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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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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.
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Portfolio
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Health and Aged Care
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Introduced
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House of Representatives on 12 September 2024
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Bill status
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Before the Senate
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2.2 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.[202] The practices or interventions that are to be classified as restrictive practices will be set out in the rules made under the bill.[203] 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.[204] Further safeguards that must be set out in the rules on the use of restrictive practices are provided on the face of the bill.[205] 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,[206] and may also provide that requirements in the rules do not apply if the use of a restrictive practice is necessary in an emergency.[207] 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.[208]
2.3 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. Further, 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.
2.4 The bill also 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.[209]
2.5 In Scrutiny Digest 13 of 2024,[210] the committee noted the potential for the use of restrictive practices to impact on personal rights and liberties and requested the minister’s advice as to:
• why it is considered necessary and appropriate to leave the details of when restrictive practices can be used in an aged care setting to delegated legislation;
• whether the bill could be amended to include additional high-level guidance about when restrictive practices can be used on the face of the primary legislation; and
• whether the bill could be amended to include:
• at least a broad definition of 'emergency'; and
• limits around which considerations set out in clause 18 can be overridden in an emergency.
2.6 The committee also drew the attention of senators and left to the Senate as a whole the appropriateness of the immunity from civil and criminal liability in clause 168 of the bill.
2.7 The minister noted that the provisions regarding restrictive practises mirror those in the existing Aged Care Act 1997 (the Aged Care Act) and will reflect the current Quality of Care Principles 2014.
2.8 The minister advised that safeguards on the use of restrictive practices are set out in clause 18, and that guidance is provided on further safeguards to be set out in the rules, including:
• that alternative strategies must be used before the use of restrictive practices;
• that informed consent must be given to the use of a restrictive practice;
• provisions for monitoring and reviewing of the use of restrictive practices; and
• that the use of a restrictive practice complies with the person’s behaviour support plan.
2.9 The minister noted it is necessary and appropriate that these measures continue to be set out in delegated legislation as they deal with operational details which intersect with state and territory legislative frameworks. This will allow for the flexibility to quickly amend arrangements if they have any unintended consequences.
2.10 Further, the minister advised restrictive practice use in the event of an emergency should be rare and only in serious or dangerous situations that are unanticipated or unforeseen and require urgent action, and that after their use in an emergency the rules will require the following:
• for individuals who are deemed to lack capacity to consent, their substitute decision maker must be informed of the use of the restrictive practice; and
• documentation of the use in the individual’s behaviour support plan, including the reason for the use, alternatives considered, and care to be provided in relation to the person’s behaviour.
2.11 Finally, the minister advised that by using the ordinary meaning of the word ‘emergency’ providers can take appropriate urgent action when there is an immediate risk or harm.
2.12 The committee thanks the minister for this information. However, the committee does not consider that the information provided substantially adds to, or improves on, the information already available to the committee on the face of the bill and in its accompanying explanatory memorandum. While noting the advice that the current bill replicates the relevant matters in the existing Aged Care Act, the committee does not consider that consistency with existing measures is a sufficient justification for providing for such significant matters in delegated legislation. The committee also notes that the current bill provides the government with the opportunity to consider and implement advice provided by this committee in the past in relation to these powers, and considers that its previous concerns have been largely unaddressed. Further, the committee notes that the response generally relies on the justification that the bill is replicating measures in the existing Aged Care Act in response to a range of the committee’s scrutiny concerns. The committee reiterates that the fact that the bill is replicating existing matters is not a sufficient justification for including matters which may amount to scrutiny issues in the bill, and that the committee considers this was a missed opportunity to rectify some of the committee’s previous concerns.
2.13 Further, the committee notes that the response did not directly address whether the bill could be amended to limit what considerations set out in clause 18 may be overridden in an emergency, nor whether it could be amended to provide a broad definition of an ‘emergency’. The committee notes that the current Quality of Care Guidelines 2014 provide that, in an emergency, most of the specified safeguards do not apply in an emergency, except requirements that the restrictive practice is used only to the extent necessary and in proportion to the risk of harm,[212] and that it is used in the least restrictive form for the shortest time, remain. Noting that the existing practice is for the majority of the safeguards to be overturned in situations of emergency, the committee considers the bill should explicitly specify which safeguards must continue to apply even in an emergency.
