Coalition Senators note the Aged Care Amendment (Implementing Care Reform) Bill 2022 and thank the Committee Secretariat for its work in collating submissions, arranging the public hearing, and extends thanks to all witnesses and submitters to this inquiry.
The Coalition is committed to supporting the health, safety and wellbeing of older Australians and understands the important role that aged care providers, care workers and nurses play in ensuring this support is provided in residential aged care settings.
However, Coalition Senators are of the view that this bill does not provide the necessary detail to transparently inform providers, the sector or the general public of the requirements to be imposed on aged care homes.
Much of the detail of this policy reform will be determined by subordinate or delegated legislation, of which there are currently no details. These concerns were continuously expressed throughout the Committee Inquiry.
For a government that was elected on a platform to ‘increase transparency’, Coalition Senators consider it hypocritical and disappointing that they are proposing the Parliament votes on an opaque bill.
Subordinate Legislation
This bill relies heavily on subordinate legislation, particularly for Schedules 1 and 3. Instead of this important legislation being complex and informative, Coalition Senators regard this bill as more of a legislative framework that does not actually contain the necessary details on how the legislation will affect providers in practice.
Coalition Senators note the widespread concerns raised by the sector, providers, unions and peak bodies regarding the lack of transparency and ability for adequate Parliamentary scrutiny of the subordinate legislation.
Throughout the 34 written submissions received by the Committee, many submissions raised concerns regarding the secretive processes in which exemption clauses are being drafted, what will constitute a provider being ‘exempt’, how exemptions will differ for providers in regional areas compared to cities and the consequences for providers if they are unable to meet the legislative requirement. This legislation prompts more questions than provides answers:
Senator RUSTON: … am I right to assume that your recommendation would still be that you would like to see what's contained in the subordinate legislation before we proceed?
Mr Sadler: Yes; that is correct. We believe this is a really important power that we are granting to the government. It is consistent with the ALP's pre-election commitments. But we would say that, until we know the detail of how exemptions are going to operate, we do run a risk that we could end up with unintended consequences, even up to the closure of aged-care services across regional Australia if they cannot obtain the staff that are going to be required.
Coalition Senators have concerns regarding the sector’s expectation that they will see, and have the opportunity to comment on, the proposed exemption clause to be determined by sub-ordinate legislation, as the clauses are to be publicly released around 1 April 2023. This is despite the legislation, and its possible consequences, coming into effect three short months later, by 1 July 2023.
Senator RUSTON: The first part of my question was when we are likely to see any details of this subordinate legislation.
Ms Metz: The proposal for schedule 1 is that it will start ahead of 1 April next year. The consultation will be ongoing up until that time.
Senator RUSTON: So you won't know what the exemptions are in relation to something that is coming into effect on 1 July 2023 until April 2023?
Ms Metz: It will be ahead of 1 April when that exemption framework will commence.
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Senator RUSTON: So you're comfortable with not knowing what the government intends to do in relation to exemptions—how they operate, how the caps are determined and what kind of information is going to be required under transparency? You're cool not knowing that when you're voting on the framework legislation that sits above it?
Ms Edmonds: We're taking the presumption that the subordinate legislation will be put out for review and consultation, as with any piece of legislation, in which case we can then make comment on that.
Mr Henschke: I'd be happy with that, too.
Coalition Senators are uncomfortable with the brief 90-day window that the sector and providers will have to try and seek exemptions, without any prior knowledge of what the exemption clauses will be, how they will differ depending on where the providers are located and if they will take into account the context of current workforce shortages. These concerns were also shared by the sector:
Senator RUSTON: Do you have a concern that, without the proper provisions, that challenge in rural, regional and remote areas will be exacerbated by any enforced requirement for additional staffing elsewhere?
Mr Sadler: I think what will happen is that we will see aged-care services in rural and regional Australia struggle to obtain the staff. We are already in competition for registered nurses with state health authorities and private medical practices that use nurses in regional locations. It will be important for the wage case that is currently before the Fair Work Commission to be resolved and for that to be fully funded by government to increase our potential to recruit the staff required. You will have seen from our submission that we are asking for a really conscious policy effort by government to support aged-care providers across regional and rural Australia to obtain these staff. If this is done through a series of punitive mechanisms, that will end up in a really bad position for aged-care residents, in our view.
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Senator RUSTON: It's also interesting they say 'may provide' as opposed to 'will provide'. Nicole, I just want to ask you if you have similar concerns about the lack of detail and the proposal for much of the detail to be included in subordinate legislation, which we have yet to see any detail of.
Dr Brooke: I support a lot of what Paul has said in terms of a real concern around that transparency, particularly around what that risk management process, which I would imagine that exception process—I'd really encourage it to be a risk managed assessment. But it really needs a lot of transparency, both for the public and for the sector, around what those exceptions are and how frequently they're going to be reviewed. I hold concerns.
Coalition Senators are particularly concerned about possible additional burdens or requirements being placed on regional and rural providers if exemption clauses are not adequately drafted, noting their unique circumstances due to their geographical locations. These concerns were shared by the National Aboriginal Community Controlled Health Organisation (NACCHO):
In order to meet the recommendations of the Royal Commission and the National Agreement and ensure Aboriginal and Torres Strait Islander people receive aged care from the most appropriate organisations, consideration must be given to alternative staffing models for services in urban, regional, rural, remote and very remote locations.
