Chapter 2Views on the bill
2.1This chapter discusses the views raised in submissions to the Senate Community Affairs Legislation Committee’s (committee’s) inquiry into the Inspector‑General of Aged Care Bill 2023 (IGAC bill) and the Inspector‑General of Aged Care (Consequential and Transitional Provisions) Bill 2023 (CTP bill) (together, the bills).
2.2In discussion of the bills, the following matters were raised:
the human rights-based approach of the new Aged Care Act recommended by the Royal Commission;
the scope of the role of the Inspector‑General of Aged Care (Inspector‑General), and its delineation from the roles of other regulatory bodies;
the conduct of reviews and reporting requirements;
the frequency of reviews of the implementation of the Royal Commission's recommendations;
protections from criminal, civil, and administrative liability;
the Inspector‑General's consultation processes;
the absence of a function to investigate individual complaints; and
the required qualifications and experience of the Inspector‑General and their office.
Human rights
2.3The Royal Commission recommended that the Aged Care Act 1997 be replaced with a new Act to come in force by no later than 1 July 2023. Recommendations 1, 2 and 3 of the Royal Commission called for the new Act to take a human rights-based approach, with the paramount considerations of ensuring the safety, health and wellbeing of people receiving aged care, and putting older people first so that their preferences and needs drive the delivery of care.
2.4Several submitters expressed disappointment that the bills were not explicit about the role of the Inspector‑General in protecting and promoting the rights of older people accessing aged care services.
2.5The Older Persons Advocacy Network (OPAN) recommended that the IGACbill make explicit the Inspector‑General’s oversight role of human rights across the Australian aged care system, in line with the proposed new human rights‑based Aged Care Act. OPAN also suggested that all reports of the Inspector‑General should include assessment of the functioning of the proposed Aged Care Act in protecting the rights of older people who are seeking or receiving aged care.
2.6Similarly, the Aged Rights Advocacy Service (ARAS) noted that it was 'deeply concerned' that the bills are 'silent on the human rights of older Australians, despite recommendations made by the Royal Commission'. ARAS called for the IGACbill to incorporate a rights-based approach, aligned with the proposed principles and objects of a new Aged Care Act. ARAS also suggested that the Inspector‑General could engage with the United Nations Human Rights Council and other similar bodies to develop understanding of systemic issues, raise awareness of Australia's obligations, and develop benchmarks for best practice.
2.7Allied Health Professions Australia (AHPA) suggested that the IGAC bill could be better aligned with a human rights-based approach by replacing the phrase 'facilitate positive change for older Australians' in its objects with wording such as 'develop and maintain high standards of aged care quality and safety for older Australians and in accordance with human rights obligations'.
2.8LGBTIQ+ Health Australia submitted that the bills should include appropriate references to human rights standards and mechanisms, to ensure that the Inspector‑General is able to enforce the human rights-based approach of the proposed new Aged Care Act.
2.9The Australian College of Nursing submitted that the IGAC bill aligns with and promotes the right to an adequate standard of living and the right to health, in accordance with Australia's international obligations.
2.10The explanatory memorandum notes that the IGAC bill promotes the human right to health by 'holding the Commonwealth to the highest standard in its governance, regulation and administration of aged care'. The IGAC bill gives the Inspector‑General powers to investigate where those standards may not be being met and to make recommendations for improvement as appropriate.
Role and scope of the Inspector‑General and other entities
2.11Some submitters voiced concerns about potential overlap between the role and functions of the Inspector‑General and other entities in the aged care system.
2.12Carers NSW submitted that more information was required as to how the Inspector‑General would be placed within the context of the aged care system and how it would integrate with existing entities. It was suggested that more clarity would be required in cases of apparent overlap between the responsibilities of the Inspector‑General and those of the entities for which it has oversight. Carers NSW recommended that there should be clear boundaries and a streamlined interface between existing agencies and the Inspector‑General.
2.13The Office of the Commonwealth Ombudsman (OCO) submitted that the overlap between its own functions and those of the Inspector‑General would be manageable. The OCO noted that its own ability to initiate investigations of systemic issues arising from the exercise of powers or functions under aged care law by relevant departments and prescribed authorities resembled those described in the IGAC bill. Furthermore, the OCO noted that overlapping obligations to report misconduct by Commonwealth officials were limited and manageable. The OCO suggested that limited overlap in roles would be preferable to a gap in oversight, as it would at least partially mitigate the risk of systemic issues falling between the cracks.
