interim order cannot be made for a short period, following which the Commissioner may determine if a final banning order should be made so, and hear submissions from the affected entity at that stage. This would ensure that the onus is not on the affected entity to have the order varied or revoked before they have been heard from.

1.61 The committee also notes the impact on an individual’s privacy that a banning order under clause 498 can have. Under clause 507 the Commissioner is required to establish and maintain a register of banning orders, which relevantly includes the name of the individual aged care worker or responsible person, the details of the banning order and any information prescribed by the rules.^[76] Further, banning orders that are no longer in force may remain on the register unless the order has been revoked on application or on the Commissioner’s initiative.^[77] The rules may make provision for the publication of the register of banning orders,^[78] though it is unclear who will have access to these registers and by what means that access may be limited. Currently the register of banning orders is available on a public website and an internet search of the name an individual on the register will identify them as being subject to a banning order.^[79]

1.62 In relation to the register of banning orders, the explanatory memorandum provides the following justification:

This aims to ensure the safety of individuals accessing funded aged care services by putting employers on notice of individuals who were found unsuitable to provide funded aged care services or specified service types and assist registered providers in meeting their obligations in relation to their workers and responsible persons. 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 health, safety and wellbeing of individuals receiving funded aged care services.^[80]

1.63 The committee acknowledges the clear importance of ensuring the safety of individuals accessing funded aged care services. However, it is not clear to the committee where and how this information will be published and who will have access to it, as currently all that is provided on the face of the bill is that the rules may make provision for the publication of the registers. For instance, although it would appear highly necessary for employers to have notice of individuals found unsuitable to provide funded aged care services, it may not be necessary for the information to be published fully on a public website rather than providing the information on request where necessary. If personal details of individuals are accessible on a public website via a general internet search, this would appear to be a bigger intrusion on privacy than is necessary to achieve the stated intention of the measure. The committee is particularly concerned that banning orders that have ceased to have effect may remain indefinitely on a public website for any person to access, even if they are not an aged care provider or associated with an aged care provider.

1.64 Finally, the committee notes that information that must be included on these registers as well as other matters relating to the publication of both registers may be provided for by the rules.^[81] These matters include publication of the registers in whole or in part, matters relating to the administration and operation of the registers and the correction of information on the register.^[82]

1.65 The committee reiterates its longstanding view that where a bill includes significant matters in delegated legislation, the committee expects the explanatory memorandum to the bill to address why it is appropriate to include the relevant matters in delegated legislation and whether there is sufficient guidance on the face of the primary legislation to appropriately limit the matters that are being left to delegated legislation. A legislative instrument made by the executive is not subject to the full range of parliamentary scrutiny inherent in bringing forward proposed legislation in the form of a bill.

1.66 The explanatory memorandum does not provide a justification for why inclusion of these matters in delegated legislation is necessary and appropriate in this context. In relation to matters that may be included in the register of banning orders which the rules are able to prescribe, the explanatory memorandum states:

The rules will also provide for exceptions to publication of information on the register, where appropriate, as well as processes for accessing and correcting information held on the register.^[83]

1.67 From the above, it is unclear to the committee why these matters are appropriate for inclusion in delegated legislation and concerns remain that matters relating to the publication of private information that may potentially be accessed by the public at large will not be subject to the full range of parliamentary scrutiny that primary legislation is subject to.

1.68 In light of the above, the committee requests the minister’s advice as to:

Immunity from civil liability^[84]

1.69 The bill seeks to provide that authorised officers and persons assisting authorised officers are not liable in relation to civil proceedings for all actions done in good faith in relation to powers exercised and actions taken for the purpose of the regulatory mechanisms of the bill.^[85] Similarly, the bill would provide that a person is not liable to civil proceedings as a result of the person using or disclosing relevant information in a circumstance that is authorised by the bill.^[86] Finally, the bill seeks to provide that the Systems Governor is not liable to civil proceedings as a result of the publication of information about the quality of funded aged care services and the performance of registered providers of such services.^[87]

1.70 This therefore removes any common law right to bring an action to enforce legal rights, unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply the lack of an honest or genuine attempt to undertake a task. Proving that a person has not engaged in good faith will therefore involve personal attack on the honesty of a decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.71 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum provides the following in relation to the immunity conferred on authorised persons and persons assisting:

The purpose of this immunity is to protect authorised officers, and persons assisting them, from liability that might otherwise arise from the exercise of their statutory powers. For example, an authorised officer may enter and search premises under Parts 2 or 3 of the Chapter 6 of this Bill or seize and retain seized property. Without lawful authority, these actions would amount to a tort, such as trespass. The immunity is necessary to permit authorised officers to exercise their regulatory powers. The immunity is limited by excluding conduct not done in good faith.^[88]

