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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INSPECTOR-GENERAL OF AGED CARE BILL 2023
INSPECTOR-GENERAL OF AGED CARE (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Aged Care and Sport, the Hon. Anika
Wells MP)
INSPECTOR-GENERAL OF AGED CARE BILL 2023
INSPECTOR-GENERAL OF AGED CARE (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2023
OUTLINE
The two Bills support the establishment of the new Inspector-General of Aged Care
(Inspector-General), which will provide independent oversight of the aged care
system.
The establishment of the Inspector-General is a key component of the Australian
Government's response to the Final Report of the Royal Commission into Aged Care
Quality and Safety (Royal Commission), published on 1 March 2021. The Royal
Commission identified a range of systemic issues within the aged care system,
including inadequate funding, a lack of transparency, poor access to health care, an
absence in system leadership and governance, and a need to restore trust in the
Government's stewardship in the aged care system.
The Royal Commission found that the aged care system currently lacks an entity
responsible for providing independent oversight of, or for reviewing, systemic issues
and driving improvement. As a result, the Royal Commission recommended that the
Government 'should establish an independent Office of the Inspector-General to
investigate, monitor and report on the administration and governance of the aged care
system' (Recommendation 12).
Inspector-General of Aged Care Bill 2023
The Inspector-General of Aged Care Bill 2023 (IGAC Bill) will establish the new
Inspector-General.
Consistent with the Royal Commission's findings, the scope of the Inspector-
General's systemic oversight role will span the aged care system administered,
regulated, funded and delivered by the Commonwealth. This will include examining
and reporting on the performance of Commonwealth and other entities with a role in
the aged care system. More broadly, the Inspector-General will shine a light on the
effectiveness of the system as a whole, identify areas of concern or parts of the system
that are functioning well, and recommend improvements where appropriate.
The Inspector-General will improve transparency and accountability across the aged
care system and drive positive change for older Australians, through monitoring,
reviewing and publicly reporting on systemic issues in aged care. Ultimately, these
activities will drive continuous improvement in aged care services, and build
confidence among the broader Australian community in an aged care system that
meets the diverse needs of older Australians.
The IGAC Bill establishes the Office of the Inspector-General, comprising the
Inspector-General as a statutory office holder supported by a statutory body, as a
listed entity for the purposes of the Public Governance, Performance and
Accountability Act 2013 (PGPA Act). The Inspector-General will be appointed by the
Governor-General for a single term of up to five years, with a maximum of two terms
of up to ten years in total.
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The IGAC Bill provides for the Inspector-General's functions, which are to monitor,
investigate and report to the Minister and Parliament on the Commonwealth's
administration and regulation of the aged care system, including by identifying and
investigating systemic issues through the conduct of independent reviews, and making
recommendations to the Commonwealth for improvement. The Inspector-General will
report its findings and recommendations publicly, to the Minister and to Parliament.
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. To
assert its independence, the IGAC Bill confers the Inspector-General with complete
discretion in carrying out its functions and powers, and appropriately limits directions,
including from the Minister.
The IGAC Bill provides the Inspector-General with coercive information gathering
powers to support its functions, including powers to compel a person to produce
information or documents or to answer questions, and for the Inspector-General or its
staff to access premises. It also provides protections for the Inspector-General and
others who provide information or assistance to them.
In recognition of the range of sensitive information the Inspector-General will be
entrusted to hold, the IGAC Bill establishes secrecy provisions which provide that it is
an offence for the Inspector-General and certain other persons to use and disclose
'protected information', unless that information is used or disclosed for an authorised
purpose.
Finally, the IGAC Bill establishes a criminal offence and civil penalty regime to
provide a framework of deterrence for certain conduct or omissions which might
prevent, hinder or are contrary to the Inspector-General's exercise of functions or
powers.
Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill
2023
The Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill
2023 (Consequential and Transitional Provisions Bill) supports the IGAC Bill in
establishing the Inspector-General.
Schedule 1 to the Consequential and Transitional Provisions Bill amends various
Commonwealth Acts to facilitate the provision of information to the Inspector-
General that is subject to secrecy provisions. This is vital to supporting the
performance of the Inspector-General's functions and exercise of powers. Schedule 1
also amends the National Anti-Corruption Commission Act 2022 (National Anti-
Corruption Commission Act) to prescribe the Inspector-General as a 'Commonwealth
integrity agency'.
Schedule 2 provides for application, saving and transitional provisions to support the
transition from the non-statutory interim Inspector-General of Aged Care to the
Inspector-General.
2
Financial Impact Statement
On 25 October 2022, the Australian Government announced a commitment of
$38.7 million over the next four years from 2022-23 to support the establishment of
the Inspector-General.
3
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
INSPECTOR-GENERAL OF AGED CARE BILL 2023
INSPECTOR-GENERAL OF AGED CARE (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2023
These Bills are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bills
Inspector-General of Aged Care Bill 2023
The purpose of the Inspector-General of Aged Care Bill 2023 (IGAC Bill) is to
establish the Inspector-General of Aged Care (Inspector-General) and the Office of
the Inspector-General of Aged Care (Office). The Office would support the Inspector-
General in the performance of their functions.
The Inspector-General's function will be to monitor, investigate and report on the
Commonwealth's administration and regulation of the aged care system, including by
identifying and investigating systemic issues through the conduct of independent
reviews, and making recommendations to the Commonwealth for improvement. The
Inspector-General will report its findings and recommendations publicly, to the
Minister and to the Parliament.
The Inspector-General will also report on the Commonwealth's implementation of the
recommendations made within the Final Report of the Royal Commission into Aged
Care Quality and Safety.
Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill
2023
The Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill
2023 (Consequential and Transitional Provisions Bill) deals with consequential
amendments to two Commonwealth aged care laws and the National Anti-Corruption
Commission Act 2022, and transitional matters arising from the transition from the
interim Inspector-General to the Inspector-General established under the IGAC Bill.
Human rights implications
The IGAC Bill engages the following human rights:
• the right to an adequate standard of living in article 11(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and article 28 of
the Convention on the Rights of Persons with Disabilities (CRPD);
• the right to health in article 12(1) of the ICESCR and articles 23(1)(c) and 25 of
the CRPD;
• the right to a fair trial in article 14(1) of the International Covenant on Civil and
Political Rights (ICCPR);
• the right to the presumption of innocence in article 14(2) of the ICCPR;
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• the right to be free from self-incrimination in article 14(3)(g) of the ICCPR;
• the right to privacy in article 17 of the ICCPR and article 22 of the CRPD; and
• the right to freedom of expression under article 19(2) of the ICCPR.
The Consequential and Transitional Provisions Bill also engages the right to privacy in
article 17 of the ICCPR and article 22 of the CRPD.
The right to an adequate standard of living - article 11(1) of the ICESCR
Article 11(1) of the ICESCR (and article 28 of the CRPD in relation to people with
disability) requires that everyone be afforded an adequate standard of living for
themselves and their families, including the continuous improvement of living
conditions.
The IGAC Bill promotes the right to an adequate standard of living by driving greater
accountability and transparency across the aged care system, which will facilitate
positive change for older Australians. Independent review of the administration and
regulation of the aged care system, coupled with the power to make recommendations
for improvement, will result in an improved standard of living for older Australians
receiving aged care services.
The right to health - article 12(1) of the ICESCR
Article 12(1) of the ICESCR provides that everyone has the right to the enjoyment of
the highest attainable standard of physical and mental health. The UN Committee on
Economic, Social and Cultural Rights has stated it includes the right to control one's
health and body and the right to be free from interference, such as the right to be free
from torture, non-consensual medical treatment and experimentation.
The IGAC Bill promotes the right to health by holding the Commonwealth to the
highest standard in its governance, regulation and administration of aged care. The
Bill would allow the Inspector-General to investigate where those standards may not
be being met and to make recommendations for improvement as appropriate,
including in areas such as restrictive practices.
Criminal process rights - civil penalties are not criminal for purposes of ICCPR
In determining whether a civil penalty provision is to be regarded as criminal for the
purposes of international human rights law, the following factors are to be considered:
1. Classification of a penalty under domestic law.
2. Nature and purpose of the penalty.
3. Severity of the penalty.
For the reasons outlined, civil penalty provisions in the IGAC Bill are not regarded as
criminal and therefore do not engage rights in article 14 of the ICCPR.
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The IGAC Bill contains civil penalties at:
• subclause 44(8), which relates to non-compliance with a notice given under
subclause 44(2);
• subclauses 46(1) and 47(1), which relate to a person knowingly providing
false or misleading information or documents in response to a notice given
under subclause 44(2);
• subclause 50(9), which relates to an occupier's failing to provide an authorised
official with all reasonable facilities and assistance when the official is
exercising the access to premises power;
• subclause 55(4), which relates to a person disclosing another person's identity
where that other person has been granted confidentiality in regard to their
identity by the Inspector-General; and
• subclauses 56(1) and 56(3), which relate to a person engaging, or threatening
to engage in, detrimental conduct against another person because they believe
that other person assisted or intended to assist the Inspector-General.
Classification of civil penalties under Australian law
All civil penalty provisions in the IGAC bill would be classified as civil for the
purposes of Australian law, as they would operate under Part 4 of the Regulatory
Powers Act (Standard Provisions) Act 2014.
Under international human rights law, this gives weight to the civil penalty provisions
not being regarded as criminal.
Nature of the civil penalties
The civil penalty provisions:
• intend to deter a person from non-compliance with the Inspector-General's
information-gathering powers or taking any adverse actions against a person
assisting the Inspector-General; and
• are enforced by the Inspector-General and require a finding of culpability by a
court prior to being imposed.
Under international human rights law, these factors give weight to the civil penalty
provisions being regarded as criminal, however, this is balanced by their application
being restricted to persons within the scope of the Inspector-General's regulatory and
disciplinary context, rather than the public at large.
The civil penalties in subclauses 44(8), 46(1), 47(1) and 50(9) operate within the
Inspector-General's regulatory and disciplinary context. They apply only to a person
or occupier within the scope of the Inspector-General's functions in paragraphs
10(1)(a)-(d) who has failed to comply with the Inspector-General's information
gathering powers. These functions are constrained to the Commonwealth's
administration of aged care and its implementation of the Aged Care Royal
Commission recommendations.
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The civil penalties in subclauses 55(4), 56(1) and 56(3) relate to a person's actions in
the same regulatory or disciplinary context. These penalties intend to deter persons
from interfering with or harming persons assisting the Inspector-General. A member
of the public cannot inadvertently become liable under the Bill, as:
• Paragraph 55(1)(c) would require that a person obtained the information
directly or indirectly because of the qualifying disclosure to become liable.
• Paragraphs 56(1)(c) and 56(3)(c) would require a person to know or believe
that another person has assisted, may have assisted, or will assist the
Inspector-General to become liable.
The limited range of persons captured by the civil penalty provisions confines their
operation to the Inspector-General's regulatory and disciplinary context. Under
international human rights law, this gives weight to the civil penalty provisions not
being regarded as criminal.
Severity of the civil penalties
The severity of the civil penalties must be considered against the context of the aged
care sector broadly, as well as the operation of the Commonwealth's integrity bodies
across a variety of other sectors.
For subclauses 44(8), 46(1), 47(1), 50(9), and 55(4) a maximum civil penalty of 100
penalty units would apply to contraventions by individuals. This quantum would be an
appropriate deterrent against non-compliance with information gathering powers, and
is broadly consistent with penalties imposed by the laws of other integrity bodies such
as the Inspector-General of Water Compliance.
For subclauses 56(1) and 56(3), a maximum civil penalty of 500 penalty units would
apply to individuals. This is consistent with the victimisation provisions in the Aged
Care Act 1997 (Aged Care Act). The victimisation penalty unit amounts are generally
greater in Australian law than for other civil penalties, to reflect the significant
consequences of such conduct.
While the civil penalty amount for subclauses 44(8), 50(9) and 55(4) is higher than
the equivalent criminal penalty, this is commensurate with the civil penalty
provisions' intended purpose of deterrence. This complements the criminal penalty, of
30 penalty units and six months imprisonment, and its additional purpose of imposing
punishment on offenders.
The quantum of the penalty unit amounts is not sufficiently severe to be regarded as
criminal as it is appropriate for and consistent with the aged care sector being
regulated. This is further supported by no term of imprisonment applying to a
contravention.
7
Overall, the classification, regulatory or disciplinary purpose, and lack of severity of
the civil penalty provisions cumulatively support their characterisation as non-
criminal for the purposes of international human rights law.
The right to a fair trial - article 14(1) of the ICCPR
Article 14(1) of the ICCPR protects the right to a fair and public criminal trial, and to
a public hearing in civil proceedings. It provides that all persons shall be equal before
the courts and tribunals, and, in the determination of criminal charges, or any suit at
law, the right to a fair and public hearing before a competent, independent and
impartial court or tribunal established by law.
Clause 52 of IGAC Bill would limit the right to a fair trial under article 14(1) of the
ICCPR by abrogating legal professional privilege, which could affect the quality of
advice and representation the client receives at trial.
Clause 52 states that a person is not excused from giving an answer or information, or
producing a document or thing, under a notice to produce issued under subclause
44(2) on the grounds of legal professional privilege. It only abrogates the privilege in
regard to a communication that is legal advice given to a Minister or a
Commonwealth entity, or a communication between an official of a Commonwealth
entity and another person or body.
Rational connection to a legitimate objective
The abrogation of legal professional privilege in the specified circumstances would
serve the legitimate objective of facilitating the effective oversight of the
Commonwealth's administration and regulation of aged care.
Abrogating the privilege would allow the Inspector-General to obtain information
concerning the Commonwealth's exercise of powers or performance of functions
under an aged care law. For example, legal advice as to the application of the aged
care regulator powers is relevant as to whether it is performing its functions
effectively.
Reasonable, necessary and proportionate
Clause 52 is a reasonable, necessary and proportionate means of achieving the
objective above.
Without the abrogation, the performance of the Inspector-General's oversight
functions would be significantly impaired as pivotal information could be withheld
from the Inspector-General.
The abrogation is proportionate and reasonable because it is appropriately
circumscribed as:
• it is limited to communications that are directly connected to the
Commonwealth and the Inspector-General's prescribed functions;
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• it would not affect a person claiming legal professional privilege against other
parties due to subclause 52(3); and
• it is subject to a requirement that oral evidence that abrogates the privilege
must be given in private per clause 45.