Powers to investigate individual complaints
2.14According to the Recommendation 12 of the Royal Commission, the Inspector‑General should be responsible for reviewing the performance of, and dealing with complaints about, the System Governor, the Quality Regulator, the Prudential Regulator and the Pricing Authority.
2.15The Royal Commission's final report also noted the value of individual complaints in shedding light on systemic problems by providing a practical sense of issues facing people receiving aged care. The Royal Commission proposed that if the InspectorGeneral had only a systemic oversight view, without any responsibility for complaint handling, there would be a risk that it would never develop the understanding needed to identify systemic issues. The Royal Commission therefore envisaged in Recommendation 98(2) that where people were dissatisfied with the way their complaint was handled by the Quality Regulator, those people could refer their complaints to the Inspector‑General.
2.16The IGAC bill does not give the Inspector‑General powers to investigate individual complaints, and makes it explicit that the Inspector‑General's reviews will not relate to individual complaints and actions.
2.17The explanatory memorandum emphasises that the Inspector-General will carry out its functions and exercise its powers by applying a system-wide lens, and is not permitted to monitor and investigate a single exercise of power, or a single performance of a function or duty, under an aged care law. The Inspector‑General therefore does not have responsibility for investigating individual complaints about the System Governor, the Quality Regulator, the Prudential Regulator and the Pricing Authority.
2.18Several submitters expressed disappointment that the Inspector‑General would not have a role in addressing individual complaints. For example, Aged Care Justice and Aged Care Reform Now submitted that, if the Inspector‑General were to have responsibility for hearing individual complaints, it would be better informed of any serious mismanagement of the complaints process, allow transparency, and build consumer confidence.
2.19Mr Charles Maskell-Knight PSM, who served as a senior adviser to the RoyalCommission from 2019 to 2021, suggested that if one of the objectives of the Inspector‑General was to review the operations of other government bodies, review of particular decisions by one of those bodies seemed entirely consistent with the overall objective.
2.20The National Aboriginal and Torres Strait Islander Ageing and Aged Care Council (NATSIAACC) submitted that for the Inspector‑General not to have responsibility for dealing with complaints about the System Governor, the Quality Regulator, the Prudential Regulator or the Pricing Authority might hamper the ability of the Inspector‑General to hold the aged care system accountable.
2.21OPAN submitted that feedback from older people about how complaints have been handled would have been an important source of data for the Inspector‑General, to inform their identification of systemic issues.
2.22Aged and Disability Advocacy Australia (ADA Australia) supported the Inspector‑General's oversight role of key entities, and looked forward to a review of the complaints management framework of the Aged Care Quality and Safety Commission.
2.23OCO noted that the resolution of individual complaints would continue to be managed by the relevant entities themselves, while OCO would continue to have oversight of the administrative actions of those entities in handling complaints.
2.24The Aged and Community Care Providers Association (ACCPA) supported a separation of the complaint handling and complaint management roles, but suggested that the Inspector‑General's oversight role could be strengthened by considering analysis of complaints data about, or held by the System Governor, the Quality Regulator, the Prudential Regulator, and the Pricing Authority.
2.25The Department of Health and Aged Care submitted that the IGAC bill establishes the Inspector‑General's oversight of the complaints management framework across the aged care system, while not requiring the Inspector‑General to actively investigate individual complaints as recommended by the Royal Commission. The Department of Health and Aged Care proposed that this approach safeguards the Inspector‑General's independence and impartiality, and ensures the role and functions complement, rather than duplicate, those of other government agencies.
Independence
2.26According to the explanatory memorandum, the IGAC Bill gives the Inspector‑General complete discretion in carrying out its functions and powers, and appropriately limits directions, including from the Minister.
2.27The explanatory memorandum clarifies that preserving the independence of the Inspector‑General from the bodies it oversees is a reason for not making the Inspector‑General an escalation point for individual complaints. In practice, this is intended to enable the Inspector‑General to maintain oversight of complaints management processes across the aged care system, rather than playing an active role in considering individual complaints.