The cost to providers of poorly drafted exemption clauses has the potential to be detrimental for rural and regional providers. Specifically, consideration should be given for whether there will be requirements around the use of locums should, for example, the Registered Nurses (RN) in a regional community be unwell or wish to take a well-deserved holiday.
Coalition Senators believe further information from the Government on this critical matter is needed to ensure that regional and rural providers are supported and not dismissed by this Government.
Registered Nurses on site 24/7
Coalition Senators note the former Government established the Royal Commission into Aged Care Quality and Safety that produced a range of recommendations, and acknowledge that we need to do more to ensure senior Australians are treated with respect, care and dignity and have access to quality care as they age. Recommendation 86 of the Royal Commission report recommends an RN be on site 24/7 at every aged care facility around Australia.
Coalition Senators note that this requirement was recommended by the Royal Commission to be coupled with appropriate minimum care minutes, being that the average resident has at least 215 care minutes per day, with at least 44 minutes of that staff time provided by a registered nurse.
Noting the extensive consultation, analysis and hearings conducted by the Royal Commission, which looked into a suite of factors like current workforce shortages and provider capacity to implement changes, the suggested commencement date of Recommendation 86 was 1 July 2024, to allowing sufficient time for it to be implemented in full.
Coalition Senators support the recommendation of the Royal Commission. By decoupling the requirement for an RN to be on site 24/7 from the minimum care minutes requirement, Labor is disingenuously rushing to deliver an election commitment rather than genuinely seeking improvements to the sector and supporting vulnerable older Australians.
Submissions and witness statements highlighted this current shortened timeframe poses a concern to providers as they will likely need more time to hire the requisite workforce:
There is a risk that many services may need to close, or that providers will leave aged care, especially in areas where there are no other services available. There is a known undersupply of health and care staff across the sector—in aged care, this includes registered nurses. The aged care industry needs adequate time to recruit and train additional staff.
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NACCHO strongly supports a staged approach based on recommendation 86 from the Royal Commission.
A point reiterated by the Aged and Community Care Providers Association:
We remain committed to increased staffing. However, we cannot ignore the reality that for many organisations the workforce target will not be achievable.
Coalition Senators call on the government to take into account the witness testimonies and submissions to ensure the aged care sector is adequately equipped and supported to successfully implement these changes.
Further, Coalition Senators note the public importance regarding the need to release the modelling that states ‘869’ additional nurses will be required to ensure every aged care facility across Australia will have a RN onsite 24/7. This modelling was referred to by the current Minister for Aged Care, Minister Wells during Question Time this year. However, Coalition Senators note that when the Department of Health was asked how many additional RNs would be required and what factors were considered in the determination of that number, they were unable to provide details or precisely confirm the Minister’s answer.
Senator RUSTON: Subsequent to that, have you or the department done any modelling on the ability to actually meet that commitment by 1 July 2023?
Mr Richardson: Are you talking about workforce requirements?
Senator RUSTON: Yes.
Mr Richardson: Yes, there's been some modelling done. To introduce 24/7, there's approximately an additional 850 to 900 registered nurses required.
Senator RUSTON: Are you able to provide that modelling?
Mr Richardson: I'm sure we can take that on notice and provide some information around how those figures were determined.
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Senator RUSTON: Okay, and if you could provide the modelling, that would be great. … What will be the increase in the workforce to meet the commitments for the registered nurse workforce for both those bills?
Mr Lye: Senator, we have provided numbers in the past, but I think we'd like to take that on notice. It's obviously dynamic, and we know that the Fair Work Commission case is likely to influence the numbers that we will have in front of us as well. I think we could go away and have a look and try and give you an answer to that, but you're after the cumulative impact of all the different changes?
The Coalition Senators note the importance of having a RN on site 24/7 in aged care facilities, and supports older Australians receiving the best quality care, but Coalition Senators note that there are still a considerable number of questions to be answered to ensure that this legislation does not inadvertently negatively impact the sector.
Transparency
Aged care providers are already required to produce copious amounts of data across a range of areas to the Department of Health to inform consumers, regulators and the sector of the current arrangements within aged care facilities. Witnesses to the committee inquiry had widespread concerns regarding the subordinate legislation that will have effect to Schedule 3 of this legislation, as it is not clear what additional information will be published to increase sector transparency.
Again, the government has stated that they will increase transparency for the sector, yet ironically, there is little transparency regarding details of the subordinate legislation.
Coalition Senators asked the department numerous questions throughout the public hearing to better understand the impact of this legislation, which were taken on notice. The department had yet to respond by both the agreed deadline and when the committee was due to report.
Coalition Senators note the importance of continual reform of the aged care sector and recognise that the former government committed $19.1 billion to this reform.
Coalition Senators are disappointed with the considerable lack of detail contained in the bill in its current form, and the potential lack of oversight and scrutiny afforded to the effects of this bill due to its reliance on yet to be drafted subordinate legislation.
Senator Anne Ruston
Senator Slade Brockman
Senator Jacinta Nampijinpa Price