The right to a presumption of innocence - article 14(2) of the ICCPR
Article 14(2) of the ICCPR provides that anyone charged with a criminal offence shall
have the right to be presumed innocent until proven guilty according to law. It
imposes on the prosecution the burden of proving a criminal charge and guarantees
that no guilt can be presumed until the charge has been proved beyond reasonable
doubt.
The IGAC Bill limits the right to be presumed innocent because it provides that a
defendant bears an evidential burden in relation to two offences, subclauses 23(1) and
63(1).
Subclause 23(1) would establish an offence for a person who received whole or part
of a draft review report and discloses any information from the report. Subclause
23(2) would provide an exception to the offence where the person disclosed
information:
• for the purposes of officially responding to the report as per subclauses 21(3)
and 22(1) or obtaining legal advice on responding;
• to the Commonwealth Ombudsman or an official of the Ombudsman; or
• to any person with the consent of the Inspector-General.
Subclause 63(1) would establish an offence for an 'entrusted person' to obtain
'protected information' in that capacity and use or disclose the protected information.
Subclause 63(2) would provide an exception for the offence where the use or
disclosure was authorised by clause 64.
Clause 5 defines an entrusted person as the Inspector-General, a member of staff of
the Office, a person assisting the Inspector-General or a consultant. It also defines
protected information as personal information, aged care provider information, or
information that would prejudice the effective exercise of powers or performance of
functions under an aged care law.
Limitations on this right must be reasonable, necessary and proportionate to achieve a
legitimate objective.
Rational connection to a legitimate objective
The reversed burden in subclause 23(2) achieves the legitimate objective of:
• preventing disclosure of information that could harm a person's reputation
before they have been given an opportunity to respond to criticism; and
• preventing disclosure of incorrect information that could harm public order by
eroding trust in the credibility of the Inspector-General.
The reversed burden in subclause 63(2) achieves the legitimate objective of:
9
• preventing disclosure of personal information that could harm the privacy of
individuals;
• preventing disclosure of aged care provider information that could harm the
safety of individuals by undermining trust in government regulation; and
• preventing disclosure of government information that could harm the safety of
individuals by disclosing information that could be used to subvert or avoid
government regulation.
Both subclauses achieve this legitimate objective by putting persons subject to non-
disclosure obligations on notice to ensure that they only disclose protected
information if they have appropriate authorisation. This would reduce the likelihood
of unlawful disclosures, and therefore the likelihood of harm to the privacy and safety
of individuals, and the effectiveness of government regulation.
Reasonable, necessary and proportionate
It is reasonable and necessary for the evidential burden of proof to be placed on the
defendant where the facts in relation to the defence are peculiarly within the
knowledge of the defendant, and where it would be significantly more difficult and
costly for the prosecution to prove (see the Attorney General's Department's Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers).
Regarding clauses 23 and 63, it is reasonable and necessary for a defendant to bear the
evidential burden of adducing or pointing to evidence that suggests a reasonable
possibility that their disclosure was authorised by subclause 23(2) or subclause 63(2)
because:
• the purpose for which the person has made the disclosure will be solely and
entirely within the person's knowledge, and it would not be onerous for the
person to adduce or point to evidence that suggests a reasonable possibility of
that purpose;
• requiring the prosecution to prove matters going to the relationship between
the defendant and a lawyer or the Ombudsman would be onerous because the
legal and ethical protections would make it difficult to obtain information as to
their nature; and
• requiring the prosecution to disprove the existence of every circumstance or
reason for which a disclosure was made would create a significant risk to
successful prosecution and impact the deterrent effect of the offence.
Reversed evidential burden provisions are proportionate because, consistent with
section 13.3 of the Criminal Code, this burden requires the defendant to adduce or
point to evidence that suggests a reasonable possibility that a particular matter exists
or does not exist. It does not require the defendant to prove those matters beyond
reasonable doubt. Further, if the defendant discharges an evidential burden, the
prosecution will also be required to disprove those matters beyond reasonable doubt.
Clause 63 is also proportionate because it only applies to entrusted persons such as the
Inspector-General, staff of the Office, contractors and consultants who are in an
excellent position to understand the harms and risks of unauthorised disclosure.
10
The right to be free from self-incrimination - article 14(3)(g) of the ICCPR
Article 14(3)(g) of the ICCPR protects the right to be free from self-incrimination in
the determination of a criminal charge by providing that a person may not be
compelled to testify against him or herself or confess guilt. The common law also
recognises the privilege against self-incrimination which applies unless expressly or
impliedly overridden by statute.
Clause 51 of the IGAC Bill limits article 14(3)(g) of the ICCPR by expressly
abrogating the privilege against self-incrimination which requires persons to provide
information if the Inspector-General has reason to believe it is relevant to the
performance of their functions.
However, the person would receive immunity such that self-incriminatory disclosures
could not be used against the person directly in criminal proceedings (known as 'use'
immunity) or indirectly to gather other evidence against the person (known as
'derivative use' immunity). An exception to this is in relation to proceedings under or
arising out of sections 137.1 or 137.2 of the Criminal Code or clauses 46 and 47 of the
IGAC Bill (false and misleading information and documents).
Any limitations must be for a legitimate objective, and be reasonable, necessary and
proportionate to that objective.
Rational connection to a legitimate objective
The limitation of the right to be free from self-incrimination would serve the
legitimate objective of facilitating the effective oversight of the Commonwealth's
administration and regulation of aged care.
Limiting the right would allow the Inspector-General to obtain information from a
person who has engaged in conduct that might attract an offence or penalty relevant to
the performance of aged care functions. Without this, the person would be able to
claim the privilege against self-incrimination and not disclose the information.
Reasonable, necessary and proportionate
Clause 51 is a reasonable, necessary and proportionate means of achieving the
objective above because:
• there is no less rights-restrictive measure that could obtain information
covered by the privilege; and
• the limitation of the right would be balanced by use and derivative use
immunity for self-incriminating disclosures.
Abrogating the privilege against self-incrimination is the only method by which
information on incriminating conduct could be compulsorily obtained from the person
involved. If the Inspector-General is unable to access information covered by the
privilege, systemic issues affecting the administration and regulation of aged care
arising from unlawful conduct could not be identified.
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Equally, the limitation is sufficiently circumscribed because it still affords immunity
against the use of information in subsequent criminal trials. This is because it is not
the primary purpose of the Inspector-General to prosecute the unlawful conduct of
individuals, but to uncover and report on systemic issues.
The prohibition on interference with privacy - article 17 of the ICCPR
Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person's
privacy, family, home and correspondence, and prohibits unlawful attacks on a
person's reputation.
The United Nations Human Rights Committee has interpreted the right to privacy as
comprising freedom from unwarranted and unreasonable intrusions into activities that
society recognises as falling within the sphere of individual autonomy.
As it applies to the Inspector-General of Aged Care Bill
The IGAC Bill would both promote and limit this right.
Subclause 19(2) promotes the right to privacy by providing that, prior to making a
submission to the Inspector-General, people can request that the content of their
submission, or part thereof, be kept confidential. The IGAC Bill also proposes further
protections in relation to the identity of an individual who discloses information to the
Inspector-General (see clauses 54 and 55). In addition, any person who wishes to
make a voluntary disclosure may choose to give that information anonymously or via
a pseudonym.
Measures in the IGAC Bill that would limit this right include:
• the power to obtain information in clause 44;
• the power to access premises in clause 50;
• authorisation to disclose confidential information in clause 55; and
• authorisation to disclose protected information in clause 64.
Clause 44 provides that the Inspector-General may issue a notice either specifying
what information, documents or things are to be produced, or the time and place a
person is to appear and answer questions. The power may only be used when the
Inspector-General reasonably believes a person has information relevant to the
Inspector-General's functions in paragraphs 10(1)(a)-(d).
Clause 50 provides that an authorised official may enter and remain on a premises for
the purposes of performing the functions in paragraphs 10(1)(a)-(d). Subclause 50(4)
gives the authorised official full and free access at all reasonable times to any
documents or other property on the premises; the power to examine, make copies of
or take extracts from any document; and the power to remove documents from the
premises for the purposes of copying or extracting. Under subclause 50(6), the
occupier of the premises has an obligation to provide all reasonable facilities and
assistance necessary for the effective exercise of the access to premises power.
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The functions referred to in clauses 44 and 50 refer to monitoring, investigation and
reporting on matters related to the Commonwealth's administration of aged care and
the implementation of the Aged Care Royal Commission recommendations.
Clause 55 makes it an offence to disclose information that identifies or is likely to
identify a person whose identity has been granted protection by the Inspector-General
in clause 54. Subclause 55(2) sets out the circumstances in which this information can
be disclosed, including to:
• the Australian Federal Police;
• a legal practitioner for the purpose of obtaining relevant legal advice;
• any person, with the consent of the person whose identity is protected;
• any person, where that person or body is prescribed in the regulations; and
• any person, where the information was lawfully already in the public domain.
Clause 64 outlines the circumstances in which a use or disclosure of protected
information by an entrusted person is an authorised use or disclosure. This includes
use or disclosure:
• for the purpose of performing functions or duties or exercising powers
(subclause 64(1)) under the IGAC Bill;
• to a court or tribunal, or in accordance with an order of a court or tribunal, for
the purpose of proceedings (subclause 64(2));
• to an enforcement body, if that person reasonably believes that the use or
disclosure is reasonably necessary for, or directly related to, one or more
enforcement related activities being conducted by, or on behalf of, that
enforcement body (subclause 64(3));
• to a person, where required or authorised under another Australian law
(subclause 64(5));
• to the person to whom the information relates (subclause 64(6)), and to any
other use or disclosure to which that person consents (subclause 64(7));
• to the person who provided the information (subclause 64(8));
• where the information has already been lawfully made publicly available
(subclause 64(9));
• to the Commonwealth Ombudsman, the Australian Information Commission,
or a member of staff of either body for the purposes of allowing them to
exercise their powers, or perform their functions or duties (subclause 64(10));
• for the purpose of achieving one or more objects of the IGAC Bill if the
Inspector-General certifies in writing that it is necessary in the public interest
for the person to use or disclose the information for that purpose (subclause
64(11)); and
• where necessary to lessen or prevent a serious threat to the safety, health and
wellbeing of an aged care consumer (subclause 64(12)).
The right to privacy may be limited where the limitation is lawful and not arbitrary,
and where it is reasonable, necessary and proportionate to achieve a legitimate
objective.
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Rational connection to a legitimate objective
The information gathering powers in clauses 44 and 50 serve the legitimate objective
of facilitating the effective oversight of the Commonwealth in its administration of
aged care. It will allow the Inspector-General to detect issues in the Commonwealth's
administration by giving it access to records it would not otherwise be able to access.
While both clauses enable the Inspector-General to request or access the information
of entities other than the Commonwealth, they are constrained by specific and limited
functions in paragraphs 10(1)(a)-(d) which continually refer back to the
Commonwealth and its role.
The information disclosure authorisations in clauses 55 and 64 also serve the
legitimate objective of facilitating the effective oversight of the Commonwealth's
administration of aged care through public reporting to the Minister and the
Parliament. This is mainly facilitated by subclause 64(1), but the other disclosure
provisions serve this legitimate objective as well by facilitating communication to
persons assisting the Inspector-General, and referrals to other government bodies with
enforcement or regulatory responsibilities.
The other legitimate purpose of these authorisations is upholding other rights. For
example, subclause 64(10) would uphold the right to an effective remedy by
permitting a person to disclose information to integrity bodies such as the
Commonwealth Ombudsman.
Reasonable, necessary and proportionate
The information gathering powers in clause 44 and 50 would be a necessary,
reasonable and proportionate means of achieving the legitimate objective outlined
above because there are no less rights-restrictive alternatives, and the powers are
sufficiently circumscribed and contain safeguards. This ensures that the powers are
according to law and avoid arbitrariness.
Without information gathering powers, the Inspector-General would not be able to
guarantee access to the necessary information for its monitoring, investigation and
reporting functions. While the Consequential and Transitional Provisions Bill will
enable voluntary information disclosure by three Commonwealth bodies, the scope is
limited and disclosure remains ultimately at their discretion.
The powers are reasonable and proportionate because they are sufficiently
circumscribed. As described above, they can only be used for monitoring,
investigation and reporting on the Commonwealth's administration of aged care and
implementation of the Aged Care Royal Commission recommendations. This
excludes other functions in clause 10 such as the function that permits the Inspector-
General to do anything incidental to its functions.
Clause 50 is also sufficiently circumscribed as it has different thresholds depending
on the premises being accessed. For non-Commonwealth bodies, subparagraph
50(1)(b)(i) requires that the Inspector-General certify, in writing, that they are
14
satisfied that it is reasonably necessary for the authorised official to have access to
premises for the performance of those functions.
Lastly, the IGAC Bill contains several safeguards that ensure the powers are
reasonable and proportionate. Clause 44 is conditioned by clause 45, which requires a
person giving answers containing sensitive, secret or legally privileged information to
do so privately. Additionally, any information collected through the information
gathering powers would have strong safeguards from unlawful disclosure - including
the clause 63 offence.
The information disclosure authorisations in clauses 55 and 64 would also be
necessary, reasonable and proportionate means of achieving the legitimate objective
discussed above.
The authorisation in paragraph 55(2)(b) is necessary to protect a person's right to seek
legal advice. It is reasonable and proportionate because it is limited to seeking advice
on the subdivision.
The authorisations in paragraphs 55(2)(c) and 55(2)(e) are about appropriately
limiting the offence to protect a person's right to freedom of expression, and
recognising that certain disclosures do not limit privacy. These limitations on privacy
are reasonable, necessary and proportionate because a person should not be liable for
disclosing the other person's identity where they have consent, or the information is
already lawfully in the public domain. The authorisations in subclauses 64(6)-(9) are
similarly justified in that they occur with the consent of the person concerned, the
information is already public, or is known to the recipient because they provided it.
The authorisation in paragraph 55(2)(a) is necessary because the right should not
obstruct the disclosure of information to a police officer. The authorisations in
subclauses 64(2)-(4) are similarly necessary in that they authorise disclosure to
enforcement bodies and courts as appropriate.
The broadest authorisation is subclause 64(1), which permits use or disclosure of
personal information in performing functions or duties, or exercising powers under
the IGAC Bill. This authorisation is necessary and reasonable because it is
fundamental to the Inspector-General being able to perform and report on its
functions. It is proportionate because clause 26, which limits what information can be
included in a report, prevents the release of any identifying information about a
person unless they are a senior government official.