2.14 While the committee welcomes the advice that the use of restrictive practices is intended to be rare and only occur in unforeseen serious or dangerous situations where there is a risk of harm, this requirement is not set out on the face of the bill itself. The committee notes that those using restrictive practices will be aged care workers who may not necessarily have a clear understanding of what is permitted by the use of the term ‘emergency’ and considers it would likely be of assistance to such workers, and subsequently aged care residents, were the legislation to clearly set these matters out. The committee also remains concerned that delegated legislation is liable to change and there is no guarantee that the stated expected protections will remain in force in the future.
2.15 The committee remains concerned about the use of delegated legislation in setting out key measures relating to the use of restrictive practices and considers that such significant matters should regulated by primary legislation (not rules) to ensure appropriate parliamentary scrutiny.
2.16 The committee recommends that consideration be given to amending the bill to require:
(a) that the rules must not allow the following requirements to be disregarded in the event of an emergency:
(i) that restrictive practices are used only to the extent necessary and proportionate; and
(ii) that if a restrictive practice is used it is used in the least restrictive form and for the shortest time necessary to prevent harm;[213] and
(b) that the use of a restrictive practice will only be considered ‘necessary in an emergency’ if there is an unforeseen risk of harm to a care recipient or other person that requires immediate action.
2.17 The committee otherwise draws these concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving significant matters, which trespass on individual rights and liberties, to delegated legislation.[214]
2.18 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
2.19 The bill sets out a Statement of Rights of persons seeking and receiving aged care.[216] 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.[217]
2.20 The bill also sets out a Statement of Principles (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.[218] 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.[219] 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.[220]
2.21 Further, the committee notes that the bill provides a no-invalidity clause for a failure to comply with the Statement of Principles.[221]
2.22 In Scrutiny Digest 13 of 2024,[222] the committee sought the minister’s advice as to:
• whether a complaint could be made to the Complaints Commissioner for a breach of all aspects of the Statement of Rights (or would it be required to be linked to a violation of the Code of Conduct or Aged Care Quality Standards), and if not, why it is not appropriate to amend the bill to allow for this;
• how subclauses 26(1) and (3) interact, and whether clause 26 of the bill can be amended to require consideration of the Statement of Principles when making a decision as a condition of validity.
2.23 The minister advised that the Complaints Commissioner is empowered to deal with complaints or feedback in relation to aged care providers who act incompatibly with the Statement of Rights. The minister confirmed that the bill will allow for complaints to be made against breaches of the Statement of Rights without the matters needing to be linked to a violation of the Code of Conduct, the Aged Care Quality Standards or another provision of the bill.
2.24 In relation to the no-invalidity clause, the minister advised that the provision does not negate bodies bound by the Statement of Principles from being required to consider the Principles when exercising powers and functions. The minister further noted that the no-invalidity clause does not prevent judicial review under paragraph 75(v) of the Constitution or under section 39B of the Judiciary Act 1903 on the grounds of a jurisdictional error, nor would the provision provide immunity from claims against broader failures (such as fraud, bribery or dishonesty).
2.25 On this basis the minister advised that it would not be appropriate to amend clause 26 of the bill to require consideration of the Statement of Principles when making a decision as a condition of validity. The minister concluded that there may be issues outside the control of the person that require them to make a decision not wholly in line with the Principles, but that is in line with the bill or other legislation.
2.26 The committee welcomes the advice that complaints and feedback can be considered by the Complaints Commissioner solely in relation to failures to adhere to the Statement of Rights, without the need to demonstrate a breach of the Code of Conduct or the Aged Care Quality Standards. The committee considers that this advice would be a useful inclusion to the explanatory memorandum.
2.27 However, the committee remains concerned in relation to the no-invalidity provision in clause 26 of the bill. The committee considers that even if a party is able to seek judicial review, the operation of the no-invalidity clause is apt to limit the practical efficacy of judicial review to provide a remedy for significant legal errors. The conclusion that a decision is not invalid (despite a legal error) means that the decision-maker had the power (i.e. jurisdiction) to make it. In such circumstances, the standard judicial review remedies available under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 would not be available. For this reason, the committee considers that the bill should be amended to clarify that the statutory obligation to consider the Principles (acknowledged to be an obligation by the Minister’s response) is a condition for valid decision-making despite the no-invalidity clause. It is noted that doing so would not require that decision-making is always ‘wholly in line’ with the Principles but only that decision-makers give active intellectual consideration to the principles.
2.28 The committee is concerned that although judicial review is available where there has been a failure to meet procedural requirements resulting in jurisdictional error, it is not apparent that seeking judicial review will result in an effective remedy for an affected party.