1.72 The explanatory memorandum only restates the operation of the provision conferring immunity from civil liability in relation to authorised disclosures without providing a justification. In relation to the immunity conferred on the System Governor the explanatory memorandum states:

This is a proportionate protection as it is in the public interest to allow the System Governor to accurately assess and publish information to the public quality and performance to facilitate choice in aged care. The immunity provided under this provision ensures transparency about the performance of registered providers and that the System Governor can publish this information without the risk of costly litigation or sanction.^[89]

1.73 Although the committee acknowledges the need for people employed in the positions listed above to be able to exercise their powers and perform their functions without fear of legal action, it is unclear to the committee how an affected individual or entity may seek recourse other than by providing evidence that a party mentioned above acted in bad faith.

1.74 The committee requests the minister’s advice as to what recourse is available for affected individuals, other than demonstrating a lack of good faith, for actions taken by authorised persons, persons assisting authorised persons and the System Governor.

Reversal of the evidential burden of proof^[90]

1.75 The bill creates an offence if non-entrusted persons use or on-disclose protected information which was disclosed to them under specific provisions, and the on-disclosure is not made for the purpose for which the information was disclosed to the non-entrusted person.^[91] The penalty is up to two years imprisonment.

1.76 The bill provides two exceptions to this offence. The first exception is that the offence does not apply to a use or disclosure authorised by a provision of Division 2 of Part 2 of Chapter 7 of the bill.^[92] The second exception is that the offence does not apply to the conduct of individuals who are accessing or seeking access to funded aged care services, conduct of supporters of those individuals, or conduct of registered providers.^[93] The evidential burden of proof is reversed for each of these exceptions.

1.77 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.78 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers which states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

1.79 In this instance, the explanatory memorandum does not sufficiently address how the matters relevant to these exceptions are peculiarly within the knowledge of the defendant.

1.80 The committee considers that where a provision reverses the burden of proof the explanatory memorandum should explicitly address relevant principles as set out in the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.^[95]

1.81 Noting the importance of explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation,^[96] the committee considers that a justification for reversing the evidential burden of proof should have been included within the explanatory memorandum.

1.82 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to the offences under subclauses 535(3) and 535(4) of the bill.

Privacy^[97]

1.83 The bill creates offences for the unauthorised use or disclosure of protected information, which includes personal information obtained or generated for the purposes of this bill. The bill provides for exceptions to these privacy requirements, including for entrusted persons^[98] who are authorised to use or disclose information in specified circumstances.^[99] Entrusted persons are permitted to disclose relevant information to the minister for the purposes of the minister’s performance of their functions,^[100] and to disclose information for obtaining legal advice^[101] or for the purposes of delivering or providing access to aged care services.^[102] In relation to disclosures to the minister the bill provides the safeguard that personal information is not authorised for disclosure if the purpose for which is it being disclosed can be achieved by the disclosure of de-identified information.^[103]

1.84 The bill also provides for circumstances in which the System Governor and Appointed Commissioners may use or disclose information.^[104] These exceptions are numerous and include, for example:

1.85 The exceptions which permit disclosure of personal information by the System Governor or an Appointed Commissioner are extremely broad. Excepting use and disclosure of personal information from these offence provisions may affect the right to privacy, and whether this unduly limits personal rights and liberties depends on the breadth of these exceptions and the justification for such exceptions. The explanatory memorandum merely restates the operation of these provisions and provides no justification for these exceptions.

1.86 In relation to disclosures by and to the minister, the committee notes this broadly allows the personal information to be disclosed to the minister for the broad ‘performance of the minister’s functions’ and the bill also authorises the minister (or any person the information was lawfully disclosed to) to use or disclose the information to any person , so long as the disclosure is for the purpose for which it was disclosed to them.^[108] The committee has some concerns that this may permit the minister to disclose personal information (which is not de-identified) publicly in situations, for example, where an individual has made adverse claims in the media and the minister may request and disclose information about that individual as relevant to respond to their claims, including their personal information.^[109]

1.87 Further, the bill provides that entrusted persons are permitted to disclose relevant information relating to an individual accessing or seeking to access funded aged care for the purposes of delivering aged care services, assessing the individual’s need for services, and assessing the individual’s level of care needs relative to the needs of other recipients.^[110] However, it is unclear to the committee why this provision is necessary as the bill permits the use or disclosure of relevant information if the individual or entity has consented to the use or disclosure.^[111] It is unclear why it would be necessary to disclose this information without the consent of the individual seeking the services.