As it applies to the Consequential and Transitional Provisions Bill
Items 1 to 9 of Schedule 1 of the Consequential and Transitional Provisions Bill also
engage the right by amending two laws to allow relevant Commonwealth bodies,
entities, or persons (including persons appointed to Commonwealth bodies or entities)
to disclose information subject to secrecy provisions under those laws to the
Inspector-General. This includes personal information.
For example, item 1 of Schedule 1 of the Consequential and Transitional Provisions
Bill allows the Secretary of the Department of Health and Aged Care to disclose
protected information under the Aged Care Act to the Inspector-General to support
15
the performance of the Inspector-General's functions or exercise of the Inspector-
General's powers. Under section 86-1 of the Aged Care Act, protected information
includes personal information.
As above, the right to privacy may be limited where the limitation is lawful and not
arbitrary, and where it is reasonable, necessary and proportionate to achieve a
legitimate objective.
Rational connection to a legitimate objective
The consequential amendments achieve the legitimate objective of facilitating the
Inspector-General's monitoring, review and investigation functions, as they enable
other bodies to lawfully disclose relevant information to the Inspector-General to
assist in the performance of its functions or the exercise of its powers.
Limiting the right to privacy through the disclosure of personal information is
necessary to allow the Inspector-General to identify and review systemic issues,
particularly those which adversely affect aged care recipients.
Necessary, reasonable and proportionate
The consequential amendments are a necessary to facilitate the Inspector-General's
collection of information from other Commonwealth bodies because without them,
these bodies would be constrained in the information they could voluntarily disclose
to the Inspector-General where secrecy provisions would otherwise apply.
They are reasonable and proportionate because they are sufficiently circumscribed,
and would only enable the disclosure of information to assist the performance of the
Inspector-General's functions and powers. This would also ensure that the scope of
amendments would be according to law and not arbitrary.
Lastly, the IGAC Bill establishes protections to ensure that personal information
received by the Inspector-General is safeguarded against improper or inappropriate
disclosure under its own protected information framework.
The right to freedom of expression - article 19(2) of the ICCPR
Article 19(2) of the ICCPR provides that everyone has the right to freedom of
expression, including the freedom to impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art or through
any other media.
The IGAC Bill would both promote and limit this right. The objective of clauses 56
and 57 is to ensure the right to freedom of expression, which includes the right to
impart information, is not hindered due to threats or reprisals from others.
Clause 56 would promote the right to freedom of expression in article 19(2) by
providing protections from victimisation of anyone who has, or might, disclose
16
information or provide assistance to the Inspector-General in support of the
performance of their functions.
Under clause 57, where the Inspector-General seeks information or compels
information from a person, that person would be afforded immunity from civil,
criminal and administrative liability and protection from victimisation in relation to
the act of disclosure. In these circumstances, protection would also be provided from
the enforcement of contractual or other remedies against the disclosing person.
The IGAC Bill would limit this right by restricting a person's ability to:
• disclose a draft review report (clause 23);
• disclose another person's identity if the Inspector-General has agreed to keep
that other person's identity confidential (clauses 54 and 55); and
• disclose 'protected information' where the person obtained that information in
their capacity as an entrusted person (clause 63).
Article 19(3) of the ICCPR provides that this right may be subject to restrictions
provided by law and which are necessary for the respect of individuals' rights or
reputation, or for the protection of national security, public order or public health.
Rational connection to a legitimate objective
The limitation on imparting information in subclause 23(2) achieves the legitimate
objectives of:
• preventing disclosure of information that could harm a person's reputation
before they have been given an opportunity to respond to criticism; and
• preventing disclosure of incorrect information that could harm public order by
eroding trust in the credibility of the Inspector-General.
The limitation on imparting identifying information in clauses 54 and 55 achieves the
legitimate objective of protecting a person's right to freedom of expression and to
safety by discouraging disclosure of information that could subject that person to
reprisals.
The limitation on imparting information in subclause 63(2) achieves the legitimate
objectives of:
• preventing disclosure of personal information that could harm the right to
privacy of individuals;
• preventing disclosure of aged care provider information that could harm public
order by undermining trust in government regulation; and
• preventing disclosure of government information that could harm public order
and public health by enabling aged care providers to subvert or avoid
government regulation.
Each subclause is rationally connected to the legitimate objective by putting persons
subject to non-disclosure obligations on notice to ensure that they only disclose
protected information if they have appropriate authorisation. This would reduce the
likelihood of unlawful disclosures.
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Reasonable, necessary and proportionate
It is necessary for clauses 23, 55 and 63 to impose limits on a person's right to impart
information because there is no less rights-restrictive alternative that can achieve the
objectives.
Each of the clauses are reasonable and proportionate because they are targeted only at
the scope of persons and information needed to achieve the relevant objectives.
Clauses 23 and 55 apply to any person, but they only apply to very specific
information - draft review reports and a person's identity - which are necessary to
achieving the legitimate objectives.
Clause 63 applies to a broader range of information including personal, aged care
provider, and government information, but the obligation only applies to entrusted
persons who have special responsibilities to disclose information when authorised by
law. In contrast, other Australian laws impose blanket secrecy offences on using or
disclosing information that apply to any person and to any information obtained under
the relevant laws.
As discussed in 'The right to the presumption of innocence' section above, all the
clauses include exceptions that ensure that the conduct covered by the offence is even
more circumscribed. For example, every clause preserves the right to seek legal
representation.
Conclusion
The Bills are consistent with human rights as they promote the rights of older
Australians to an adequate standard of living and health, and work to ensure that the
Commonwealth upholds its human rights obligations through the review of systemic
issues in the aged care system. While the Bills limit certain human rights, these rights
are limited in pursuit of the permissible legitimate objectives, and in a way that is
reasonable, necessary and proportionate in the particular circumstances to achieving
that objective.
The Hon Anika Wells MP, Minister for Aged Care and Sport
18
INSPECTOR-GENERAL OF AGED CARE BILL 2023
NOTES ON CLAUSES
Part 1 - Preliminary
This part deals with a number of preliminary matters, including the commencement
and general purpose and application of the Bill, its objects and the definitions.
Clause 1 - Short title
This clause provides for the short title of the Act to be enacted by the Bill to be the
Inspector-General of Aged Care Act 2023.
Clause 2 - Commencement
This clause sets out when the Bill commences. The table in subclause 2(1) provides
that the whole Act would commence either on 1 July 2023 if the Act receives the
Royal Assent before 1 July 2023, or on a single day to be fixed by Proclamation if the
Act receives the Royal Assent after 1 July 2023. The note to subclause 2(1) clarifies
that the table only relates to the provisions of the Act as it is originally enacted, and
will not be amended to deal with any later amendments of the Act.
If the provisions in the Bill do not commence within six months beginning on the day
on which the Act receives the Royal Assent, they would commence on the day after
the end of that period. A six-month period is appropriate given the work necessary to
transition the Interim Inspector-General of Aged Care to the Inspector-General
established under statute by the Bill, following passage.
Clause 3 - Objects
This clause outlines the objects of the Bill. As section 15AA of the Acts Interpretation
Act 1901 provides that statutes should be interpreted in accordance with their objects,
all the other provisions of the Bill are to be read, as far as possible, as being designed
to carry out these objects.
Specifically, the objects are to drive greater accountability and transparency of the
Commonwealth's administration of the aged care system, and facilitate positive
change for older Australians through:
• establishing an independent Inspector-General to monitor, investigate and
report on the Commonwealth's administration of the aged care system,
including by conducting reviews of systemic issues and making
recommendations for improvement;
• overseeing the Commonwealth's administration of complaints management
processes; and
• establishing a public reporting framework.
The objects envisage a complaints management role different to that proposed by the
Royal Commission, which recommended that the Inspector-General receive
complaints about other government agencies with roles in the aged care system as
well as serve as an escalation point for complaints considered by the proposed
Complaints Commissioner role. Instead, the model this Bill puts into place maintains
the independence of the Inspector-General by keeping them at arm's length from the
bodies and activities which they oversee. In practice, this will see the
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Inspector-General maintain oversight of the complaints management processes across
the aged care system to ensure that they provide a fair and transparent means of
resolving concerns, rather than having an active role in considering individual
complaints.
Clause 3 specifically references complaints management to highlight its importance to
the effective functioning of the Commonwealth's administration of aged care. It is not
intended to be interpreted as distinct from the concept of aged care administration.
Clause 4 - Simplified outline of this Act
This clause provides a simplified outline of the Bill to assist the reader. This outline is
not intended to be comprehensive and readers should rely on the substantive
provisions.
Clause 5 - Definitions
This clause sets out definitions of terms that are relied on in other provisions
throughout the Bill.
The following definitions warrant detailed explanation as these provide substantive
meaning to the identified term, rather than serving to guide the reader to a definition
provided in a later provision or another enactment:
Aged care funding agreement - this definition includes:
• an agreement entered into under subsections 73-1(3), 81-1(1), 82-1(1) or 83-
1(1) of the Aged Care Act 1997 (Aged Care Act);
• an agreement under which money is payable by the Commonwealth, or
financial assistance is granted, where that agreement or grant is for the
purposes of a program specified in:
o an item of the table in Part 4 of Schedule 1AA to the Financial
Framework (Supplementary Powers) Regulations 1997 (FFSP
Regulations) to the extent that the program relates to aged care; or
o an item of the table in Part 4 of Schedule 1AB to the FFSP Regulations
to the extent that the program relates to aged care; or
• an agreement of a kind that is specified in the Inspector-General of Aged Care
Regulations.
This definition is used in the subparagraph 10(1)(a)(ii) and paragraph 10(1)(c)
functions of the Inspector-General, and the 'government official' and 'protected
information' definitions, to capture a broad set of aged care funding arrangements.
Aged care law - this definition sets out the aged care laws which are relevant to
defining the scope of the Inspector-General's functions, and is referenced in the
definitions of other terms, including 'government entity', 'government official', and
'protected information'.
Australian law - this definition refers to a law of the Commonwealth, or of a State or
Territory.
20
Entrusted person - this definition defines the class of individuals to whom the
secrecy of information provisions in Division 4 of Part 4 apply. An entrusted person
means:
• the Inspector-General;
• a member of the staff of the Office;
• persons assisting the Inspector-General under clause 41; and
• consultants engaged by the Inspector-General.
Government entity - this definition defines the class of entities, bodies, companies,
and persons (apart from individuals) to whom aspects of the Inspector-General's
framework of reviews apply, including the 'opportunity to respond' provisions in
subclause 22(1); 'final review report' provisions in subclause 24(3); and the 'tabling
and publication of final review report' provisions in subclause 25(1).
Government official - this definition defines the class of government officials to
whom aspects of the Inspector-General's framework of reviews apply, including the
'opportunity to respond' provisions in subclause 22(1); the 'final review report'
provisions in subclause 24(3); and the 'tabling and publication of final review report'
provisions in subclause 25(1).
Protected information - this definition defines protected information as personal
information within the meaning of the Privacy Act 1988; information that relates to
the affairs of an approved provider within the meaning of the Aged Care Quality and
Safety Commission Act 2018; a party to an aged care funding agreement; or
information which if disclosed would or could reasonably be expected to prejudice the
effective working of a Commonwealth entity in the exercise of its powers or
performance of its functions or duties under an aged care law.
Sensitive information - this definition defines sensitive information as information
the disclosure of which would be contrary to the public interest:
• because it would prejudice the security, defence or international relations of
the Commonwealth; or
• because it would involve disclosing:
o deliberations or decisions of the Cabinet, or of any committee of the
Cabinet, of the Commonwealth or of a State; or
o deliberations or advice of the Federal Executive Council or the Executive
Council of a State or the Northern Territory; or
o deliberations or decisions of the Australian Capital Territory Executive or
of a committee of that Executive; or
• because it would prejudice relations between the Commonwealth and a State
or Territory; or
• because it would involve disclosing any information that was communicated
in confidence by the Commonwealth to a State or Territory, or by a State or
Territory to the Commonwealth; or
• because it would reasonably be expected to prejudice the commercial interests
of any person or body; or
• for any other reason that could form the basis for a claim in a judicial
proceeding that the information should not be disclosed.
21
Sensitive information is information that the Inspector-General must redact from
published submissions and reports where its disclosure would not be in the public
interest. It operates at a broader level than the protected information framework in
Division 4 of Part 5 of the Bill. Where information is both sensitive information and
protected information, it is intended that the sensitive information process limit what
an entrusted person can lawfully disclose under the protected information framework.
Clause 6 - Act binds the Crown
This clause provides that the Bill will bind the Crown in each of its capacities. This
reflects that government entities and government officials would be subject to
obligations under the Bill.
Clause 7 - Application of this Act
This clause provides that the Bill applies to the external Territories, but will not have
application to the external Territory of Ashmore Island and Cartier Island.
Part 2 - Establishment and functions and powers of the Inspector-General of
Aged Care
Division 1 - Introduction
Clause 8 - Simplified outline of this Part
This clause provides a general overview to assist readers in understanding the
substantive provisions in Part 2.
Division 2 - Inspector General of Aged Care
Subdivision A - Inspector-General of Aged Care
Clause 9 - Inspector-General of Aged Care
This clause establishes the Inspector-General of Aged Care.
Clause 10 - Functions of the Inspector-General
This clause is the principal provision which sets out the Inspector-General's functions.
The functions define the scope of the Inspector-General's oversight, and include
monitoring, investigating and reporting to the Minister and Parliament on:
• the performance of functions and duties, and exercise of powers, under an
aged care law as defined in clause 5;
• the operation of an aged care law;
• the Commonwealth's administration of aged care law or aged care funding
agreement, including systems established for those purposes;
• the performance of obligations and exercise of rights by the Commonwealth
under an aged care funding agreement; and
• the implementation by the Commonwealth of the recommendations of the
Aged Care Royal Commission.
The Inspector-General's focus is on the Commonwealth's role in the aged care
system, and systemic issues within it. Subclause 10(2) reinforces this by restraining
22
the Inspector-General's functions in paragraphs 10(1)(a)-(b) from looking at a single
issue in regard to the exercise of a power or performance of a duty or function.
The Inspector-General's function in regard to the implementation of the Aged Care
Royal Commission's recommendations is detailed in clauses 28 and 29, which
provides a general power to report on implementation on an ad-hoc basis, and a
specific obligation to conduct reviews at five and ten years after the release of the
Final Report of the Royal Commission into Aged Care Quality and Safety.