2.29 The committee draws these concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing for a no-invalidity clause in subclause 26(3) of the bill.
2.30 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.[224]
2.31 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.[226]
2.32 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.
2.33 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.[227]
2.34 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.
2.35 In Scrutiny Digest 13 of 2024[228] the committee requested the minister advice as to why the bill did not provide for reports produced under clauses 342, 373 and 374 to be tabled in the Parliament.
2.36 The minister advised that these reports may contain sensitive information concerning individuals and, as such, would not be appropriate for tabling in the Parliament.
2.37 For example, a report may include details from coroner’s reports which would contain sensitive information concerning the deceased person and their family members. The minister further provided that, while these reports would not be tabled in the Parliament, a public register of these reports will exist.[230] The register would be subject to protections preventing certain types of information from being shared unless considered appropriate or in the public interest by the System Governor.[231]
2.38 The committee thanks the minister for this response.
2.39 In light of the information provided, the committee considers its concerns have been addressed and makes no further comment in relation to this matter.
2.40 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.[233] 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.[234] 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.[235]
2.41 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.[236] 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.[237] Equipment or data may also be seized if possession of the equipment by the occupier could constitute an offence.[238]
2.42 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 equipment that has been recorded in another form.
2.43 Finally, 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.[239] 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.
2.44 In Scrutiny Digest 13 of 2024,[240] the committee requested the minister’s advice as to:
• why it is necessary and appropriate that clauses 436 and 437 allow for an authorised person, or a person assisting an authorised person, to move things to determine if they may be seized, and then seize a thing or data contained in the thing without a warrant;
• why it is necessary and appropriate for clauses 436 and 437 to confer powers that are beyond what is already provided for by Part 3 of the Regulatory Powers (Standard Provisions) Act 2014;
• whether section 66 of the Regulatory Powers (Standard Provisions) Act 2014 is taken to apply to these provisions;
• why there currently is no statutory limit on the number of times an extension may be applied for in order to retain a thing that has been moved to another location to be examined; and
• why the bill does not contain a requirement that a thing that has been moved or seized must be returned after a certain period or once it is no longer required for evidential purposes.
2.45 The minister advised that the additional powers are necessary and appropriate to ensure electronic equipment may be examined thoroughly for evidential material whether on site or elsewhere and by an expert user if required.
2.46 The minister noted the committee’s concerns and undertook to consider amending the bill to constrain the operation of these additional powers to only where an investigation warrant has been issued. The minister noted that if these powers are confined in this way, this would cause the Regulatory Powers Act to apply to the exercise of these powers as it does to all other powers related to the investigation and seizure of evidential material under warrant, including obligations to return seized items and limitations on extensions to hold items.
2.47 The committee thanks the minister for this response. The committee welcomes the minister’s undertaking to consider amending the bill to require the powers contained in clauses 436 and 437 to apply only where an investigation warrant has been issued.
2.48 The committee also notes the minister’s advice that if this amendment is made, the Regulatory Powers Act will apply to the exercise of these powers as it does to all other powers relating to investigation and seizure of evidential material under warrant. However, the committee notes that the minister did not address the question as to the necessity of these additional powers and it remains unclear what circumstances may make it necessary and appropriate to require the movement of equipment to a separate location.
2.49 The committee welcomes the minister’s undertaking to consider amending the bill to constrain the operation of coercive power to only where an investigation warrant has been issued. Until these amendments are progressed, the committee leaves to the senate as a whole the appropriateness of providing for the movement, examination and potential seizure of items without the occupier’s consent and without a warrant.