1.88 In relation to the exceptions for the System Governor,^[112] the bill provides exceptions for disclosures to at least 20 specified Commonwealth bodies, with more that can be prescribed by the rules, for facilitating the performance of their functions and duties, without any explanation provided as to why each exception is justified. In relation to those specified for the purposes of their enforcement functions it is noted that subclause 539(8) would provide for broad disclosures if necessary for the enforcement of the criminal law, a law imposing a penalty, protection of revenue or for an integrity purpose. As such, it is unclear why it is necessary to provide a general disclosure power to some of the listed bodies, such as the Australian Securities and Investment Commission or the Australian Prudential Regulation Authority.

1.89 For the disclosure for research purposes it is unclear to the committee why the provision is not drafted in a manner to require the de-identification of personal information. Currently, subclause 539(7) provides that information may be disclosed if the System Governor or Appointed Commissioner ‘reasonably believes the information is necessary for the research’. It does not require that information provided for research be de-identified. Instead a legislative note states that disclosure of personal information is not necessary for research if the research could be carried out with de-identified information. It is not clear why personal identifiable information should ever be provided for research purposes without the consent of the individual.

1.90 Further, there are a range of exceptions where the System Governor can disclose information in the ‘public interest’, but without any further guidance in the bill or the explanatory memorandum it is difficult for the committee to assess the appropriateness of this exception. Justifications for these provisions should have been provided along with examples of the types of scenarios in which it is envisaged the public interest may be enlivened. Of further concern, it appears that matters relevant to the public interest exceptions may be set out in delegated legislation, which again inhibits the ability of the committee to assess their appropriateness.^[113]

1.91 Noting the impact on privacy of broad authorisations for the use or disclosure of personal information, the committee requests the minister’s advice as to:

Broad delegation of administrative powers and functions^[114]

1.92 The bill provides that the Commissioner may delegate any of their powers and functions under the bill, other than Parts 2-9 of Chapter 6 (in relation to regulatory mechanisms) to the Complaints Commissioner.^[115] The Complaints Commissioner is then authorised to delegate those powers or functions to a member of the staff of the Commission.^[116] There appears to be no limit as to the level of seniority to which these delegations can be made.

1.93 The committee has consistently drawn attention to legislation that allows for 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 as to why these are considered necessary should be included in the explanatory memorandum.

1.94 In this instance the explanatory memorandum merely restates the operation of the provision without providing any guidance as to why this broad delegation is necessary or appropriate. The committee also notes that similar delegation provisions in the bill include a requirement that the delegate consider whether the delegee has appropriate qualifications, skills or seniority , and it is unclear why this safeguard is not present in the delegation from the Commissioner to the staff of the Commission.

1.95 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 powers and functions under clause 575, 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.

Automated decision-making^[117]

1.96 The bill seeks to provide that the System Governor may arrange for the use of computer programs to take relevant administrative action, which will be done under the System Governor’s oversight.^[118] The bill provides an exhaustive list of actions that are considered ‘relevant administrative action’, which include:

1.97 The committee notes that a number of welcome oversight and safeguard mechanisms are set out in the bill, which include the following:^[120]

1.98 Further, the committee notes that a failure to comply with some of the safeguards detailed above does not affect the validity of relevant administrative action taken by the operation of a computer program.^[126]

1.99 Administrative law typically requires decision-makers to engage in an active intellectual process in respect of the decisions they are required or empowered to make. A failure to engage in such a process—for example, where decisions are made by computer rather than by a person—may lead to legal error. In addition, there are risks that the use of an automated decision-making process may operate as a fetter on discretionary power by inflexibly applying predetermined criteria to decisions that should be made on the merits of the individual case. These matters are particularly relevant to more complex or discretionary decisions, and circumstances where the exercise of a statutory power is conditioned on the decision-maker taking specified matters into account or forming a particular state of mind.

1.100 In this instance, the committee is concerned as to whether all the decisions included within the definition of ‘relevant administrative action’ are appropriate decisions that may be made by the operation of a computer program. For instance, the committee notes that a decision under subclause 78(1) requires the minister to establish a classification level for an individual on the basis of a classification assessment report for an individual or information that is provided as part of undertaking classification assessments.^[127] The committee understands that a classification level determination relates to the nature of services that an individual requires and is determined based on that individual’s needs.