2.28ARAS suggested that the inclusion of guiding principles in the IGAC bill such as independence, accountability, integrity, impartiality and rights would direct and clarify the work of the Inspector‑General, while promoting objectivity and transparency.
2.29NATSIAACC commended the establishment of the Inspector‑General as a statutory office to maximise its independence.
2.30OPAN submitted that the independence of the Inspector‑General could be further protected by precluding any person involved in funding, regulating or delivering aged care services in the previous three to five years from being appointed to the role.
2.31The Department of Health and Aged Care gave evidence that the IGAC bill appropriately balanced the powers necessary for the Inspector‑General to have effective oversight while ensuring their independence and providing natural justice to all parties it oversees.
Reviews and reporting
2.32Submitters were broadly supportive of the Inspector‑General's powers to initiate and undertake reviews, and to compel government entities to respond to review recommendations.
2.33ACCPA submitted that the Inspector-General's reviews would be integral to its role in driving improvements across the sector and achieving greater accountability and transparency across the aged care system.
2.34OPAN supported the Inspector‑General's coercive evidence‑gathering powers, including the ability to compel a government entity to respond to the recommendations of a review and publish that response.
2.35ACCPA, Aged Care Justice (ACJ) and Aged Care Reform Now (ACRN) suggested that the Inspector‑General's review powers might more accurately reflect Recommendation 12 of the Royal Commission if there were more specific requirements to undertake systemic performance reviews of the Aged Care Quality and Safety Commission and other government entities involved in aged care.
2.36ADA Australia suggested that the publication of review reports would not, alone, be sufficient to ensure that recommendations would be implemented. ADA Australia proposed that the government be required to respond to review reports, and provide details and timeframes of how and when recommendations would be implemented.
Reviews of implementation of Royal Commission recommendations
2.37Submitters were broadly supportive of the requirement for the Inspector‑General to periodically review the progress of the implementation of the RoyalCommission's recommendations.
2.38Several submitters called for progress reviews to be undertaken more frequently than the five-year intervals provided in the IGAC bill. For example, AHPA called for reports to be made at least every six months, consistent with Recommendation 148(1) of the Royal Commission.
2.39ACJ and ACRN suggested that the progress reports be made annually, commencing in 2024, which they argued would ensure a coordinated and effective approach to implementing the Royal Commissions' recommendations, as well as to allowing changes to approach or strategy if required.
2.40ACCPA also supported annual reporting on implementation, to be in closer alignment with the Royal Commission's recommendation.
2.41The Aged Care Quality and Safety Commission supported the requirement for five-yearly progress reviews, noting that this would be complemented by ad‑hoc reviews and ongoing monitoring, investigation and reporting of systemic issues within the aged care system.
Protections from liability
2.42ADA Australia noted that protections from civil, criminal or administrative liability for people who provide information were a 'useful and important' way to encourage engagement with the Inspector‑General. However, ADAAustralia raised concerns that these provisions may also provide protection from prosecution even where evidence indicates that an individual or entity intentionally caused harm.
2.43The Department of Health and Aged Care submitted that strong protections for people who disclose information or provide assistance to the Inspector‑General would contribute to the establishment of improved whistle-blower protections across the aged care system recommended by the Royal Commission.
Consultation
2.44Several submitters suggested that the Inspector‑General should be required to consult with the aged care sector and the community, particularly in the development of the annual work plan.
2.45AHPA submitted that, while the Inspector‑General's independence must be guaranteed, it should be 'legislatively embedded in a consultative structure that requires and facilitates effective input from the aged care sector on systemic concerns'. AHPA recommended that the Aged Care Advisory Council and the Council of Elders should be resourced to regularly engage with the Inspector‑General, and that an additional stakeholder consultative mechanism be established.
2.46ACCPA submitted that the health care sector should be consulted on the development of the Inspector-General's annual work plan, to enable the sector to contribute to the prioritisation of systemic issues.
2.47Carers NSW suggested that clear parameters should be made for the Inspector‑General to routinely consult with the community and the aged care sector on proposed work plans, to encourage greater collaboration and trust.