2.50 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).[243] These orders may apply generally or be of limited application, be permanent or for a specified period and be made subject to specified conditions.[244] The grounds for making a banning order include where:
• the Commissioner has revoked the registration of the entity as a registered provider;
• the Commissioner reasonably believes that the entity has been involved in, or is likely to become involved in, a contravention of the bill by another entity;
• the Commissioner reasonably believes that the entity or the individual is unsuitable to deliver funded aged care services generally or of a specified service type;
• the Commissioner reasonably believes there is a severe risk to the safety, health or wellbeing of an individual accessing funded aged care services if the entity continues to be a registered provider or if the individual is involved or continues to be involved in a matter to which the order relates; or
• the entity has been convicted of an offence involving fraud or dishonesty or the individual has been convicted of an indictable offence involving fraud or dishonesty.[245]
2.51 The Commissioner must provide the entity (which can include an individual)[246] a notice of an intention to make a banning order prior to making a banning order under clause 497 or 498, which invites the entity to make submissions.[247] 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.[248]
2.52 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.[249] 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.[250]
2.53 In Scrutiny Digest 13 of 2024,[251] the committee requested the minister’s advice as to:
• why it is necessary and appropriate to allow a final banning order to be made against a person in emergency circumstances, noting that this will result in a banning order being made against the individual without providing a chance to make submissions, and whether the bill could be amended to instead provide for the making of an interim banning order and allow submissions to be made before a final banning order is made;
• how the register of banning orders will be published, including who will have access to this register, and, if it will be published in full on a public website, why this is necessary and appropriate;
• why it is necessary and appropriate that information relating to banning orders that have ceased remain published;
• why it is necessary and appropriate to include matters in relation to information that can be included on these registers and in relation to the administration and operation of the registers in delegated legislation; and
• whether the bill can be amended to provide further guidance as to the types of matters the rules may make provision for in relation to the registers.
2.54 The minister advised that the provisions within the bill seek to maintain the existing framework for the Commissioner in relation to making banning orders and establishing and maintaining a register of these orders. The minister also advised that it is anticipated that the register of banning orders will continue to be published on the Aged Care Quality and Safety Commission’s website, however the minister noted that the rules will provide that the Commissioner must not publish a part of the register of banning orders if publication is contrary to public interest.
2.55 Finally, the minister advised that the publication of the banning orders register enables providers and recipients of aged care services to ensure a person subject to a banning order is not engaged in the delivery of funded aged care services. Further, the minister advised that this also ensures a person subject to a banning order is not able to move to another arm of the care services sector and continue to engage in behaviours or conduct that has warranted regulatory action.
2.56 The minister did not address the question as to why it is necessary and appropriate to allow a final banning order to be made against a person in emergency circumstances, and whether the bill could be amended to instead provide for the making of an interim banning order and allow submissions to be made before a final banning order is made.
2.57 The committee thanks the minister for this advice. The committee acknowledges the important need to ensure persons subject to banning orders are not involved in the delivery of funded aged care services and are not able to simply move to another arm of the care services sector. However, it remains unclear to the committee why the banning order register must be published on the Aged Care Quality and Safety Commission’s website, rather than establishing a more private means of storing this information that is accessible to recipients and providers of various care services on request. The committee reiterates that 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. Further, the committee remains concerned that information in relation to banning orders made against individual workers can remain published even after the order has ceased to have effect. As noted earlier, the committee also does not accept the justification that this maintains the existing framework, noting again that the development of this bill provides an opportunity to review the appropriateness of existing practices.
2.58 Further, while the committee notes the minister’s advice that the rules will provide that a part of the register cannot be published if the publication would be contrary to the public interest, the committee considers that this protection should be included on the face of the bill. The inclusion of this protection in delegated legislation is not subject to the full range of parliamentary oversight processes that primary legislation is subject to, and the requirement can therefore be more easily removed. Noting that this would be a key protection against the unnecessary publication of banning orders, the committee suggests that consideration be given to amending the relevant clauses to limit the publication of banning order information where that is contrary to the public interest.
2.59 The committee also notes that its concerns in relation to procedural fairness have not been addressed. While acknowledging the importance of acting in a timely manner where there is an immediate and severe risk of harm to safety, life or wellbeing, the committee queries the necessity of making a final banning order against an individual which can have significant consequences for that individual’s employment (noting information in relation to banning orders is made publicly available and remains published even after the order has ceased to have effect) without providing an opportunity for the individual to make submissions. The committee considers an interim banning order would allow for an individual to temporarily be removed from providing care in a funded aged care service while the Commissioner is able to determine whether to issue a final banning order, against which the affected individual would be able to make submissions.
2.60 Finally, the committee remains concerned that the rules may provide for the operation and administration of the registers that include banning order information, and can prescribe what information is to be included on the registers. It is unclear why it is necessary and appropriate that these matters be provided for by delegated legislation, rather than primary legislation.