Clause 11 - Independence of the Inspector-General
Subclause 11(1) provides that, subject to the Bill and to other Commonwealth laws,
the Inspector-General has complete discretion in the performance of the
Inspector-General's functions and the exercise of its powers. Additionally, the
Inspector-General is not subject to direction by any person in relation to the
performance or exercise of those functions or powers.
The note to subclause 11(1) clarifies that the Minister may direct the
Inspector-General to conduct a review into a particular matter under subclause 17(2).
Subclause 11(2) clarifies that, in particular, the Inspector-General is not subject to
directions to:
• include particular outcomes or priorities within a work plan for a financial
year that must be prepared under clause 15 of the Bill;
• how a review is to be conducted, including in relation to the terms of
reference, processes, timing and prioritisation of a review; or
• the content of a report.
This ensures the Inspector-General retains substantial discretion to determine how it
will carry out its role.
Subdivision B - Office of the Inspector-General of Aged Care
Clause 12 - Establishment of the Office of the Inspector-General of Aged Care
Subclause 12(1) establishes the Office of the Inspector-General of Aged Care.
Subclause 12(2) sets out the application of the finance law, within the meaning of the
PGPA Act, to the Inspector-General.
The Inspector-General, the staff of the Inspector-General, persons assisting the
Inspector-General under clause 41, and consultants engaged under clause 42, will be a
listed entity under the PGPA Act known as the 'Office of the Inspector-General of
Aged Care'. The Inspector-General, staff, persons assisting the Inspector-General, and
consultants are officials of the listed entity.
The Inspector-General will be a non-corporate Commonwealth entity to which the
provisions of the PGPA Act will apply, with the Inspector-General being the
accountable authority of the listed entity.
The purpose of the listed entity includes the functions of the Inspector-General
referred to in clause 10.
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Clause 13 - Constitution of the Office
This clause establishes that the Inspector-General and the staff, as provided for in
Clause 40, constitute the Office of Inspector-General of Aged Care.
Clause 14 - Functions of the Office
This clause establishes that the Office of Inspector-General of Aged Care's function is
to assist the Inspector-General in the performance of the Inspector-General's
functions referred to in clause 10.
Division 3 - Reviews by the Inspector-General
This Division sets out the Inspector-General's framework of work plans, reviews,
monitoring and reporting, which buttresses the Inspector-General's statutory oversight
role.
Subdivision A - Annual work plans
Clause 15 - Inspector-General must prepare annual work plan
This clause provides that the Inspector-General must prepare a written annual work
plan for each financial year. It is intended that the work plan will maximise
transparency around the Inspector-General's priorities and areas of focus, and will
allow relevant government entities to plan appropriately to support the conduct of
reviews.
Subclause 15(2) provides that the work plan prepared by the Inspector-General must
set out the key outcomes and areas of priority that the Inspector-General will focus on
for a financial year, as well as the details and timing of each review.
Detail could include the particular Commonwealth entities to be reviewed, or the
subjects of particular systemic aged care issues to be prioritised such as aged care
recipients' access to health care, or the adequacy of aged care data systems. Other
matters that may be set out in the work plan may include, for example, the terms of
reference or scope of a review.
Subclause 15(3) requires the Inspector-General to consult with the Minister in
preparing a work plan for a financial year. The Inspector-General may also consult
any other person the Inspector-General considers appropriate.
Subclause 15(4) requires the Inspector-General to publish the work plan on the
Inspector-General's website as soon as practicable after it has been finalised.
Subclause 15(5) provides that a work plan prepared by the Inspector-General is not a
legislative instrument. This provision is declaratory of the law and is included to assist
the reader. A work plan is not legislative in nature.
Clause 16 - Variation of annual work plan
This clause provides that the Inspector-General may vary a work plan for a financial
year if the Inspector-General is satisfied that it is reasonable or appropriate to do so.
For example, the Inspector-General could decide to take this course of action if the
Inspector-General received information or data pointing to a potential systemic issue
that warranted an immediate review, or to reflect a direction from the Minister.
24
Subclause 16(2) provides that the Inspector-General must publish a varied work plan
on its website as soon as practicable after it has been varied, whilst subclause 16(3)
clarifies that a varied work plan is not a legislative instrument.
Subdivision B - Process for conducting reviews
Clause 17 - Reviews by the Inspector-General
Subclause 17(1) provides that the Inspector-General may, on their own initiative,
conduct reviews for the purpose of performing relevant functions under paragraphs
10(1)(a)-(d). The power to initiate an own motion review is both critical to the
Inspector-General's ability to exercise independent oversight of the aged care system,
and consistent with the Royal Commission's recommendations.
Subclauses 17(2)-(6) deal with directed reviews issued by the Minister. Subclause
17(2) provides that the Minister may issue written directions to the Inspector-General
to conduct a review (directed review) in relation to a particular matter in relation to
the Inspector-General's review functions. The Inspector-General would be required to
undertake a directed review as per subclause 17(4).
Subclause 17(3) lists the matters that the Minister must have regard to in considering
whether to issue a direction to the Inspector-General to conduct a directed review.
These include the objects and functions of the Act, which in practice would require
the Minister to consider whether a directed review would be within the scope of the
Inspector-General's powers; the Inspector-General's workplan for the financial year in
which the directed review is to be conducted; and whether the Inspector-General's
resources are sufficient to conduct the directed review.
Subclause 17(5) provides that the Inspector-General must consult with the Minister in
determining the terms of reference for a directed review, and the priority to be given
to a directed review. Whilst this subclause imposes a general requirement for the
Inspector-General to consult with the Minister on these matters, the effect of clause 11
is that the Inspector-General would not be subject to direction in this regard. The note
to clause 17(5) clarifies that the Inspector-General is not subject to directions on terms
of reference or the priority to be given to a directed review because of the operation of
clause 11.
Subclause 17(6) clarifies that a direction given to the Inspector-General by the
Minister to conduct a directed review is not a legislative instrument. This provision is
declaratory of the law and is included to assist the reader.
Subclauses 17(7) provides that the Inspector-General may conduct a review into a
particular matter related to its functions if requested in writing by a Minister
administering an aged care law, or the Secretary of the Department. Under subclause
17(8), the Inspector-General is not required to comply with a request. In practice,
however, the Inspector-General will exercise discretion as to whether to conduct a
review, and would provide notice to the initiator of the request setting out the reasons
underpinning the decision.
25
Clause 18 - Notice of review
This clause provides for the commencement of a review. Specifically, a review to be
conducted under clause 17 starts when the Inspector-General gives notice of a review
under this clause.
Subclause 18(2) provides that a notice must:
• be in writing;
• specify the day in which the review starts, which must be the day on which the
notice is given;
• specify the terms of reference for the review; and
• be given to:
o the Minister;
o the head of a Commonwealth entity if the review relates to an entity
official's exercise of powers, or the performance of functions or duties;
o the Commissioner of the Aged Care Quality and Safety Commission if the
review relates to the exercise of powers, or the performance of functions or
duties under the Aged Care Quality and Safety Commission Act 2018; and
o the Secretary of the Department if the review relates to the exercise of
powers, or the performance of functions or duties under an aged care law
other than the Aged Care Quality and Safety Commission Act 2018.
Subclause 18(3) provides that the Inspector-General may give the notice to any other
person or body or publish it if they consider it appropriate to do so.
Clause 19 - Inspector-General may invite submissions
This clause sets out the legislative framework underpinning the submissions processes
the Inspector-General may adopt to inform the conduct of a review. Submissions will
serve a dual purpose. First, they will provide important information to the
Inspector-General on the subject matters of a review, and secondly, they will provide
an opportunity for government, the aged care sector, peak bodies and aged care
recipients and their families and carers to contribute to review processes.
Subclause 19(1) provides that the Inspector-General may invite members of the public
generally, or particular persons or bodies, to make submissions in relation to a review.
The Inspector-General will, pursuant to sub-clause 19(2), have broad discretion in
determining submissions processes in relation to inviting or making submissions.
Specifically, the Inspector-General may decide on processes for issuing invitations or
making submissions, including:
• how an invitation is to be made (for example, this may be communicated on
the Inspector-General's website, or through the media, or through direct
engagement with particular individuals or bodies through correspondence);
• whom can provide submissions;
• how submissions can be made.
The note to subclause 19(2) clarifies some of the methods the Inspector-General may
use to advertise for submissions from the public or from particular persons or bodies.
26
Subclauses 19(3) to (6) deal with requests for confidentiality made to the
Inspector-General from persons making submissions, which are vital to encouraging
people to readily convey information they may otherwise decide to withhold.
Accordingly, a person or body who makes a submission may request that the
Inspector-General:
• not make the submission, or a part of a submission, available under clause 20;
or
• not include the submission, or a part of the submission, in a draft or final
review report prepared by the Inspector-General under clause 26.
The Inspector-General has discretion to agree to a request for confidentiality if
satisfied that:
• the request is reasonable in the circumstances (for example, if an aged care
recipient or their family member wished to convey matters around the aged
care the recipient has received, that should be maintained as confidential);
• agreeing to the request would not unduly impede the conduct of the review;
and
• the person or body has made the submission in good faith.
Subclause 19(5) clarifies that, if a person or body requests that their submission or
part of their submission, not be published or included in a draft or final review report,
the Inspector-General may have regard to the submission in conducting a review. This
ensures that requests for confidentiality do not result in the Inspector-General having
to disregard information provided through a submission in the course of conducting a
review.
Subclause 19(6) provides that if the Inspector-General refuses a request for
confidentiality in relation to a submission from a person or body, the person or body
may withdraw their submission, or a part of their submission. Further, a person or
body may require the Inspector-General to return a written submission.
Clause 20 - Submissions may be made publicly available
This clause sets out the circumstances in which the Inspector-General may make
submissions publicly available. This is intended to increase transparency around
review processes, and the issues and matters under consideration in the course of
conducting a review.
Specifically, subclause 20(1) provides that, subject to subclauses (2), (3) and (4), the
Inspector-General may make a submission, or part of a submission, available to the
public generally, or to particular persons or bodies. This includes a written record of
an oral submission.
Subclause 20(2) provides that the Inspector-General must not make a submission, or
part of a submission, publicly available to the extent that it:
• names an individual, or otherwise makes an individual reasonably identifiable,
other than a minister, Senior Executive Service (SES) employee, statutory
appointee or the individual who made the submission; or
• contains information which the Inspector-General is satisfied is 'sensitive
information' as defined in clause 5.
27
Subclause 20(3) provides that the Inspector-General must not make a submission, or
part of a submission, made by a person or body publicly available if:
• the person or body requested that the Inspector-General not make the
submission, or part of the submission, publicly available, and the
Inspector-General agreed;
• the submission, or part of the submission, was withdrawn by, or returned to,
the person or body under subclause 19(6).
Subclause 20(4) prevents the Inspector-General from making a written record of a
person's oral submission publicly available unless that person has verified the content.
This reflects the need for greater checks and balances to ensure the accuracy of verbal
accounts.
Aspects of the submissions processes in clauses 19 and 20 enliven Australian Privacy
Principle (APP) 2, which provides that individuals must have the option of not
identifying themselves, or of using a pseudonym, when dealing with an APP entity
(such as the Inspector-General of Aged Care) in relation to a particular matter, unless
a particular exemption applies. The Bill complies with the requirements of APP 2, as
there are no circumstances, other than where a permitted exemption would apply, in
which an individual would be required to identify themselves rather than deal with the
Inspector-General anonymously or pseudonymously, and therefore result in APP 2 not
being maintained.
Subdivision C - Review reports
Subdivision C establishes the legislative framework underpinning the Inspector-
General's preparation, finalisation and publication of review reports, which are the
result of comprehensive investigations into issues regarding the Commonwealth's
funding, regulation, administration or delivery of aged care. Broadly, the Inspector-
General will be required to prepare and publish a review report for each review
conducted, and to ensure transparency, these must be tabled in Parliament and made
publicly available.
Clause 21 - Draft review report
This clause provides that the Inspector-General must prepare a draft report on a
review (draft review report) conducted under clause 17.
Subclause 21(2) provides that a draft review report must contain:
• the draft review report's preliminary findings;
• a summary of the evidence and other material on which those preliminary
findings are based; and
• any proposed recommendations resulting from the review.
The note to subclause 21(2) refers to the requirements of clauses 22 and 26, which
respectively require the Inspector-General to give certain persons an opportunity to
respond to a draft review report before including certain information, and to ensure
that certain material must not be included in a draft review report.
To embed the principles of natural justice, subclauses 21(3)-(5) require the Inspector-
General to provide persons or bodies subject to a review with an opportunity to
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comment. Specifically, subclause 21(3) provides that if the review relates to the
exercise of powers or performance of functions under an aged care law, the Inspector-
General must provide the draft review report:
• to the Commissioner of the Aged Care Quality and Safety Commission if the
aged care law is a provision of the Aged Care Quality and Safety Commission
Act 2018 (Aged Care Quality and Safety Commission Act); or
• otherwise, to the Secretary of the Department.
The Inspector-General must give the Aged Care Quality and Safety Commissioner, or
the Secretary, a reasonable opportunity to comment on the draft review report.
Generally, it is expected that the Inspector-General would determine what constitutes
a 'reasonable opportunity' to comment depending on considerations such as the
complexity of the particular issue, relevant review timeframes, or other considerations
that may vary on a case-by-case basis.
Subclause 21(4) confers the Inspector-General with discretion to also give the draft
review report, in full or in part, to any other person or body if the Inspector-General
considers it appropriate to give the person or body an opportunity to comment on the
report. This might include, for example, the Chair of the Pricing Authority if a draft
report related to the exercise of functions by the Independent Health and Aged Care
Pricing Authority under section 131A of the National Health Reform Act 2011.
Subclause 21(5) requires that all comments made on a draft review report must be
provided to the Inspector-General in writing.
Clause 22 - Opportunity to respond must be given before including certain
information in a draft review report
The primary intent of clause 22 is to mandate the requirements of natural justice in the
Inspector-General's review framework in circumstances involving the preparation of a
draft review report containing a proposed adverse finding or recommendation
pertaining to a person. As such, the Inspector-General is required to give the head of
an agency, an official or another relevant person a statement setting out the finding or
recommendation, and a reasonable opportunity to respond, before including a
preliminary finding that is expressly or impliedly critical of that entity, government
official or other person. The Inspector-General may specify the manner and form of
such a response. These might include, for example, written responses or submissions,
or may extend to the Inspector-General allowing the affected party the opportunity to
make verbal representations.