2.48Housing for the Aged Action Group called for there to be genuine and meaningful consultation with older people from diverse backgrounds and lived experience in the Inspector‑General's consultation processes.
Qualifications and experience
2.49Several submitters suggested that the proposed legislation may not sufficiently prescribe the required qualifications, expertise and experience of the Inspector‑General or their office.
2.50The Australian Nursing and Midwifery Federation (ANMF) expressed 'grave concerns' that there was no requirement for the Inspector‑General to have clinical expertise or experience. The ANMF submitted that an evidence‑based clinical lens should underpin all decisions of the Inspector‑General and was essential to guarantee safe service provision. The ANMF warned that appointing an Inspector-General without clinical expertise and experience risked 'continuing the failures of the current system'.
2.51ARAS submitted that officials from the Office of the Inspector‑General should have a multi-disciplinary and multi‑agency skill set, complementing knowledge of the aged care sector with familiarity with relevant statutory agencies, programs, and their regulatory responsibilities.
2.52ACCPA sought clarification regarding requirements for expertise and qualifications in appointing the Inspector‑General. ACCPA provided two examples of other legislation concerning the appointment of Inspectors and Inspectors‑General. First, the Inspector‑General of Water Compliance must 'have a high level of expertise in one or more fields relevant to the Inspector‑General’s functions'. Second, the Inspector of the National Anti-Corruption Commission must be either a retired judge, or have been enrolled as a legal practitioner for at least five years.
2.53The committee notes the appointment of Mr Ian Yates AM as Interim Inspector‑General of Aged Care. Mr Yates's experience includes 20 years as Chief Executive of the Council on the Ageing (COTA) Australia. Mr Yates has also been Chair of the Aged Care Council of Elders, and has served as a Member of the National Aged Care Advisory Council, the Aged Care Quality and Safety Advisory Council, and the Aged Care Financial Authority.
Committee view
2.54The recommendations of the Royal Commission provided a framework for fundamental reform to Australia's aged care sector, to ensure that older Australians receive the quality care they deserve.
2.55A new Aged Care Act is being drafted to advance the Royal Commission's key recommendations, and is anticipated to be introduced later in 2023. This work has been complemented by other urgent reform measures, including the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 which passed the parliament in early August 2022, and the Aged Care Amendment (Implementing Care Reform) Bill 2022, which was passed in late October 2022.
2.56The bills that are the subject of this inquiry are a further urgent and important step in implementing the Royal Commission's recommendations.
2.57The committee is encouraged to note that submitters to the inquiry were unanimously supportive of establishing the Inspector‑General as an independent agency, with functions to monitor, investigate and report on the Commonwealth's administration of the aged care system.
2.58The committee notes that several submitters to the inquiry sought clarity about the role of the Inspector‑General in promoting the human rights-based approach recommended by the Royal Commission. The committee is reassured that the government accepted Recommendations 1 to 3 of the Royal Commission, indicating that the rights-based approach would be implemented in the new Aged Care Act.
2.59The committee acknowledges submitters' broad support for the functions, powers and independence of the Inspector‑General. The committee notes concerns about the potential for overlap between the functions of the Inspector‑General and other Commonwealth entities in the aged care sector, and believes that these concerns are adequately addressed by the provisions of the IGAC bill.
2.60The committee appreciates submitters' suggestions that the Inspector‑General should regularly consult with the aged care sector and older people, particularly regarding the development of annual work plans. The committee notes that the Inspector‑General must consult the Minister in preparing annual work plans, and may also consult any other person the Inspector‑General considers appropriate.
2.61Recommendations 12 and 98 of the Royal Commission called for the Inspector‑General to have the power to investigate individual complaints. The committee understands that the bills establish the Inspector‑General with a systemic oversight function, without an active role in individual complaint handling. The committee acknowledges the policy intent to safeguard the Inspector‑General's independence and impartiality, while avoiding duplicating the roles of other government agencies.
2.62The committee considers that the establishment of the Inspector‑General is an important part of implementing the recommendations of the RoyalCommission, and should proceed without delay. The committee, therefore, recommends that the bills be passed.
2.63The committee recommends that the bills be passed.
Senator Marielle Smith
Chair