2.61 The committee recommends that, at a minimum, consideration be given to amending the bill:
(a) to require the Commissioner to not publish information if the Commissioner considers publication would be contrary to the public interest or the interests of one or more care recipients;[253]
(b) requiring the removal of information from the public register where the banning order is no longer in operation;[254] and
(c) to provide for the making of an interim banning order where there is an immediate and severe risk to the safety, health or well-being of care recipients, in order to allow an affected person the opportunity to make submissions before a final banning order is made (while preventing the person from being involved in the provision of funded aged care services until the matter is resolved).[255]
2.62 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of:
(a) making final banning orders against an individual without affording the affected individual an opportunity to make submissions;
(b) publishing the register of banning orders on the Aged Care Quality and Safety Commission website which will be accessible by the public at large and will include banning orders that have ceased to have effect (noting that this is not time-limited and can remain published indefinitely); and
(c) including significant matters such as the operation, administration and publication of this register in delegated legislation.
2.63 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.[257] 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.[258] 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.[259]
2.64 In Scrutiny Digest 13 of 2024,[260] the committee requested 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.
2.65 The minister advised that clause 533 is intended to protect authorised officers and persons acting under their direction or authority against personal civil liability. As this immunity relates to individuals, but not the Commonwealth, the minister advised that an affected person could seek a remedy from the Commonwealth.
2.66 Further, the minister advised that remedies would also be available to an affected person under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA scheme). Finally, the minister advised that clauses 536 and 541 are intended to only protect persons from civil liability (and not criminal liability).
2.67 The committee thanks the minister for this advice. The committee notes the minister’s advice that an affected individual is able to seek a remedy under the CDDA scheme. The committee also notes the minister’s advice that in relation to clause 533, an affected person is not barred from seeking a remedy from the Commonwealth as the immunities relate only to individual officers (or persons assisting).
2.68 However, the committee notes that the jurisprudence in relation to vicarious liability and immunities suggests that when an officer has been provided with an immunity, the Commonwealth (as employer) would also be immune from liability.[262] As such, in the absence of a contrary intention in the legislation, the committee considers there is a risk that the Commonwealth would also be held to be immune from liability, despite the minister’s advice that it is not intended that an affected person be barred from seeking a remedy from the Commonwealth.
2.69 Noting the minister’s advice that it is not intended that the Commonwealth be immune from liability and that affected individuals may seek a remedy from the Commonwealth, the committee considers clause 533 of the bill should be amended to provide that the proposed immunities for officers or persons assisting do not extend to the Commonwealth.
2.70 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.[263]
2.71 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[265] who are authorised to use or disclose information in specified circumstances.[266] Entrusted persons are permitted to disclose relevant information to the minister for the purposes of the minister’s performance of their functions,[267] and to disclose information for obtaining legal advice[268] or for the purposes of delivering or providing access to aged care services.[269] 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.[270]
2.72 The bill also provides for circumstances in which the System Governor and Appointed Commissioners may use or disclose information.[271] These exceptions are numerous and include, for example:
• to a wide range of specified bodies (such as Services Australia or the Fair Work Commission) for the purpose of facilitating performance of their functions or duties, or the exercise of their powers;[272]
• for research purposes to an entity that is carrying out research into funded aged care on behalf of the Commonwealth if reasonably believed to be necessary for the research;[273] and
• for purposes necessary in the public interest.[274]
2.73 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.[275]
2.74 In relation to the exceptions for the System Governor,[276] 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.
2.75 Further, there are a range of exceptions where the System Governor can disclose information in the ‘public interest’, and it appears that matters relevant to the public interest exceptions may be set out in delegated legislation.
2.76 In Scrutiny Digest 13 of 2024,[277] the committee noted the impact on privacy of broad authorisations for the use and disclosure of personal information and sought the minister’s advice as to:
• why each of the broad exceptions from privacy protections in clauses 538 and 539 are necessary and appropriate, in particular subclauses 538(1) and (4) and 539(4), (7), (10) and (11);
• whether the bill could be amended to require a person who is disclosing information for the same purpose for which it was disclosed to them (under subclause 537(9)) to de-identify the information where appropriate;
• whether the bill can be amended to require information disclosed for research purposes to be either de-identified or only shared with consent; and
• examples or guidance as to what would constitute a public interest reason for the System Governor to disclose information.
2.77 The minister provided detailed justifications for the inclusion of the relevant provisions.
2.78 In relation to subclause 538(1) (disclosure to the minister), the minister advised:
• disclosure of identified information would not be authorised where de-identified information can fulfil the required function; and
• in relation to adverse comments made by the minister in the media, the Australian Privacy Principles permit disclosure of personal information in order to respond.[279]
2.79 In relation to subclause 538(4) (use or disclosure relating provision of services), the minister advised that the provision empowers disclosure of information by entrusted persons to enable the delivery of aged care and associated services. The minister noted this is necessary as the individual may not have specifically consented to sharing information for that particular purpose, and information may also need to be shared with state and territory bodies in situations where consent may not be practical (such as cases of elder abuse concerns).
