Quality Agency Principles Amendment Principle 2016 [F2016L00830] -Concluded matters [2016] AUSStaCSDLM 336 (9 November 2016)

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Instrument	Quality Agency Principles Amendment Principle 2016 [F2016L00830]
Purpose	Removes the methods for calculation and indexation of application fees for accreditation from the Quality Agency Principles 2013 [F2016C00652]
Last day to disallow	21 November 2016
Authorising legislation	Australian Aged Care Quality Agency Act 2013
Department	Health
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitors 6 and 7 of 2016

Removing fees from a disallowable legislative instrument

The committee commented as follows:

This Quality Agency Principles Amendment Principle 2016 [F2016L00830] (the amendment principle) removes from the Quality Agency Principles 2013 [F2016C00652] (the 2013 principles) the details of how application fees for accreditation of certain aged care services are calculated and indexed. As such, the committee agrees that the Quality Agency Act authorises the Chief Executive Officer of the Quality Agency to publish a document setting accreditation and

re-accreditation fees. However, the minister's response provided to the Scrutiny of Bills committee with respect to the Quality Agency Act indicated that these fees would be included in a disallowable legislative instrument and subject to Parliamentary oversight.

The committee acknowledges that the Australian Aged Care Quality Agency Act 2013 (Quality Agency Act) does not require these fees to be included in a disallowable legislative instrument. However, the committee notes that, when considering the bill that became the Quality Agency Act, the Scrutiny of Bills committee sought a justification from the minister for including important matters relating to the accreditation of care services in the 2013 principles. The minister's response advised that the information to be included in the quality agency principles, such as application fees, was not appropriate for inclusion in primary legislation as the information needed regular updating. The minister further justified this approach by noting that the 2013 principles would be subject to oversight by this committee.^[1]

The amendment principle removes the details of how application fees for accreditation of certain aged care services are calculated and indexed from the 2013 principles (a disallowable legislative instrument), and therefore from direct parliamentary oversight (including consideration by this committee).

The committee is concerned that the ES for the amendment principle does not provide a justification for the removal of the calculation and indexation of application fees for accreditation of certain aged care services from the Quality Agency Principles; nor information on whether it is appropriate to remove this process from a disallowable legislative instrument (thereby removing the process from the effective oversight of the Parliament).

The committee requests the advice of the minister in relation to this matter.

Minister's first response

The Minister for Health and Aged Care advised:

In regard to your query regarding removing fees from the instrument, the Quality Agency Act 2013 does not give the Minister authority to set fees for accreditation services in the instrument. Instead, section 15 of the Quality Agency Act 2013 authorises the Chief Executive Officer of the Quality Agency to publish a document setting out accreditation fees and

re-accreditation fees. This allows a transparent approach to the setting of such fees for accreditation services which is also consistent with the legislative authority in the Quality Agency Act 2013.

Committee's first response

The committee thanks the minister for her response.

The committee agrees that the Quality Agency Act authorises the Chief Executive Officer of the Quality Agency to publish a document setting accreditation and

re-accreditation fees. However, the minister's response provided to the Scrutiny of Bills committee with respect to the Quality Agency Act indicated that these fees would be included in a disallowable legislative instrument and subject to Parliamentary oversight. Therefore, the committee remains concerned that the minister's response does not provide a justification for removing from a disallowable legislative instrument the process for calculating and indexing fees for the accreditation of certain aged care services (thereby removing the process from the effective oversight of the Parliament).

The committee requests the further advice of the minister in relation to this matter.

Minister's second response

The Minister for Health and Aged Care advised:

The amendments to the Quality Agency Principles 2013 have been made to facilitate the implementation of full cost recovery of accreditation services in line with the 2015-16 Budget decision. Residential aged care services will be required to pay the full cost of accreditation services provided by the Australian Aged Care Quality Agency (Quality Agency) in line with the Australian Government's cost recovery policy. The Quality Agency will remain accountable under the Australian Government Cost Recovery Guidelines (Guidelines).

Transparency of the charging structure and fees is embedded in the Guidelines which require that the details be set out in the Cost Recovery Implementation Statement (CRIS). The draft CRIS for the cost recovery of accreditation services for residential care services was developed in accordance with the Guidelines. The draft CRIS, including the proposed fees, was open for public consultation on the Quality Agency's website from 6 May 2016 to 28 June 2016.

In line with the Guidelines, Ministerial approval of the CRIS is required. Following this, the fees are required to be publicly displayed on the Quality Agency website.

The Quality Agency must update the CRIS annually after each year of cost recovery activity, commencing with the 2016-17 financial year. The Quality Agency must include a report on expenses and revenue related to the delivery of accreditation services and provide an explanation of any material difference between them. These reporting requirements ensure transparency that the fees charged for accreditation services are commensurate with the services provided.

Collectively, these requirements ensure accountability and transparency of the Quality Agency's fee arrangements.

Committee's second response

The committee thanks the minister for her response.

The committee's inquiry in relation to this instrument arose from concerns that no justification was provided for removing details of how fees for accreditation of certain aged care services are calculated and indexed from the 2013 principles (a disallowable legislative instrument), thereby removing these matters from direct parliamentary oversight (including consideration by this committee).

The committee notes the minister's advice that the Australian Government Cost Recovery Guidelines (Guidelines), which require the details of the charging structure and fees of the Australian Aged Care Quality Agency (the Agency) to be set out in a Cost Recovery Implementation Statement, ensure accountability and transparency of the Agency's fee arrangements.

However, the committee remains concerned that the minister's response does not provide a justification for removing from a disallowable legislative instrument the process for calculating and indexing fees for the accreditation of certain aged care services (thereby removing the process from the effective oversight of the Parliament).

The committee again acknowledges that the Quality Agency Act authorises the Chief Executive Officer of the Agency to publish a document setting accreditation and re‑accreditation fees. However, the committee reiterates its previous comments with respect to the response provided to the Senate Standing Committee for the Scrutiny of Bills by the previous minister in relation to the Quality Agency Act, which indicated that these fees would be included in a disallowable legislative instrument and subject to Parliamentary oversight.

The committee has concluded its examination of the instrument. However, in light of the concerns regarding the absence of a justification for removing from a disallowable legislative instrument the process for calculating and indexing fees for the accreditation of certain aged care services, the committee draws this matter to the attention of senators.

The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Bills for information.

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[1] Senate Standing Committee for the Scrutiny of Bills, Sixth Report of 2013 (19 June 2013), Australian Aged Care Quality Agency Bill 2013 (see p. 4 of the correspondence from the minister, The Hon Mark Butler, MP, attached to the report).