Clause 23 - Unauthorised disclosure of draft review reports etc.
This clause establishes an offence for the unauthorised disclosure of unauthorised
draft review reports. Specifically, subclause 23(1) provides that a person commits an
offence if they receive a copy of a draft review report, a document relating to a
preliminary finding or proposed recommendation in a draft review report, or an
extract from such reports or such documents, and discloses that information.
The penalty applicable to the offence is two years imprisonment, 120 penalty units, or
both. This level of penalty is intended to encourage persons to take care that they do
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not inappropriately disclose draft review reports, as such conduct may undermine the
review process and cause harm to individuals or entities.
Subclause 23(2) lists the circumstances in which the offence in subclause 23(1) does
not apply.
The note to subclause 23(2) clarifies that a defendant bears an evidential burden in
relation to a matter in subclause (2), as set out in subsection 13.3(3) of the Criminal
Code.
Clause 24 - Final review report
This clause sets out the requirements that the Inspector-General must meet in order to
finalise a review report (final review report) after completing a review.
Subclause 24(2) requires the Inspector-General to consider any comments or
responses provided on a draft review report when preparing the final review report.
Subclauses 24(3) and (4) set out requirements for issuing notices to relevant parties to
respond to recommendations in final review reports that they take action, and the
format and contents of responses. This is to provide certainty and transparency around
what actions will be taken by affected entities in response to the Inspector-General's
recommendations.
Specifically, if the Inspector-General makes a recommendation in a final review
report that a particular government entity, government official or any other affected
person take action, the Inspector-General may issue a written notice to the relevant
party to respond to the recommendation. The notice must provide the relevant party
with at least 28 days to respond after the notice is given. This ensures that relevant
parties have sufficient time to receive and consider the recommendation and formulate
an informed response, including whether they agree with the recommendation, and the
action they propose to take in response to recommendations.
Responses must be in writing, and set out:
• whether the entity, official or other person accepts the recommendation;
• any action to be taken to give effect to recommendations that have been
accepted, in whole or in part;
• the reasons for not accepting a recommendation, in whole or in part.
Subclause 24(5) sets out what a final review report must contain, namely:
• the Inspector-General's findings arising from the review;
• a summary of the evidence and other material that the Inspector-General used
to support its findings;
• recommendations from the review; and
• where the Inspector-General has issued a notice to respond to a
recommendation under subclause 24(3), a copy of any response to the
recommendation where the affected party has responded within the timeframe
set out in the notice, or alternatively, if the response has not been provided
within the relevant timeframe, a statement to that effect.
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The note to subclause 24(5) refers to the requirements in clause 26, which prevents
the inclusion of certain material in a final review report.
Clause 25 - Tabling and publication of a final review report
This clause provides that the Inspector-General must, as soon as practicable, provide a
completed final review report to the Minister, and to a government entity, government
official or other affected person if it includes a recommendation that they take certain
action. The Inspector-General may also provide the final review report to any other
person who was given a copy of the draft review report.
The Minister is required to table the final review report in each House of Parliament
within 15 sitting days after receiving it. After providing the final review report to the
Minister, the Inspector-General is required to publish the report on its website. This
will ensure that the Inspector-General's reports are publicly available, thereby
providing transparency around the Inspector-General's findings following a review.
Clause 26 - Certain information not to be included in review reports
This clause provides that certain information must not be included in a draft or final
review report. Specifically, subclause 26(1) provides that a draft of final review report
must not:
• include information that the Inspector-General is satisfied is sensitive
information, which is a defined term in clause 5;
• name or otherwise make reasonably identifiable an individual, other than a
Commonwealth, State or Territory Minister, an individual who holds an office
or appointment under a Commonwealth, State or Territory law, or an SES or
acting SES employee;
• include information (including information contained in a submission)
provided to the Inspector-General for the purposes of a review, if the person or
body requested, and the Inspector-General agreed, that the information would
not be included in the report; or
• include information from a submission which was withdrawn by, or returned
to, the person or body who made the submission before the report was
prepared.
Subdivision D - Reporting misconduct by Commonwealth officials
Clause 27 - Reporting misconduct by Commonwealth officials
This clause imposes a mandatory obligation upon the Inspector-General for reporting
evidence of misconduct engaged in by Commonwealth officials. Specifically, if the
Inspector-General forms the opinion before, during or after conducting a review that a
person who is or was an official of a Commonwealth entity has engaged in
misconduct, and there is sufficient evidence to justify doing so, the Inspector-General
must report that evidence.
If the person is or was the accountable authority of the relevant Commonwealth
entity, the Inspector-General must report the evidence to the responsible Minister for
the entity. Evidence must otherwise be reported to the accountable authority of the
relevant Commonwealth entity.
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Division 4 - Other functions and powers
Clause 28 - Reviews of implementation of Aged Care Royal Commission
recommendations
One of the key roles that the Royal Commission envisaged for the Inspector-General
involved monitoring and reporting on progress of the implementation of the Royal
Commission's recommendations. Clause 28 gives effect to that recommendation
(Recommendation 148). It will require the Inspector-General to complete a first
review by 1 March 2026, and a second review by 1 March 2031.
The Inspector-General is required to consider each recommendation made by the
Royal Commission, including measures or actions the Commonwealth has taken in
response to those recommendations, and how effective they were in implementing the
recommendation. Importantly, it is not intended that this imply that the
Commonwealth is obliged to implement each recommendation; rather that the
Inspector-General will consider the Commonwealth's response to each
recommendation, and how effective any measures and actions taken by the
Commonwealth have been in implementing the recommendations it has decided to
accept.
Subclauses 28(3) and (4) provide that the Inspector-General must submit a report on a
review of the Commonwealth's implementation of the Royal Commission's
recommendations to the Minister, who must then table the report in Parliament within
15 sitting days upon receiving it. The report must also be published on the
Inspector-General's website.
Clause 29 - Extra reports to Parliament
This clause allows the Inspector-General to prepare a report (other than review report,
or a report mandated under the Public Governance, Performance and Accountability
Act 2013) on any matter that falls within the scope of its functions.
Subclauses 29(2) and (3), which are largely procedural, require the Inspector-General
to submit a report to the Minister, who must table it in Parliament within 15 sitting
days upon receiving it. The Inspector-General also has discretion to provide the report
to any other person with a special interest in the matters to which the report relates.
The report must also be published on the Inspector-General's website.
Part 3 - Administrative provisions
Division 1 - Introduction
Clause 30 - Simplified outline of this Part
This clause provides a simplified outline of Part 3, which deals with a range of
administrative matters relating to the office of the Inspector-General. The outline is
included to assist readers and is not intended to be exhaustive.
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Division 2 - Appointment of the Inspector-General
Clause 31 - Appointment
Subclause 31(1) provides that the Inspector-General is to be appointed by the
Governor-General by written instrument. Subclause 31(2) provides that the
Inspector-General may be appointed on a full-time or part-time basis. The note to
subclause 31(1) clarifies that, subject to subclause 31(2), the Inspector-General may
be reappointed, and refers to section 33AA of the Acts Interpretation Act 1901.
The appointment of an independent office holder to the position of Inspector-General
and the subsequent performance of functions and powers in relation to the aged care
system (such as the own motion reviews, under clause 17), coupled with the
provisions in clause 11 which expressly provide for the Inspector-General's
independence, will ensure the Inspector-General's system oversight role is carried out
at arm's length of other Commonwealth entities participating in the aged care system.
Clause 32 - Term of office
This clause provides that the Inspector-General holds office for the period specified in
the instrument of appointment, up to a maximum of five years. The Inspector-General
must not hold office for a total of more than ten years.
This means that the instrument of appointment for a person to the role of
Inspector-General must not exceed the maximum five-year period, however, that
same person may be re-appointed as Inspector-General in a different instrument of
appointment, provided that person does not hold the office of Inspector-General for a
total of more than 10 years.
Clause 33 - Acting appointments
This clause will allow the Minister to appoint, by written instrument, a person to act
as the Inspector-General in particular situations.
Subclause 33(a) will enable a person to be appointed as acting Inspector-General,
during a vacancy in the office of the Inspector-General (whether or not an
appointment has previously been made to the office).
Additionally, subclause 33(b) will enable a person to be appointed to act as the
Inspector-General during periods when the Inspector-General is:
• absent from duty;
• absent from Australia; or
• is unable, for any reason, to perform the duties of the office.
A note following clause 33 refers the reader to sections 33AB and 33A of the Acts
Interpretation Act 1901 in relation to rules that apply to acting appointments.
Clause 34 - Remuneration and allowances
Subclause 34(1) provides that the remuneration for the Inspector-General is
determined by the Remuneration Tribunal. However, if no determination of
remuneration by the Tribunal is in operation, the Inspector-General is to be paid the
remuneration that is prescribed by the Governor-General in the regulations.
33
Subclause 34(2) provides that the Inspector-General is to be paid allowances
prescribed by the regulations.
It is standard practice for remuneration of certain public offices and appointments to
be determined by the Remuneration Tribunal. It is the Tribunal's role to determine,
report on or provide advice about remuneration, including allowances and
entitlements.
Subclause 34(3) provides that clause 34 will have effect subject to the Remuneration
Tribunal Act 1973.
Clause 35 - Leave of absence for Inspector-General
Subclause 35(1) provides that if the Inspector-General has been appointed on a
full-time basis, the Inspector-General has the recreation leave entitlements that are
determined by the Remuneration Tribunal.
Subclause 35(2) provides that if the Inspector-General is appointed on a full-time
basis, the Minister may also grant the Inspector-General leave of absence, other than
recreation leave, on the terms and conditions as to remuneration or otherwise that the
Minister determines. This provides flexibility for the Minister to consider requests
from the Inspector-General for other types of leave where it may not be desirable for
the Inspector-General to use their recreation leave entitlements.
Subclause 35(3) provides that if the Inspector-General is appointed on a part-time
basis, the Minister may grant leave of absence to the Inspector-General on the terms
and conditions that the Minister determines.
Clause 36 - Other paid work
This clause provides that the Inspector-General is not permitted to engage in paid
work outside their office unless they receive approval from the Minister. This would
minimise the likelihood of conflicts of interests arising, and ensure the Inspector-
General's independence and performance are not compromised by outside
commitments.
If the Inspector-General does engage in paid work outside the Inspector-General's
office without the Minister's approval, it may constitute grounds for termination of
their appointment under subclause 39(2)(c).
Clause 37 - Other terms and conditions
This clause provides that the Inspector-General holds office on terms and conditions
(if any) in relation to matters not covered by this Bill that are determined by the
Governor-General. Matters such as the location where the duties of the office are to be
performed may be specified in the terms and conditions.
Clause 38 - Resignation
This clause provides that the Inspector-General may resign by giving the
Governor-General a written resignation. The resignation takes effect on the day it is
received by the Governor-General or, if a later day is specified in the resignation, on
that later day.
34
Clause 39 - Termination of appointment
This clause sets out the circumstances in which the Governor-General may terminate
the Inspector-General's appointment, including on the grounds of misbehaviour or
where they are unable to perform the duties of their office due to physical or mental
incapacity. Whilst the term 'misbehaviour' is not expressly defined, for the purposes
of this provision, misbehaviour takes its ordinary meaning. Examples of such conduct
might include where the Inspector-General has breached any applicable codes of
conduct or standards, or has exercised functions or powers dishonestly, or used
information for improper purposes.
It is crucial that the Governor-General will be able to terminate the appointment of an
Inspector-General who is not, or cannot, properly perform his or her duties,
particularly given the importance of the Inspector-General's role within the aged care
system.
Subclause 39(2) lists other grounds on which the Governor-General may terminate the
Inspector-General's appointment. These grounds are similar to provisions regarding
the termination of appointment of other statutory office holders in similar legislation,
such as the Inspector-General of Live Animal Exports. They include, for example,
where the Inspector-General engages in paid work outside the duties of their office
without approval from the Minister (see clause 36), or where the Inspector-General
fails, without reasonable excuse, to comply with section 29 of the Public Governance,
Performance and Accountability Act 2013 (which deals with the duty to disclose
interests) or rules made for the purposes of that section.
Division 3 - Staff and consultants etc.
Clause 40 - Staff
Subclause 40(1) provides that the staff of the Inspector-General are to be persons
engaged under the Public Service Act 1999 and any other persons that the
Inspector-General considers necessary to employ to assist in performing the
Inspector-General's functions. This may include persons employed as contractors to
the Inspector-General's office as appropriate.
Subclause 40(2) provides that, for the purposes of the Public Service Act 1999, the
Inspector-General and the APS employees assisting the Inspector-General together
constitute a Statutory Agency, with the Inspector-General being the Head of that
Statutory Agency (see definition of 'Agency' in section 7 of the Public Service Act).
Clause 41 - Persons assisting the Inspector-General
Subclauses 41(1) and (2) provide that the Inspector-General may be assisted by
persons whose services may be made available to the Inspector-General in connection
with the performance of their functions, including:
• officers and employees of Commonwealth agencies (within the meaning of the
Public Service Act 1999) and authorities; and
• officers or employees of a State or Territory Government, or a State or
Territory Government authority, who are made available to assist the
Inspector-General under an arrangement between the Inspector-General and
the relevant State or Territory Government entity.
35
This provides for the possibility of persons with particular expertise, such as in aged
care prudential matters, who are employed by other entities to be made available to
the Inspector-General to assist in review processes. Similar provisions exist in
comparable Commonwealth legislation, and are vital to ensuring the
Inspector-General has access to additional resources and skills to carry out its
statutory oversight role which may otherwise be unavailable or difficult to source.
Subclause 41(3) allows the Commonwealth to reimburse a State or Territory for any
services provided to the Inspector-General by a person through an arrangement with a
State or Territory Government or authority.
Subclause 41(4) ensures that a person assisting the Inspector-General under this
clause is subject to the Inspector-General's directions.
Clause 42 - Consultants
This clause allows the Inspector-General to engage consultants to assist in the
performance of the Inspector-General's functions and to determine the terms and
conditions of their engagement in writing. Generally, consultants would be engaged
on the basis that they would assist the Inspector-General in carrying out their
functions by providing critical expertise. For example, this might include undertaking
analysis of aged care data to determine the adequacy of aged care data collections, as
proposed by Recommendation 12 of the Royal Commission's Final Report.