2.80 In relation to subclause 539(4) (disclosure to various listed bodies), the minister noted that the intent of this provision is to ensure consistency of information and data across government so that information does not become siloed, which was a key recommendation of the Aged Care Royal Commission, which emphasised the importance of sharing data between aged care providers and government agencies.
2.81 In relation to subclause 539(7) (disclosure for research), the minister advised that:
• identifiable information will only be disclosed for research purposes when de-identified information would not be sufficient to conduct the research; and
• to amend the provision to require only de-identified information will be shared will prevent the sharing of any identifiable information which is necessary for some important research projects.
2.82 In relation to subclauses 539(10) and (11) (use or disclosure if necessary in the public interest), the minister provided examples of what may constitute a public interest reason for the System Governor to disclose information, including health and safety concerns, emergency management, and transparency and accountability.
2.83 Finally, in relation to subclause 537(9) (use or disclosure for purpose it was disclosed to them), the minister undertook to consider amending the bill to require that persons who are disclosing information for the same purpose it was disclosed to them should de-identify that information where appropriate.
2.84 The committee thanks the minister for the detailed advice provided in relation to the committee’s privacy concerns. The committee considers that the majority of the advice provided improves on the explanation of the relevant provisions in the explanatory memorandum, have largely addressed the committee’s concerns, and should be included in an update to the explanatory materials.
2.85 In relation to the advice that the Australian Privacy Principles have been interpreted by the Office of the Australian Information Commissioner (OAIC) as allowing disclosure of personal information in the media to respond to adverse claims, the committee remains concerned about the power imbalance that could potentially occur and the chilling effect this may have in preventing individuals from publicising issues.
2.86 In relation to proposed subclause 537(9), the committee notes and welcomes the minister’s undertaking to consider amending the bill to ensure that information which is further disclosed for the same purposes it was initially disclosed may be de-identified when appropriate.
2.87 In light of the advice provided, including the minister’s undertaking to consider amending the bill to require de-identification of disclosed information (for the purpose it was originally disclosed for) where appropriate, the committee makes no further comment on this matter.
2.88 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.[280]
2.89 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.[282] The Complaints Commissioner is then authorised to delegate those powers or functions to a member of the staff of the Commission.[283] There appears to be no limit as to the level of seniority to which these delegations can be made.
2.90 Similar delegation provisions in the bill include a requirement that the delegate consider whether the delegee has appropriate qualifications, skills or seniority.
2.91 In Scrutiny Digest 13 of 2024,[284] the committee sought 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.
2.92 The minister advised that the broad scope of functions and powers which may be delegated is due to the potential overlap of skills and experience of Commission staff in exercising complaints functions and other Commissioner functions. The minister advised that this delegation is intended to effectively administrate and allocate the Commission’s resources.
2.93 The minister advised that they will consider amending subclause 572(2)[286] as suggested by the committee to limit the categories of people to whom the powers and functions of the Commissioner may be delegated.
2.94 The committee thanks the minister for their response, which has addressed the committee’s queries as to the necessity of allowing for the delegation of the Commissioner’s powers and functions.
2.95 The committee welcomes the minister’s undertaking to consider amending the bill as suggested by the committee.
2.96 In light of the advice provided, including the minister’s undertaking to consider amending the bill to limit the categories of people to whom the Commissioner’s powers may be delegated, the committee makes no further comment on this matter.
