Aged Care and Other Legislation Amendment (Royal Commission Response No 2) Bill 2021 [2021] AUSStaCSBSD 213 (21 October 2021)

• Chapter 1
• Initial scrutiny
• Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021
• Broad delegation of administrative powers1
• Legislative instrument not subject to disallowance2
• Civil penalties
• Significant matters in delegated legislation
• Privacy15
• Reversal of the evidential burden of proof17

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Chapter 1

Initial scrutiny

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

Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021

Purpose	This bill seeks to amend the Aged Care Act 1997 (Aged Care Act), the Aged Care Quality and Safety Commission Act 2018 (Quality and Safety Commission Act), the Aged Care (Transitional Provisions) Act 1997 (Transitional Act), the National Health Reform Act 2011 (National Health Reform Act), the Veterans’ Entitlements Act 1986, the Military Rehabilitation and Compensation Act 2004, and the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 to implement eight measures in response to recommendations of the Royal Commission into Aged Care Quality and Safety (Royal Commission).
Portfolio	Health
Introduced	House of Representatives on 1 September 2021

Broad delegation of administrative powers^[1]

1.2 Item 51 of Schedule 1 to the bill seeks to repeal and substitute subsection 96‑2(14) of the Aged Care Act 1997 to provide that the Secretary may delegate all of the Secretary's powers and functions under Part 2.3 of the Aged Care Act to a person making an assessment for the purposes of section 22-4.

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

1.4 The explanatory memorandum in this instance contains no justification as to why it is appropriate that the Secretary may delegate their powers to any person. The committee notes that current subsection 96-2(14) of the Aged Care Act provides a similarly broad delegation power. However, the committee does not consider that consistency with existing legislation is a sufficient justification for the inclusion of broad delegations of administrative powers.

1.5 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 Secretary's functions or powers under Part 2.3; 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.

Legislative instrument not subject to disallowance^[2]

1.6 Item 4 of Schedule 2 to the bill seeks to insert proposed section 7A into the Aged Care Quality and Safety Commission Act 2018 (Aged Care Quality and Safety Act) to provide that the minister may make a determination, by legislative instrument, that a law of a State or Territory is an 'aged care screening law'. A note under the proposed subsection confirms that these determinations will not be subject to disallowance due to the operation of subsection 44(1) of the Legislation Act 2003.

1.7 The committee expects that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum. In this instance, the explanatory memorandum states:

A note under this subsection provides that a legislative instrument made under new section 7A is not subject to section 42 (disallowance) of the Legislation Act (see subsection 44(1) of the Legislation Act). This recognises that it is undesirable for Parliament to disallow instruments that have been made for the purposes of a multijurisdictional body or scheme, as disallowance would affect jurisdictions other than the Commonwealth. If a determination under new section 7A is disallowed, the Aged Care Quality and Safety Commission (Commission) would be limited in its ability to properly perform its functions or unable to perform them at all.^[3]

1.8 At a general level, the committee does not consider the fact that section 44 of the Legislation Act 2003 applies to an instrument is, of itself, a sufficient justification for excluding parliamentary disallowance.^[4] The committee agrees with the comments of the Senate Standing Committee for the Scrutiny of Delegated Legislation that 'any exclusion from parliamentary oversight... requires that the grounds for exclusion be justified in individual cases, not merely stated'.^[5] It is unclear to the committee how allowing for disallowance would limit or prevent the Aged Care Quality and Safety Commission from performing its functions.

1.9 The issue of exemption from disallowance has been highlighted recently in the committee's review of the Biosecurity Act 2015,^[6] the inquiry of the Standing Committee for the Scrutiny of Delegated Legislation into the exemption of delegated legislation from parliamentary oversight,^[7] and a resolution of the Senate on 16 June 2021 emphasising that delegated legislation should be subject to disallowance and sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances.^[8]

1.10 The committee therefore requests the minister's more detailed advice regarding:

• why it is considered necessary and appropriate to provide that determinations made under proposed section 7A are not subject to disallowance; and

• whether the bill could be amended to provide that these determinations are subject to disallowance to ensure that they are subject to appropriate parliamentary oversight.

Significant matters in delegated legislation^[9]

1.11 Schedule 3 to the bill seeks to amend the Aged Care Quality and Safety Act to introduce a Code of Conduct that will apply to approved providers and their aged care workers and governing persons. Item 9 of Schedule 3 to the bill seeks to insert proposed section 18A to provide the code functions of the Aged Care Quality and Safety Commissioner (Commissioner). Proposed subsection 18A(1) provides that the code functions of the Commissioner are to, in accordance with the rules, deal with information given to the Commissioner relating to a failure by an approved provider, aged care worker or governing person to comply with the Code of Conduct. Item 10 of Schedule 3 to bill amends the existing rule making provisions in section 21 of the Aged Care Quality and Safety Act to reflect the matters included in proposed section 18A.