Part 4 - Information management
Division 1 - Introduction
Clause 43 - Simplified outline of this Part
This clause provides a general overview to assist readers in understanding the
substantive provisions in Part 4, which sets out the information gathering powers that
underpin the Inspector-General's functions, the protections that may be made
available to people who assist the Inspector-General, and rules around the use and
disclosure of protected information. The outline is not intended to be comprehensive
and it is intended that readers will rely on the substantive provisions of Part 4.
Clause 44 - Power of Inspector-General to obtain information
This clause establishes important parts of the Inspector-General's information
gathering powers, which will be integral to the Inspector-General's functions, and its
broader systemic oversight role in monitoring, reviewing and reporting on systemic
aged care issues.
Subclauses 44(1) and (2) give the Inspector-General the power to compel a person to
produce information, documents or things (such as an electronic device storing
relevant information) if the Inspector-General has reason to believe the person has
information or a document or thing that is relevant to the performance of their
functions under subclauses 10(1)(a) to (d). The Inspector-General may require the
production of this material by issuing a written notice requiring a person to:
• give any information, or produce documents or things to an official of the
Office of the Inspector-General; or
36
• appear and answer questions before an official of the Office of the
Inspector-General.
Subclause 44(3) provides that the notice must specify certain information. If the
notice relates to giving information or producing a document or thing, it must include
the period within which the person has to comply and the manner in which they are
required to comply. The time specified in the notice for production of information,
documents or things must be a minimum of 14 days after the notice is given, which is
designed to allow the person adequate time to identify and give that material to the
Inspector-General. A longer period of time may be provided if the circumstances
warrant it, and the clause is worded to balance the need to obtain information
expeditiously with the need to allow the subject of the notice adequate time to
respond.
If the notice requires the person to appear before an official of the Office to answer
questions, the notice must also set out the time and place at which a person is to
appear, and what the questions will relate to.
Subclause 44(3) further requires that a notice sets out the effect of subclauses 44(7)
and 44(8) and section 137.1 and 137.2 of the Criminal Code, which are intended to
bring the penalties for providing false or misleading information to the person's
attention.
Subclause 44(4) and (5) enable the Inspector-General to require any answers provided
through the exercise of the power to obtain information under subclause 44(2)(c) to be
verified by or given on oath or affirmation. This clause also provides that the
Inspector-General may require the answers to be verified orally or in writing. The
official of the Office is also given the power to administer the oath or affirmation on
which the information or answers are verified or given.
Subclauses 44(6) through (8) provide that a person who contravenes a requirement to
produce or to answer questions after being given a notice under subclause 44(2) is
liable to an offence or a civil penalty. The maximum penalty for an offence is 30
penalty units or imprisonment of six months, or both. The maximum civil penalty for
contravention is 100 penalty units. This combination of criminal offence and civil
penalty is intended to ensure that individuals have a strong incentive to comply with a
notice to produce issued under subclause 44(2), which will be critical in ensuring that
the Inspector-General has the means of obtaining vital information about aged care
systemic issues which are the subject of review.
The level of the criminal penalty is consistent with the Commonwealth Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
(the Commonwealth Guide), and with other Inspectors-General enabling legislation,
including the Inspector-General of Water Compliance established under the Water Act
2007. The civil penalty also reflects that the relevant criminal penalty cannot be
brought against an entity or body other than an individual.
Clause 45 - Information that must be given in private
This clause provides that a person must give specified information privately when
responding to the exercise of the power in subclause 44(2)(c).
37
This would restrict the Inspector-General from requiring that a person give certain
information in a public place.
Information that must be given privately includes:
• information protected by legal professional privilege as defined by subclause
52(1);
• information that would breach a secrecy provision as defined by subclause
53(2); or
• information that the Inspector-General is satisfied is sensitive information
(sensitive information being a defined term in clause 5).
Clause 46 - False or misleading information
Subclause 46(1) provides that a person is liable for a civil penalty, if they give
information to an official of the Office in response to a notice issued under subclause
44(2), which they know is false or misleading in a material particular, or omits any
matter or thing which would render the information misleading in a material
particular. The penalty is 100 penalty units.
The level of penalty is designed to encourage persons to take care that information
they provide is accurate and not misleading due to the omission of a material
particular. The provision of correct and accurate information, rather than information
provided in purported compliance with subclause 44(2) which the person knows is
false or misleading, is vital to the Inspector-General's review processes. Provision of
false or misleading information may result in the Inspector-General acting on
information in a particular way in a situation where, had the information not been
false or misleading, the Inspector-General would have acted differently. Conduct that
contravenes this requirement may compromise the review process provided for by
the Bill, and undermine public confidence in the Inspector-General's oversight of the
aged care system.
Subclause 46(2) provides that the civil penalty does not apply in circumstances where,
before information was given by a person to an official of the Office in purported
compliance with a notice issued under subclause 44(2), the official did not take
reasonable steps to inform the person that they may be liable for a civil penalty for
any contravention. The note following this clause refers readers to the onus on a
defendant to bear the evidential burden in relation to this subclause, consistent with
section 96 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory
Powers Act).
To clarify what is meant by the reference to 'reasonable steps' in subclause 46(2),
subclause 46(3) provides that it is sufficient for an official of the Inspector-General to
use the words "you may be liable to a civil penalty for giving false or misleading
information" in their communications with a person providing information in
response to a notice.
Clause 47 - False or misleading documents
This clause provides that a person is liable for a civil penalty, if they provide a
document to an official of the Office in response to a notice issued under subclause
44(2) which they know is false or misleading in a material particular, or omits any
38
matter or thing without which the information is misleading in a material particular.
The penalty is 100 penalty units.
The level of penalty will encourage persons to take care that any documents they
provide are accurate and are not misleading due to the omission of a material
particular. Accurate information and the provision of correct documents, rather than
documents provided in purported compliance with subclause 44(2) when the person
knows they are false or misleading, are vital to the Inspector-General's reviews
processes. Provision of false or misleading documents may result in the
Inspector-General acting on the documents in a particular way in a situation where,
had the document not been false or misleading, the Inspector-General may have acted
differently. Conduct that contravenes this requirement may compromise the review
process, and undermine public confidence in the Inspector-General's oversight of the
aged care system.
Subclause 47(2) provides that the civil penalty does not apply in circumstances where
the provision of a document is accompanied by a supporting written statement (signed
by the relevant person or a competent officer of a body corporate if applicable),
stating that:
• the document is to their knowledge, false or misleading in a material
particular; and
• setting out the material particular in the document which is false or
misleading.
This subclause provides a defence to the civil penalty that is often found in similar
penalty provisions, giving the person an opportunity to identify the document, or
material particular in the document in question as being false when it is provided in
compliance (or purported compliance) with a notice to produce.
The note to subclause 47(2) clarifies that a defendant bears an evidential burden in
relation to a matter in this subsection, in accordance with section 96 of the Regulatory
Powers Act.
Clause 48 - Inspector-General may retain documents or things
Subclauses 48(1) and 48(2) provide that where a person gives an official of the Office
of the Inspector-General a document or thing in response to a notice to produce issued
under subclause 44(2), the Inspector-General can make copies or take extracts from a
document, and may retain possession of the document or thing for a period as is
necessary for the purposes of the performance of the Inspector-General's relevant
functions.
Subclause 48(3) grants a person otherwise entitled to view or inspect a document or
thing with a right of access, or to take copies, whilst the document or thing is in the
Inspector-General's possession.
However, subclause 48(4) provides that the right of access does not apply if
possessing the document or thing would constitute an offence, inspecting or copying
would compromise or damage the document or thing, or where the Inspector-General
is satisfied that allowing access would prejudice the performance of any of the
Inspector-General's functions referred to in subclauses 10(1)(a) to (d).
39
Clause 49 - When documents and things must be returned
Subclauses 49(1) and 49(2) impose a requirement on the Inspector-General to take
reasonable steps to return documents or things obtained through the exercise of the
notice to produce powers in subclause 44(2) when satisfied they are not, or are no
longer, required to perform relevant functions.
Subclause 49(3) lists the circumstances in which the Inspector-General does not need
to take reasonable steps to return documents or things.
Clause 50 - Access to premises etc.
This clause provides that an authorised official (as defined in subclause 50(7)) may
enter and remain on premises for the purpose of performing any of the
Inspector-General's functions referred to in subclauses 10(1)(a) to (d).
Under subclause 50(1)(a) the access to premises power may be used to access
premises occupied by a person or body covered by subclause 50(2) at all reasonable
times. These persons or bodies include a Commonwealth entity, a body otherwise
established through Commonwealth law, a body established by the Governor-General,
or an incorporated company in which the Commonwealth has a controlling interest. It
is anticipated that the access to premises power would predominantly be exercised to
enter the premises of these entities or bodies, rather than those covered by subclause
50(1)(b).
Subclause 50(1)(b) provides that prior to accessing premises occupied by any other
person or body, the Inspector-General must first certify in writing that it is reasonably
necessary to do so for the performance of relevant functions. Following certification,
the Inspector-General may remain on the premises at all reasonable times provided
the certificate remains in force. The bodies which might be subject to the exercise of
this power may include, for example, a provider of aged care services funded by the
Commonwealth, or other entities who directly or indirectly receive Commonwealth
funding for the provision of aged care.
The Bill sets a higher bar for the exercise of the access to premises power in relation
to persons or bodies covered under subclause 50(1)(b), which is appropriate given that
its primary focus will be on Commonwealth entities or bodies.
Subclause 50(3) sets out the notice requirements that the authorised official must
satisfy before entering relevant premises, including to whom notice must be issued.
Notice does not need to be issued within a particular timeframe in advance of entry.
This is intended to give the authorised official flexibility to access premises at short
notice where required, whilst maintaining the importance of notification prior to
entering premises. This is important for minimising the possibility that occupiers may
seek to change their workplaces in response to being issued with a notice, which may
result in the authorised officer making different observations or drawing different
conclusions to what may have otherwise been the case.
Subclause 50(4) gives the authorised official, while on the premises, full and free
access at all reasonable times to any documents or other property on the premises; the
40
power to examine, make copies of or take extracts from any document; and the power
to remove documents from the premises for the purposes of copying or extracting.
Subclause 50(5) provides that an authorised official is not entitled to enter or remain
on a premises if the occupier of the premises requests that the official produce proof
of their authority to enter and remain on the premises, and:
• the authorised official fails to identify themselves as the Inspector-General (if
he or she is the Inspector-General), or if an authorised official cannot produce
a certificate signed by the Inspector-General stating that he or she is authorised
to exercise powers or perform functions under this clause; and
• if subclause 50(1)(b) applies, the authorised official fails to produce a
certificate issued by the Inspector-General under subclause 50(1)(b)(i).
Under subclause 50(6), the occupier of the premises has an obligation to provide all
reasonable facilities and assistance necessary for the effective exercise of the access to
premises power. For example, this would include access to the occupier's IT network
and records management system. These requirements will provide the
Inspector-General or an official with a substantial capacity to observe documents or
property onsite, and be reasonably assisted whilst on the premises, whilst
appropriately limiting the exercise of the power to carrying out relevant functions.
Subclause 50(7) defines 'authorised official' as the Inspector-General or an official of
the Office of the Inspector-General of Aged Care who has been authorised by the
Inspector-General to exercise the access to premises power.
Subclauses 50(8) and 50(9) establish an offence and a civil penalty for failure to
provide reasonable access to facilities and assistance to the Inspector-General or an
official necessary to ensure the effective exercise of the access to premises power.
The penalty for the offence is 30 penalty units or six months' imprisonment, or both,
and the civil penalty for contravention is 100 penalty units. This combination of an
offence and civil penalty will ensure that occupants of premises subject to the exercise
of the power will provide appropriate access and assistance, in the absence of which
the access to premises power would be severely constrained.
The note to subclause 50(8) clarifies that section 149.1 of the Criminal Code deals
with obstruction of Commonwealth public officials.
The access to premises power and associated criminal offence model is broadly
comparable to that set out in the Auditor-General Act 1997, albeit with a higher level
of penalty to align with other Inspectors-General legislation. The inclusion of both a
criminal and civil penalty recognises that the Inspector-General may be required to
exercise the access to premises power on non-government entities, in addition to
government entities.
The access to premises power conferred on the Inspector-General departs from
equivalent provisions set out in Part 3 of the Regulatory Powers Act, rather than
triggering those provisions. For example, Subdivision A, Division 2 of Part 3 of the
Regulatory Powers Act provides for a framework of standard regulatory powers for
authorised persons of Commonwealth agencies to enter premises, either by consent or
41
under a warrant. In circumstances where an authorised person enters premises by way
of an occupier's consent, he or she is empowered to undertake a search for evidential
material that they suspect on reasonable grounds may be on the premises. Where the
authorised person enters premises under an investigation warrant, he or she has the
power to search the premises and seize evidential material; inspect, test and copy
evidential material; take necessary equipment onto the premises; or operate electronic
equipment found of the premises.
The Inspector-General is not intended to have a regulatory or enforcement role. As
such, the search and seizure powers in the Regulatory Powers Act (as described
above) that are necessary to support such a role are not appropriate for the Inspector-
General. It is, for example, unnecessary for the Inspector-General to be required to
execute a warrant to allow an authorised official to enter another Commonwealth
entity's premises to undertake investigations. Legislative requirements for authorised
officials to carry identity cards, as provided for in section 76 of the Regulatory Powers
Act, are also unnecessary.
Rather, the approach taken in relation to the access to premises power in clause 50 is
framed by the Inspector-General's role in providing independent oversight of the
Commonwealth's administration, governance and regulation of aged care, including
the identification of systemic issues. Specifically, the primary intent of the power is to
allow authorised officials of the Inspector-General to enter relevant premises and
undertake direct observation, and to examine or take copies of documents or property,
for information gathering purposes in support of that role.
Clause 51 - Privilege against self-incrimination and penalty privilege
This clause relates to an individual providing information to the Inspector-General
which may tend to incriminate or expose that individual to an offence.
Subclause 51(1) provides that an individual is not excused from giving information, or
producing a document or thing, under subclause 44(2) on the basis that doing so might
tend to incriminate the individual in relation to an offence. The note to subclause
51(1) clarifies that a body corporate cannot claim the privilege against
self-incrimination.
Subclause 51(2) provides that information given, documents or things produced, or
answers given to the Inspector-General are not admissible in evidence against the
individual in any criminal proceedings, subject to the specified exception. That
exception being proceedings for an offence of giving false or misleading information,
evidence or documents under section 137.1 or 137.2 of the Criminal Code that relates
to clause 44.