2.97 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.[287]
2.98 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.[289] The bill provides an exhaustive list of actions that are considered ‘relevant administrative action’, which include:
• making a decision under subsection 78(1) (dealing with classification levels);
• making a decision under subsection 86(1) (dealing with priority category decisions);
• making a decision under subsection 92(1) (dealing with allocation of places to individuals);
• making a decision under subsection 93(1) (dealing with deciding the order of allocations of places to individuals);
• giving a notice under subsections 79(1), 88(1) or 92(3); or
• doing or refusing or failing to do, anything related to making a decision under subsections 78(1), 86(1), 92(1) or 93(1).[290]
2.99 The committee notes that a number of welcome oversight and safeguard mechanisms are set out in the bill, which include the following:[291]
• the System Governor may make a decision in substitution for a decision taken by the operation of a computer program if the decision taken by the operation of a computer program is not correct;[292]
• the System Governor must take all reasonable steps to ensure that relevant administrative action taken by the operation of a computer program is relevant administrative action the System Governor could validly take;[293]
• the System Governor must do the things prescribed by the rules in relation to oversight and safeguards for automation of administrative action;[294]
• if an arrangement for the use of a computer program is made, the System Governor must cause a statement to be published on the Department’s website in relation to the arrangement;[295]
• the System Governor must include the total number of substituted decisions made, the kinds of substituted decisions made, and the kinds of decisions taken by the operation of the computer program that the System Governor was satisfied were not correct.[296]
2.100 Further, the committee noted 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.[297]
2.101 In Scrutiny Digest 13 of 2024,[298] the committee requested the minister’s advice as to:
• why each of the decisions included within the definition of ‘relevant administrative decisions’ are considered appropriate for automation and whether any are discretionary in nature; and
• whether the Attorney-General’s Department was consulted to ensure a consistent legal framework regarding automated decision-making (as per recommendations 17.1 and 17.2 of the Royal Commission into the Robodebt Scheme).[299]
2.102 The minister advised that the department referred these provisions to the Attorney-General’s Department to ensure a consistent legal framework regarding automated decision-making, and that these provisions were supported by the Attorney-General’s Department as being consistent with the precedent provision on the use of automated decision-making.
2.103 The minister also advised that none of the actions listed under clause 582 are discretionary in nature. The minister advised that these decisions are made based on objectively ascertainable matters and that once relevant data is inputted into a computer program, there is no discretion involved. The minister noted particularly that the decisions made under subclauses 92(1) and 93(1) are only discretionary until rules providing for a method or procedure of allocating places are made, which would then render these decisions mandatory and based on objectively ascertainable matters.
2.104 The committee thanks the minister for this advice. The committee notes the minister’s advice that the decisions listed under clause 582 are mandatory decisions which are made based on objectively ascertainable matters and that these decisions are not discretionary in nature. The committee also notes the advice that the Attorney-General’s Department was consulted on this matter and consider these decisions to be appropriate to be made by use of a computer program.
2.105 In light of the information provided, the committee considers its concerns have been addressed and makes no further comment in relation to this matter.
2.106 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.[301]
2.107 The bill provides that amounts payable by the Commonwealth are to be paid out of the Consolidated Revenue Fund which is appropriated accordingly.[303] 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.
2.108 In Scrutiny Digest 13 of 2024,[304] the committee sought the minister’s advice as to the mechanisms in place to report to the Parliament on any expenditure authorised by the standing appropriation.
2.109 The minister provided that the bill replicates the existing Aged Care Act and the existing oversight mechanisms will continue to apply, as set out in clause 599 of the bill. This provision requires the System Governor to give the minister a report on the performance of the System Governor’s functions each financial year, to be tabled in Parliament. The report includes oversight of spending, including:
• amount of unmet demand;
• waiting periods;
• number of providers entering and exiting the market;
• financial viability of providers;
• reliance on the bond guarantee scheme;
• amount of contributions including refundable deposits; and
• building improvements in aged care homes.
2.110 The committee thanks the minister for providing advice on the parliamentary oversight available via the tabling of this report each financial year. The committee accepts the need for ongoing and flexible funding for the aged care system. The committee welcomes the minister’s advice regarding the annual report on the operation of the Act which includes matters relevant to the appropriateness of the applicable funding.
2.111 The committee reiterates that the use of standing appropriations limits accountability and scrutiny by denying Parliament the opportunity to approve expenditure through its annual appropriations processes.[306] The committee expects explanatory memoranda to bills establishing or expanding standing appropriations to explain why it is appropriate to contain an ongoing standing appropriation and the mechanisms in place to report to the Parliament on any expenditure authorised by the standing appropriation.
2.112 In this instance, in light of the need for ongoing and flexible funding for the aged care system and as clause 599 of the bill requires annual reporting to Parliament on the operation of the Act, the committee makes no further comment in relation to this matter.
[200] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Aged Care Bill 2024, Scrutiny Digest 14 of 2024; [2024] AUSStaCSBSD 223.
[201] Clause 17. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i),(ii) and (iv).
[202] Subclause 17(1).
[203] Subclause 17(2)
[204] Paragraph 18(1)(a).