1.12 Item 11 of Schedule 3 seeks to insert proposed section 74AE to provide that the rules may make provision for, or in relation to, a code of conduct for approved providers, aged care workers and governing persons. There is no additional detail on the face of the bill as to the kinds of matters that may be included in the Code of Conduct.

1.13 The committee's consistent view is that significant matters, such as the details of a Code of Conduct and how information in relation to a failure to comply with the Code of Conduct will be dealt with, should be included in primary legislation unless a sound justification for the use of delegated legislation has been provided. In this instance, the explanatory memorandum contains no justification for leaving these matters to delegated legislation beyond noting that 'this will allow flexibility to appropriately tailor the Code of Conduct'.^[10]

1.14 The committee's concerns in this instance are heighted noting the proposed penalties for contravention of the Code of Conduct are 250 penalty units. The committee notes that 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.

1.15 The committee requests the minister's more detailed advice as to:

• why it is considered necessary and appropriate to leave the making of a Code of Conduct for approved providers and aged care workers, and how information in relation to a failure to comply with the Code of Conduct will be dealt with, to delegated legislation; and

• whether the bill could be amended to include at least high-level guidance regarding these matters, including in relation to the content of the Code of Conduct, on the face of the primary legislation.

Broad discretionary power

Significant penalties^[11]

1.16 Schedule 3 to the bill seeks to amend the Aged Care Quality and Safety Act to provide new powers for the Commissioner to impose banning orders on aged care workers and governing persons of approved providers. Proposed subsection 74GC(2) provides that the banning order may apply generally or be of limited application, be permanent or for a specified period and be made subject to specified conditions.

1.17 The committee considers that this provision provides the Commissioner with a broad discretionary power to impose conditions on banning orders in circumstances where there is no guidance on the face of the bill as to how or when the power should be exercised. The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory materials. In this instance, the explanatory memorandum states:

Without limiting the kinds of conditions that may be imposed, it is anticipated that the types of conditions the Commissioner may impose on a banning order may include, for example, that an individual that is the subject of a banning order must provide a copy of that banning order to prospective employers where the banning order restricts them from engaging in some but not all activities related to aged care service provision. This will assist prospective employers to ensure the worker is not involved in those activities. Another type of condition that may also be imposed is one that requires the subject of the banning order to undertake and successfully complete specified training or skills development and provide evidence of this to the Commissioner.^[12]

1.18 While noting this explanation, it is unclear why at least high-level guidance cannot be provided on the face of the primary legislation as to the types of conditions that can be imposed. The committee notes that when considering whether to implement a banning order, the Commissioner must have regard to a number of suitability matters that are set out on the face of the primary legislation.^[13]

Civil penalties

1.19 Proposed subsection 74GD(1) provides that if an individual engages in conduct that breaches a banning order, or a condition of a banning order, that is in force against an individual, a civil penalty of 1,000 penalty units may be imposed.

1.20 The explanatory memorandum states:

The high civil penalty for contravening these subsections reflects the importance of complying with a banning order by both individuals and approved providers to ensure the safety, health and wellbeing of care recipients. This is appropriate given the nature of a banning order and its application in only the most egregious forms of misconduct.^[14]

1.21 Noting the broad discretionary nature of the Commissioner's power to impose conditions on a banning order and the lack of guidance on the face of the bill as to the types of conditions that can be imposed, the committee has scrutiny concerns regarding the imposition of a significant civil penalty for persons who breach conditions of banning orders. For example, in cases where a person is required to comply with banning order conditions but has since left the aged care sector, it is unclear to the committee whether these conditions—which may include compulsory training—would remain enforceable, with failure to comply resulting in a civil penalty of up to $222,000. In this context, the committee does not consider the explanatory memorandum has adequately explained why it is appropriate to provide a civil penalty of up to 1,000 penalty units for the breach of a condition of a banning order.

1.22 The committee therefore requests the minister's advice as to:

• why it is considered necessary and appropriate to provide the Commissioner with a broad discretion to impose specified conditions on a banning order;

• whether the bill can be amended to provide at least high-level guidance as to the conditions that may be placed on a banning order; and

• why it is considered necessary and appropriate to apply a significant civil penalty to breaches of specified conditions on banning orders.