Subclause 51(3) provides that an individual is not excused from giving information,
producing a document or thing or answering a question under subclause 44(2) on the
basis that at general law, a person would otherwise be able to claim the privilege
against self-exposure to a penalty (other than a penalty for an offence), The note to
subclause 51(3) clarifies that a body corporate cannot claim the privilege against
self-exposure to a penalty.
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Penalty privilege is the privilege against self-exposure to a civil or administrative
penalty. It is a common law and equitable privilege that applies in the context of
judicial proceedings and may be claimed by an individual to resist compulsion in the
course of such proceedings. Subclause 51(3) would have the effect of overriding that
privilege and ensures that compliance with a notice given under subclause 44(2) is
mandatory.
These privileges have been overridden to ensure the Inspector-General may access all
relevant information, documents and material to fully inform the Inspector-General's
inquiries as part of its review processes and aged care systemic oversight functions.
This is warranted given the importance of maintaining confidence in the
Inspector-General's systemic oversight of the aged care system, and ultimately
ensuring that aged care providers and services can deliver high quality outcomes to
aged care recipients.
Clause 52 - Legal professional privilege
This clause provides that a person must produce a copy of, or answer a question in
regard to, a communication:
• comprising legal advice given to a Minister or Commonwealth entity; or
• between a Commonwealth official and another person or body;
even if that person asserts legal professional privilege.
Subclause 52(2) provides that information given, documents or things produced, or
answers given to the Inspector-General, that would ordinarily be covered by legal
professional privilege are not admissible in evidence against the individual in any
civil or criminal proceedings. Nor is any information, document or thing obtained as a
direct or indirect consequence of anything given or produced.
Subclause 52(3) preserves a claim of legal professional privilege that may be made in
relation to information, documents, things or answers, despite the effect of this clause
in overriding legal professional privilege as a ground to refuse giving such
information, documents, things or answers under subclause 44(2).
Legal professional privilege has been abrogated in the qualified way outlined above,
to ensure the Inspector-General can conduct full and genuine inquiries as part of
exercising relevant functions, such as undertaking a review, with access to all relevant
information. More specifically, abrogating legal professional privilege is reasonable,
necessary and proportionate to the objective of allowing the Inspector-General access
to communications containing legal advice to understand any legal or legislative
constraints or parameters which may have caused Commonwealth entities (or officials
of those entities) participating in the administration or regulation of aged care to make
certain decisions or actions, or classes of decisions or actions. This may include, for
example, legal considerations around how aged care funding was provided under
certain programs, or how care recipients may have been determined to be eligible for
aged care, which in turn may illuminate broader systemic issues.
The abrogation of privilege is also balanced by subclause 52(3) having the effect of
preserving a claim of legal professional privilege that may be made in relation to the
information, document or thing in a different context. In addition, clause 45 requires
43
that a person compelled to answer a question that would disclose legally privileged
information would have to do so in private.
Clause 53 - Secrecy provisions
Subclause 53(1) provides that a person is not excused from giving information,
producing a document or thing, or answering questions under subclause 44(2) on the
ground that doing so would breach a secrecy of information provision mentioned in
subclause 53(2).
Overriding the operation of secrecy provisions in other legislation ensures that
information, documents or things can be provided to the Inspector-General in
response to a notice. It is reasonable, necessary and proportionate because of the
strong public interest in ensuring that the Inspector-General is comprehensively
informed by all relevant information, including personal information subject to
secrecy provisions, in the course of investigating systemic aged care issues as part of
its review processes, and ultimately driving improvements in aged care.
This clause is intended to provide an authorisation for a person to provide information
that would ordinarily constitute a breach under another Commonwealth secrecy
regime. For example, subsection 86-2(1) of the Aged Care Act establishes an offence
for the unauthorised recording, use or disclosure of protected information. However,
paragraph 86-2(2)(e) provides that the offence does not apply to conduct that is
otherwise authorised under the Aged Care Act or "any other Act", which will include
this legislation.
This clause is consistent with the exception in APP 6.2(b) under the Privacy Act 1988,
which permits personal information to be disclosed where it is required or authorised
by or under an Australian law. This will ensure a person who provides personal
information in compliance with subclause 40(2) that would ordinarily not be
permitted is authorised to do so for the purposes of the Privacy Act 1988.
However, subclause 53(2) is subject to specific exceptions, which include secrecy
provisions within the laws listed in subclause 53(3). A secrecy provision which
constitutes an exception to subclause 53(2) would not be overridden by the Bill. This
means that a person may not need to give certain information, produce a document or
thing, or answer certain questions, to the Inspector-General for the purposes of the
Bill. For example, the Inspector-General cannot require a person to provide access to
personal medical information protected under the My Health Records Act 2012. There
is a compelling individual interest in preserving the privacy of this information, which
is unlikely to be particularly relevant to the exercise of the Inspector-General's
functions or powers.
Division 3 - Protections relating to disclosing information
Subdivision A - Protecting identity of disclosers in certain circumstances
Clause 54 - Disclosures qualifying for protection
This clause establishes protections for individuals who assist the Inspector-General.
Generally, the protections established through this clause apply in relation to
unsolicited disclosures, whilst those set out in Subdivision C of Division 3 of Part 4
44
offer protections in situations where the individual has been requested or compelled to
provide information.
Subclause 54(1) provides that an individual qualifies for protection under this clause
if, prior to the disclosure being made, the Inspector-General agrees in writing to a
request from that person that their identifying information be protected as
confidential.
Subclause 54(2) lists the requirements that a request for protection must meet,
including that the request be made in writing and must specify the nature of
information to be disclosed.
Subclause 54(3) sets out the matters the Inspector-General must have regard to in
deciding whether to agree to a request for confidentiality, including:
• the nature of the information to be disclosed (which may include
considerations such as whether the information is already publicly available,
or the degree of sensitivity attaching to the information, and how relevant it is
to a particular function of the Inspector-General);
• whether disclosing or enabling a person to ascertain, the personal information
of the discloser is likely to cause them significant and direct detriment to the
discloser (for example, if a disclosure would result in sensitive health
information being disclosed); and
• any other matter which the Inspector-General considers relevant.
Clause 55 - Confidentiality of identity of disclosers
This clause establishes the protections for certain disclosures of information which
qualify for protection under clause 54, and offences and civil penalties for
contravening those protections.
Subclause 55(1) provides that a person contravenes subclause 55(1) if:
• an individual (the discloser) discloses information that qualifies for protection
under clause 54; and
• the person discloses relevant confidential information, namely personal
information about the discloser, or any other information that is likely to lead
to the identification of the discloser; and
• the person obtained the confidential information directly or indirectly because
of the individual's disclosure made in accordance with clause 54; and
• the disclosure of information was not authorised under subclause 55(2).
Subclause 55(2) sets out the circumstances in which a disclosure of confidential
information is authorised. For example, paragraph 55(2)(a) provides that a disclosure
made to a member of the Australian Federal Police (within the meaning of the
Australian Federal Police Act 1979) is an authorised disclosure.
These authorisations, which constitute authorisations for the purposes of APP 6, are
reasonable, necessary and proportionate because they would permit authorised
disclosures to a limited number of entities or persons for purposes that are within the
public interest (for example, to the Australian Federal Police to investigate potential
crimes), or where the need to maintain confidentiality is disproportionate or
45
inappropriate to the penalty for contravention (for example, the confidential
information was lawfully in the public domain before the disclosure was made).
Subclauses 55(3) and 55(4) establish an offence and a civil penalty for contravening
the disclosure of confidential information under subclause 55(1). The penalty for the
offence is 30 penalty units or six months' imprisonment, or both, and the civil penalty
for contravention is 100 penalty units. This combination of an offence and civil
penalty is intended to encourage people to take due care not to disclose confidential
information which qualifies for protection, as it may potentially cause detriment or
harm to the individual to whom the information related. Disclosure of confidential
information would also potentially undermine other individuals' preparedness to assist
the Inspector-General, and undermine the integrity and effectiveness of the office of
the Inspector-General.
The level of the criminal penalty is consistent with the Commonwealth Guide, and
with other Inspectors-General enabling legislation, including the Inspector-General of
Water Compliance established under the Water Act 2007. The civil penalty also
reflects that the relevant criminal penalty cannot be brought against an entity or body
other than an individual.
Subdivision B - Protection from victimisation
Clause 56 - Victimisation prohibited
This clause provides for civil penalties to be imposed in situations where a person
victimises another person due to assistance they may have provided or intend to
provide to the Inspector-General in the performance of its functions. The civil
penalties which may apply under this clause prohibit two categories of victimisation.
Subclauses 56(1) and 56(2) relate to conduct which causes actual detriment, while
subclauses 56(3) to (5) deal with threats to cause detriment.
Actually causing detriment to another person
Subclause 56(1) provides that a person is liable for a civil penalty if they cause
detriment to another person (second person) because they reasonably believe or
suspect that other person has, may, or intends to provide information, a document, or
any other thing to assist in the performance of any power or function.
The relevant provisions do not expressly define 'detriment'; however, examples may
include termination, discrimination, damage to property, damage to reputation,
harassment, intimidation, injury to a person, or any other damage caused.
Subclause 56(2) provides that in proceedings for a civil penalty order against a person
pertaining to a contravention of subclause 56(1), it is not necessary to prove that the
second person or another person has, may or intends to provide relevant assistance to
the Inspector-General (as outlined in paragraph 56(1)(c)).
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Threats to cause detriment to another person
Subclause 56(3) provides that a person (the first person) is liable for a civil penalty if
they threaten to cause any detriment to another person (the second person), in order
to:
• intentionally cause them to fear the threat will be carried out; or
• where they are reckless as to causing the second person to fear the threat will
be carried out.
The first person's threat must arise from a belief or suspicion that another person has,
may or intends to give information, a document or any other thing for the purpose of
assisting in the performance of any power or function.
Subclause 56(4) provides that a threat may be express or implied, or conditional or
unconditional.
Subclause 56(5) provides that in proceedings for a civil penalty order against a person
pertaining to a contravention of subclause 56(3), it is not necessary to show that the
person threatened actually feared that the threat would be carried out.
The civil penalty for contravening both subclause 56(1) and 56(3) is 500 penalty
units. This reflects the serious nature of the potential harm that victimisation may
cause to a person, and the need to establish robust protections to encourage
individuals to provide assistance to the Inspector-General without fear of reprisal.
Subclause 56(6) provides that where a person takes administrative action that is
reasonable to protect a discloser from detriment, this action is not considered to be
victimisation for the purposes of subclauses 56(1) and 56(3). For example, where a
person has made a disclosure in relation to practices in their immediate work area, it
may be appropriate to transfer them to another work area to ensure they are not
subject to any detriment.
The note to subclause 56(6) clarifies that a defendant bears an evidential burden in
relation to the matter, as set out in section 96 of the Regulatory Powers Act.
Subdivision C - Immunity from liability for certain disclosures
Clause 57 - Disclosures qualifying for protection
This clause provides that a disclosure of information qualifies for protections where
an individual discloses information to the Inspector-General, or staff of the
Inspector-General, as a result of being compelled to do so through a notice issued
under subclause 44(2), or voluntarily upon the Inspector-General's request.
Clause 58 - Disclosure that qualifies for protection not actionable etc.
Paragraph 58(1)(a) provides that if a person makes a qualifying disclosure under
clause 57, the person would be afforded immunity from any civil, criminal or
administrative liability (including disciplinary action) for the act of making the
disclosure. Paragraph 58(1)(b) prevents any contractual or other remedy or right from
being brought against the disclosing person on the basis of the disclosure.
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Paragraph 58(2)(a) provides that, without limiting subclause 58(1), disclosures made
in compliance with a request from the Inspector-General would confer the person
with:
• qualified privilege in defamation proceedings in respect of the disclosure; and
• in the absence of malice (as defined in subclause (3)) on the person's part,
protection against liability to an action for defamation at the suit of a person in
respect of the disclosure.
In situations where a person discloses information in response to a notice issued under
subclause 44(2), the discloser has absolute privilege in defamation proceedings in
respect of the disclosure. Additionally, a contract to which the discloser is a party
must not be terminated on the basis that the disclosure constitutes a breach of contract.
Subclause 58(3) provides that the term 'malice', for the purposes of subparagraph
58(2)(a)(ii), includes ill will to the person concerned or any other improper motive.
Subclause 58(4) provides that this clause does not limit or affect any right, privilege
or immunity that a person has, apart from this clause, as a defendant in proceedings,
or an action, for defamation.
Clause 59 - Liability for false or misleading disclosures unaffected
This clause provides that clause 58 does not apply to civil, criminal or administrative
liability where a person knowingly makes a disclosure that is false or misleading.
Subclause 59(2) further provides that clause 58 does not apply to liability for an
offence against sections 137.1 or 137.2 of the Criminal Code that relates to the
disclosure. These offences relate to producing false or misleading documents and
information.
Clause 60 - Person's liability for own conduct not affected
This clause is inserted for the avoidance of doubt and has the effect that a discloser's
liability for his or her own conduct is not affected by the disclosure of that conduct
irrespective of whether the disclosure qualifies for immunity protection under clause
57. For example, the protection provided by clause 54 would not affect the liability
for unlawful conduct which the disclosing party subsequently reports.
Clause 61 - Claims for protection
This clause sets out how a person may seek to invoke the immunity protections
established through clause 58 where civil or criminal proceedings have been instituted
against the person (referred to as the 'primary proceedings').
Under subclause 61(1), the person seeking to invoke the protection under clause 58
bears the onus of pointing to evidence that suggests a reasonable possibility that the
protection applies. If the onus is discharged by the person, the party taking the action
against the person then bears the onus of proving the claim is not made out. These
claims must be dealt with by the court in separate proceedings, with the court being
required to adjourn those primary proceedings until the claim for protection has been
dealt with. Admissions made, or information and evidence given by the individual in
the separate proceedings are not admissible in evidence against the individual, except
in proceedings in respect of the falsity of the admission, evidence or information. The
48
evidence provided in the separate proceedings in support of the claim for protection
under clause 58 does not amount to a waiver of privilege for the purposes of the
primary proceedings or any other proceedings.
Subclause 61(2) clarifies that a right under section 126K of the Evidence Act 1995 not
to be compelled to give evidence is a privilege for the purposes of paragraph 61(1)(f)
of this clause. Paragraph 61(1)(f) provides that if a person gives evidence in the
separate proceedings, privilege would not be waived for the purposes of the primary
proceedings, or any other proceedings. Section 126K of the Evidence Act establishes
a protection of the identity of journalists' sources, sometimes referred to as
journalists' privilege.