[205] Paragraphs 18(1)(b)-(g).
[206] Subclause 18(2).
[207] Subclause 18(3).
[208] Clause 162.
[209] Clause 163.
[210] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) pp. 5-8.
[211] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[212] As provided for in paragraphs 18(1)(d) and (e) of this bill.
[213] See paragraphs 18(1)(d) and (e) of this bill.
[214] See clause 18.
[215] Clauses 24 and 26. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[216] Clause 23.
[217] Clause 24.
[218] Clause 25.
[219] Subclauses 26(1) and (2).
[220] Subclause 26(3).
[221] Subclause 26(3).
[222] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) pp. 8-11.
[223] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[224] See section 15AB of the Acts Interpretation Act 1901.
[225] Clauses 342, 373 and 374. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[226] Subclause 341(1).
[227] See clause 348 for functions of the Commissioner and clause 357 for functions of the Complaints Commissioner.
[228] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) p. 14.
[229] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[230] Clause 341.
[231] Subclauses 341(3), (4), and (5).
[232] Clauses 436 and 437. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[233] Subclause 436(1).
[234] Subclause 436(2).
[235] Subclauses 436(5), 436(6) and 436(8).
[236] Subclause 437(2).
[237] Subclause 437(4).
[238] Subclause 437(4).
[239] Subclauses 436(5), 436(8).
[240] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) pp. 14-17.
[241] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[242] 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).
[243] Subclauses 497(1) and 498(1).
[244] Clause 501.
[245] Subclauses 497(2) and 498(2).
[246] Explanatory memorandum, p. 372.
[247] Subclause 499(1).
[248] Subclause 499(2).
[249] Paragraphs 141(3)(p) and 507(1)(i), subclauses 141(8), 507(5) and 507(6).
[250] Subclauses 141(8), 507(5) and 507(6).
[251] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) pp. 17-21.
[252] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[253] See clauses 141 and 507 of the bill.
[254] See clause 507 of the bill.
[255] See clause 499 of the bill.
[256] Clauses 533, 536 and 541. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[257] Clause 533.
[258] Subclause 536(3).
[259] Subclause 541(6).
[260] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) pp. 21-22.
[261] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[262] See, for example, Dunstan v Orr (No. 2) [2023] FCA 1536 at [113]; Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 at [115]; Bell v State of Western Australia [2004] WASCA 205 [34].
[263] See section 15AB of the Acts Interpretation Act 1901.
[264] Clauses 538 and 539. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[265] 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.
[266] Clause 538.
[267] Subclause 538(1).
[268] Subclause 538(3).
[269] Subclause 538(4).
[270] Subclause 538(2).
[271] Clause 539.
[272] Subclauses 539(3) and (4).
[273] Subclause 539(7).
[274] Subclauses 539(10) and (11).
[275] Subclause 538(4).
[276] Subclause 539(4)
[277] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) pp. 24-27.
[278] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[279] As per paragraph 6.22 of the Office of the Australian Information Commissioner’s Australian Privacy Principle Guidelines.
[280] See section 15AB of the Acts Interpretation Act 1901.
[281] Clause 575. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii)
[282] Subclause 575(1).
[283] Subclause 575(2).
[284] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) p. 27.
[285] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[286] Subclause 572(2) concerns subdelegation where the System Governor delegates a power or function to the Repatriation Commission, who, in writing, further subdelegates that power or function to any person to whom, under section 213 of the Veterans’ Entitlements Act 1986, it may delegate powers to under that Act.
[287] See section 15AB of the Acts Interpretation Act 1901.
[288] Clause 582. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iii).
[289] Subclause 582(1).
[290] Clause 582.
[291] Clause 583.
[292] Subclause 582(4).
[293] Subclause 583(1).
[294] Subclause 583(2).
[295] Subclause 583(6).
[296] Subclause 583(7).
[297] Subclause 583(3).
[298] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) pp. 28-30.
[299] Royal Commission into the Robodebt Scheme, July 2023, p. xvi.
[300] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[301] See section 15AB of the Acts Interpretation Act 1901.
[302] Clause 598. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[303] Clause 598.
[304] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2024 (9 October 2024) pp. 30-31.
[305] The minister responded to the committee’s comments in a letter received via email on 24 October 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 14 of 2024).
[306] Senate Standing Committee for the Scrutiny of Bills, Fourteenth Report of 2005: Accountability and Standing Appropriations (30 November 2005) p. 271.
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