1.101 Similarly, the committee understands that a priority category decision is made following a prioritisation assessment for an individual (in relation to their classification level) and a prioritisation report that is prepared after the assessment.^[128]

1.102 As the explanatory memorandum does not provide a justification in relation to why the decisions that constitute relevant administrative action are appropriate for automation, it is unclear to the committee why the minister may arrange for the use of a computer program in making these decisions. While the committee welcomes that ‘relevant administrative action’ is defined to a limited number of decisions that cannot be expanded by delegated legislation, the committee queries how decisions that involve detailed considerations of what services may be appropriate to meet an individual’s needs is appropriate for automation.

Standing appropriation^[130]

1.104 The bill provides that amounts payable by the Commonwealth are to be paid out of the Consolidated Revenue Fund which is appropriated accordingly.^[131] As this appropriation covers amounts payable by the Commonwealth for funding arrangements for funded aged care services, this appropriation likely represents a large amount of Commonwealth expenditure, which once established as a standing appropriation will be administrated without parliamentary oversight.

1.105 Standing appropriations enable entities to spend money from the Consolidated Revenue Fund on an ongoing basis, usually for indefinite amounts and duration. Unlike annual appropriations which require the Executive to periodically request the Parliament to appropriate money for a particular purpose, once a standing appropriation is enacted any expenditure under it does not require regular parliamentary approval and therefore escapes direct parliamentary control. The amount of expenditure authorised by a standing appropriation may grow significantly over time, but without any mechanism for review included in the bill alongside the appropriation it is difficult for the Parliament to assess whether a standing appropriation remains appropriate.

1.106 Given the difficulty of ongoing parliamentary oversight over enacted standing appropriations, the committee expects a robust justification for why a standing appropriation should be established or expanded in the first place. To this end, the committee expects the explanatory memorandum to a bill which establishes or expands a standing appropriation to explain why it is appropriate to include a standing appropriation (rather than providing for the relevant appropriations in the annual appropriation bills). In relation to this the explanatory memorandum merely restates the operation of the provision without providing any justification as to its necessity and appropriateness. The committee appreciates the importance of ensuring ongoing funding for the provision of aged care services, but the committee notes that once established as a standing appropriation, Parliament retains limited oversight of this expenditure.

1.107 The committee therefore requests the minister’s advice as to what mechanisms are in place to report to the Parliament on any expenditure authorised by the standing appropriation.

^[3] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Aged Care Bill 2024, Scrutiny Digest 13 of 2024; [2024] AUSStaCSBSD 202.

^[4] The committee draws senators’ attention to the bill relating to this matter pursuant to Senate standing order 24(1)(a)(ii) and (iv).

^[11] See, for example, clause 17 of the bill and page 70 of the explanatory memorandum.

^[13] Clause 17. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i),(ii) and (iv).

^[27] Clauses 24 and 26. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[37] Subclauses 91(5), 94(5), 355(1), 360(1) and 384(1). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iv) and (v).

^[39] The exemption from disallowance is in subclause 91(5). This is replicated in subclause 94(5).

^[43] Senate resolution 53B. See Journals of the Senate, No. 101, 16 June 2021, pp. 3581–3582.

^[49] There have been 172 successful disallowance motions and nine successful disapproval motions (relation to determinations of the Remuneration Tribunal). The first successful disallowance motion was 29 May 1914 and the latest was on 3 April 2019. Based on research undertaken for the Senate Standing Committee on Regulations and Ordinances by Dr Michael Sloane, Parliamentary Library—Senate Standing Committee for the Scrutiny of Delegated Legislation, Parliamentary scrutiny of delegated legislation (3 June 2019) p. 114.

^[51] Clauses 342, 373 and 374. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

^[53] See clause 348 for functions of the Commissioner and clause 357 for functions of the Complaints Commissioner.

^[54] Clauses 436 and 437. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[68] Clauses 141, 497, 498, 499, 501 and 507. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (iv).

^[84] Clauses 533, 536 and 541. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[90] Subclauses 535(3) and (4). The committee draws senators’ attention to these provision pursuant to Senate standing order 24(1)(a)(i).

^[97] Clauses 538 and 539. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[98] The definition of an entrusted person is very broad, with clause 7 of the bill specifying persons such as the minister, the system governor, an APS departmental employee, and any person engaged by the Commonwealth to provide services in connection with the department or the Commission.

^[111] Subclause 537(5). Note that the definition of an entity also includes an individual for the purposes of the bill, as per clause 7.

^[114] Clause 575. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii)

^[117] Clause 582. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iii).

^[130] Clause 598. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

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