Significant matters in delegated legislation
Privacy^[15]

1.23 Item 25 of Schedule 3 to the bill seeks to insert proposed section 74GI into the Aged Care Quality and Safety Act to provide that the Commissioner must establish and maintain a register of each individual against whom a banning order has been made, that includes the person's name, ABN, the details of the banning order and any other information specified by the rules. Proposed subsection 74GI(4) also provides that the rules may make provision for the correction of information, making the register, or specified information, publicly available and any other matters relating to the administration or operation of the register.

1.24 The committee's view is that significant matters, such as the matters that can be included on a register that may be public, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum states:

It is not anticipated that the matters which may be included in the register prescribed by the rules will extend to any highly sensitive or highly personal information about the person subject to the banning order. However, in some instances, such as where an individual or business has a common name, it may be necessary to include further information, to publish an amount of information that is sufficient to ensure the person can be identified. This would not extend, for example, to the nature of the incident/s that prompted the making of the banning order.^[16]

1.25 While noting the explanation in the explanatory memorandum, the committee notes that there is nothing on the face of the bill which would prevent the inclusion of highly sensitive or highly personal information about persons on the Register. As a result, the committee notes that the potential disclosure of information regarding persons subject to banning orders will not be subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.26 The committee therefore requests the minister's advice as to:

• why it is considered necessary and appropriate to leave significant matters, such as what personal information can be included on the register of banning orders, to delegated legislation, noting the potential impact on a person's privacy; and

• whether the bill can be amended to set out further details as to the information that can be included, or not included, on the register on the face of the primary legislation.

Reversal of the evidential burden of proof^[17]

1.27 Item 78 of Schedule 8 to the bill seeks to amend the National Health Reform Act 2011 to insert proposed section 215A, which provides that an official of the Pricing Authority may disclose certain information to the Aged Care Advisory Committee or a committee established under section 205 of the Act. Proposed subsection 215A(2) provides that a person commits an offence if the person is a member of these committees and discloses or uses protected Pricing Authority information. Proposed subsection 215A(3) provides an exception (offence-specific defence) to this offence, stating that the offence does not apply if the disclosure or use was for the purposes of the Act; was for the purposes of the performance of the functions of the committee; or was in the course of the person's service as a member of the committee.

1.28 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[18] 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.

1.29 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. In this instance, the explanatory memorandum states:

1.30 The committee notes that the Guide to Framing Commonwealth Offences^[19] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[20]

1.31 In this case, it is not apparent these matters are matters peculiarly within the defendant's knowledge, and that it would be difficult or costly for the prosecution to establish the matters. While acknowledging that the explanatory memorandum states that this is the case, no additional detail or justification is provided. These matters may therefore be matters more appropriate to be included as an element of the offence.

1.32 The committee requests the minister's detailed justification as to the appropriateness of including the specified matters as an offence-specific defence. The committee suggests that it may be appropriate if proposed subsection 215A(3) were amended to provide that the relevant matters are elements of the offence. The committee requests the minister's advice in relation to this matter.

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^[1] Schedule 1, item 51. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

^[2] Schedule 2, item 4, proposed section 7A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

^[3] Explanatory memorandum, p. 56.

^[4] The committee further notes that the Senate Standing Committee for the Scrutiny of Delegated Legislation has recommended that the Legislation Act 2003 be amended to repeal the blanket exemption of instruments facilitating the establishment or operation of an intergovernmental body or scheme from disallowance and sunsetting. See Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, 16 March 2021, p. 107.

^[5] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, 16 March 2021, pp. 75–76.

^[6] Scrutiny Digest 7 of 2021, chapter 4, pp. 33-34.

^[7] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report, December 2020; and Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, March 2021.

^[8] Senate Resolution 53B. See Journals of the Senate, 16 June 2021, pp. 3581–3582.

^[9] Schedule 3, item 9, proposed section 18A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

^[10] Explanatory memorandum, p. 67.

^[11] Schedule 3, item 25, proposed section 74GC and proposed subsection 74GD(1). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (ii).

^[12] Explanatory memorandum, p. 72.

^[13] See item 26 of Schedule 5 to the bill, proposed section 8C.

^[14] Explanatory memorandum, p.73.

^[15] Schedule 3, item 25, proposed section 74GI. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

^[16] Explanatory memorandum, p.75.

^[17] Schedule 8, item 78, proposed section 215A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[18] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

^[19] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

^[20] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.