Clause 62 - Protection has effect despite other Commonwealth laws
This clause provides that clause 58 has effect despite any other provision of a law of
the Commonwealth unless the provision is enacted after the commencement of this
clause and is expressed to have effect despite this Subdivision or clause 58.
Division 4 - Secrecy of Information
Clause 63 - Unauthorised use or disclosure of protected information
This clause provides an offence for the unauthorised use or disclosure of 'protected
information', which is a defined term in clause 5.
A person commits an offence if the person is or has been an 'entrusted person' who
has obtained protected information in their capacity as an entrusted person, and they
use or disclose that protected information.
An 'entrusted person' is a defined term in clause 5 which includes the
Inspector-General, a member of Staff of the statutory agency assisting the
Inspector-General, or a person or consultant assisting or engaged by the
Inspector-General. 'Protected information' is also a defined term in clause 5.
The penalty for contravening the offence which prohibits the unauthorised use and
disclosure of protected information is 2 years imprisonment or 120 penalty units, or
both. The level of penalty is comparable to similar offences in other Commonwealth
legislation. It also reflects the need for a robust framework of deterrence for conduct
which may result in the disclosure of information where it is not reasonable, necessary
or appropriate, and the potential for such disclosures to cause harm to entities and
individuals. Finally, inappropriate or improper use or disclosure of information has
the potential to seriously undermine public confidence in the Inspector-General's
capacity to deal with such information, which may have negative flow on effects for
the integrity of the Office of the Inspector-General.
Subclause 63(2) provides that the penalty for using or disclosing protected
information does not apply if it is authorised by a provision of clause 64.
The note to subclause 63(2) clarifies that a defendant in proceedings pertaining to a
matter in this subclause bears an evidential burden (see subsection 13.3(3) of the
Criminal Code).
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Clause 64 - Authorisations to use or disclose information
This clause outlines the circumstances in which a use or disclosure of protected
information by an entrusted person is an authorised use or disclosure.
Subclause 64(1) provides that an entrusted person may use or disclose protected
information in performing functions or duties or exercising powers. For example, this
may include the performance of the Inspector-General's review and reporting
functions. In practice, it is not anticipated that the Inspector-General would publish
personal information, such as in relation to a care recipient's aged care services.
The first note at subclause 64(1) clarifies that a provision in this section constitutes an
authorisation for the purposes of the Privacy Act 1988 and other laws, including the
common law. The second note clarifies that 'use' of information includes making a
record of that information, as defined in clause 5.
Subclause 64(2) provides that an entrusted person may disclose protected information
to a court or tribunal, or in accordance with an order of a court or tribunal, for the
purpose of proceedings.
Subclause 64(3) provides that an entrusted person may use or disclose protected
information to an enforcement body, if that person reasonably believes that the use or
disclosure is reasonably necessary for, or directly related to, one or more enforcement
related activities being conducted by, or on behalf of, that enforcement body.
Under subclause 64(4), an enforcement body who receives protected information from
an entrusted person may use or disclose that information for one or more enforcement
related activities that body is conducting, or that is being conducted on its behalf.
'Enforcement body' is defined in clause 5 as having the same meaning as in the
Privacy Act 1988, and includes bodies such as the Australian Federal Police, State and
Territory police forces and corruption commissions.
Subclause 64(5) provides that an entrusted person may use or disclose protected
information if the use or disclosure is required or authorised under another Australian
law. For example, this may include disclosure to a Minister in response to a request by
the Minister to give reports, documents or information in relation to the
Inspector-General's activities under section 19(1)(b) of the Public Governance,
Performance and Accountability Act 2013.
Subclause 64(6) provides that an entrusted person may disclose protected information
to the person to whom the information relates.
Subclause 64(7) provides that an entrusted person (the first person) may use or
disclose protected information for a purpose if the person to whom the information
relates has expressly consented to the first person using or disclosing the information
for that purpose. Whilst the term 'expressly consented' is not specifically defined, a
person would generally give express consent if giving it openly, either verbally or in
writing. Implied consent, which might involve the Inspector-General informing a
person of their collection of personal information, would not constitute express
consent to the use and disclosure of protected information.
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Subclause 64(8) provides that an entrusted person may disclose protected information
to the person who provided the information.
Subclause 64(9) provides that an entrusted person may use protected information, or
disclose protected information to another person, if the information has already been
lawfully made publicly available.
Subclause 64(10) provides that an entrusted person may disclose protected
information to the Commonwealth Ombudsman, or another officer within the
meaning of subsection 35(1) of the Ombudsman Act 1976, or to the Australian
Information Commission, or a member of staff of the Office of the Australian
Information Commissioner, or a consultant engaged under the Australian Information
Commissioner Act 2010. The disclosure to those persons or entities must be for the
purposes of allowing them to exercise their powers, or perform their functions or
duties.
Subclause 64(11) provides that an entrusted person may use or disclose protected
information for the purpose of achieving one or more objects of the Bill if the
Inspector-General certifies in writing that it is necessary in the public interest for the
person to use or disclose the information for that purpose. This will require the
Inspector-General to turn their mind to public interest considerations and whether the
use or disclosure of protected information in a particular circumstance is necessarily
aimed at achieving the objects of the legislation. For example, this may include
consideration of whether the disclosure of information to a person is intended to
facilitate positive change for older Australians who are or may be intending to enter
the aged care system.
Subclause 64(12) provides that an entrusted person may disclose protected
information, or any other information obtained by the person in their capacity as an
entrusted person, if the disclosure is necessary to lessen or prevent a serious threat to
the safety, health and wellbeing of an aged care consumer (within the meaning of the
Aged Care Quality and Safety Commission Act 2018).
These authorisations are consistent with the exceptions outlined in APP 6 regarding
personal information. They are reasonable, necessary and proportionate because they
are directed at the performance of functions and exercise of powers under legislation
(including this Bill), the enforcement of laws, or are matters of public interest with a
high threshold that must be met in order to rely on them (such as being necessary to
prevent or lessen a serious threat to human health).
Part 5 - Compliance and enforcement
Clause 65 - Simplified outline of this Part
This clause provides a general overview to assist readers in understanding the
substantive provisions in Part 5, which deals with civil penalty orders that may be
sought under Part 4 of the Regulatory Powers Act, and a number of machinery
provisions where both civil and criminal consequences attach to a breach of the
provision.
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Clause 66 - Civil penalty provisions
Subclause 66(1) provides that each civil penalty provision of the Bill will be
enforceable under Part 4 of the Regulatory Powers Act. A note is included at the end
of subclause 66(1) to advise the reader that Part 4 of the Regulatory Powers Act
allows a civil penalty provision to be enforced by obtaining an order for a person to
pay a pecuniary (monetary) penalty for the contravention of the provision.
This means that the standard provisions in Part 4 of the Regulatory Powers Act will
apply in relation to the civil penalty provisions in this legislation. This includes
section 85 of the Regulatory Powers Act, meaning that a relevant court may make a
single civil penalty order against a person for multiple contraventions of a civil
penalty provision if proceedings for the contraventions are founded on the same facts,
or if the contraventions form, or are part of, a series of contraventions of the same or a
similar character. However, the penalty must not exceed the sum of the maximum
penalties that could be ordered if a separate penalty were ordered for each of the
contraventions. There are no criminal consequences associated with civil penalty
orders for multiple contraventions; that is, they do not carry the possibility of
imprisonment.
Subclause 66(2) provides that, for the purposes of Part 4 of the Regulatory Powers
Act, the Inspector-General is an authorised applicant in relation to the civil penalty
provisions of the legislation. Under section 82 of the Regulatory Powers Act, an
authorised applicant may apply to a relevant court for an order that a person, who is
alleged to have contravened a civil penalty provision, pay the Commonwealth a
pecuniary penalty.
Subclause 66(3) provides that, for the purposes of Part 4 of the Regulatory Powers
Act, each of the following a relevant court in relation to the civil penalty provisions
referred to in subclause 33(1):
• the Federal Court of Australia,
• Division 2 of the Federal Circuit and Family Court of Australia; or
• a court of a State or Territory that has jurisdiction in relation to matters arising
under the Bill.
Clause 67 - Physical elements of offences
This clause clarifies that where a provision of the Bill provides that a person
contravening another provision of this Bill (the conduct rule) commits an offence, for
the purposes of applying Chapter 2 of the Criminal Code, the physical elements of the
offence are set out in the conduct rule provision. The note to this clause clarifies that
Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
Clause 68 - Contravening an offence provision or a civil penalty provision
This clause clarifies that where a provision provides that a person contravening
another provision (the conduct provision) commits an offence or contravenes a civil
penalty provision, a reference to a contravention of an offence provision or a civil
penalty provision includes a reference to a contravention of the conduct provision.
This is because the conduct provision will set out the relevant physical elements of the
offence or civil penalty provision that is being referenced.
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Part 6 - Miscellaneous
Clause 69 - Simplified outline of this Part
This clause provides a general overview to assist readers in understanding the
substantive provisions in Part 6.
Clause 70 - Protection from liability
Subclauses 70(1) and 70(2) provide that entrusted persons and the other persons
specified in paragraphs 70(1)(b) to (d) (protected persons) are not liable to civil
proceedings for loss, damage or injury of any kind suffered by another person as a
result of anything done, or any omissions, by the protected person, in good faith, in
the performance or purported performance of a function or duty conferred, or the
exercise or purported exercise of a power conferred.
This will enable protected persons to perform their functions and exercise their
powers without being obstructed by challenges to the performance of those functions
or the exercise of those powers through civil proceedings for loss, damage or injury.
This clause also ensures persons who are delegates, or who are assisting in the
performance of functions or powers, of the Inspector-General are protected from
liability. In addition, the provision will provide immunity from civil liability for
conduct that may otherwise constitute a tort (for example, damage to property). The
Inspector-General and those working for or with the Office of the Inspector-General
should be able to perform their functions and exercise their powers under the Bill
without fear of being sued when they act in good faith.
Clause 71 - Annual report
This clause specifies additional information that must be included within the annual
report that section 46 of the Public Governance, Performance and Accountability Act
2013 requires the Inspector-General to prepare and give to the Minister. Specifically,
the report must include:
• information about the performance of the Inspector-General's functions,
including the number of reviews under Division 3 of Part 2 that were started
and completed during the relevant reporting period; and
• information and statistics about the exercise of the Inspector-General's powers
during the period, including the number of notices issued under clause 44 and
the number of times premises were accessed, and the circumstances of entry.
• any other matter prescribed by the regulations.
Subclause 71(2) prevents a report from including information which the
Inspector-General is satisfied is sensitive information.
These provisions will provide additional visibility around the specific operations of
the Inspector-General, which will increase transparency of its oversight of the aged
care system.
Clause 72 - Delegation by the Inspector-General
This clause allows the Inspector-General to delegate, in writing and subject to
subclauses 72(2) and 72(3), any of the Inspector-General's functions, powers or
duties, to a member of the staff of the Inspector-General. The Inspector-General is
only empowered to delegate relevant functions, powers or duties to staff who:
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• are an SES employee or acting SES employee; or
• hold, or are acting in, an Executive Level 2, or equivalent, position.
Enabling SES level and Executive Level 2 level employees where permitted, to
exercise relevant functions, powers or duties will assist the Inspector-General, who
may be appointed on a part-time basis, to better manage their workload.
This might include, for example, facilitating concurrent reviews and preparing
multiple reports. It would also provide practical assistance if a relevant function
needed to be exercised under certain circumstances and the Inspector-General was
personally unavailable.
Given that the SES staffing profile of the Office of the Inspector-General is expected
to be limited, it is also appropriate for a person holding, or acting in, an Executive
Level 2 position to exercise some of the Inspector-General's functions, powers or
duties under delegation. It is anticipated that this will be necessary, at times, to ensure
those functions can be discharged in a timely manner. It is also noted that the Bill
appropriately limits delegation of certain significant functions or powers to SES or
acting SES employees.
Subclause 72(2) prevents the Inspector-General from delegating the functions, powers
or duties in the provisions listed in paragraphs (a) to (j). These powers are to be
exercised solely by the Inspector-General as they represent the core functions of the
statutory office.
Additionally, the Inspector-General may only delegate the Inspector-General's
functions, powers or duties pursuant to clause 18 (notice of review) and paragraph
50(7)(b) (authorised officials) to an SES employee or an acting SES employee.
Subclause 72(4) requires that the delegate comply with any written directions of the
Inspector-General in exercising the delegation.
Clause 73 - Regulations
This clause authorises the Governor-General to make regulations prescribing matters
required or permitted, or necessary or convenient to be prescribed for carrying out or
giving effect to the primary legislation.
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INSPECTOR-GENERAL OF AGED CARE (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2023
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the short title of the Act to be enacted by the Bill to be the
Inspector-General of Aged Care (Consequential and Transitional Provisions) Act
2023.
Clause 2 - Commencement
This clause sets out when the Act commences. The table in subclause 2(1) provides
that the whole Act commences at the same time as the Inspector-General of Aged
Care Act 2023 commences. However, the provisions do not commence at all if the
Inspector-General of Aged Care Act 2023 (the IGAC Act) does not commence. The
note to subclause 2(1) clarifies that the table only relates to the provisions of the Act
as it is originally enacted, and will not be amended to deal with any later amendments
of the Act.
Subclause 2(1) clarifies that any information in column 3 of the table is not part of the
Act, and that information may be inserted in this column, or information in it may be
edited, in any published version of this Act.
Clause 3 - Schedules
This clause provides that legislation specified in a Schedule to the Consequential and
Transitional Provisions Bill is amended or repealed as set out in the applicable items
in the Schedule concerned, and that any other item in a Schedule has effect according
to its terms. This is a technical provision which gives operational effect to the
amendments contained in each of the Schedules to this legislation.
Schedule 1 -- Consequential Amendments
Aged Care Act 1997
Item 1 - After paragraph 86-3(1)(b)
This item would amend subsection 86-3(1) of the Aged Care Act 1997 (Aged Care
Act) by inserting a new paragraph 86-3(1)(baa) after paragraph 86-3(1)(b). This
amendment would authorise the Secretary of the Department to voluntarily disclose
protected information (within the meaning of the Aged Care Act) to the Inspector-
General for the purpose of assisting in the performance of functions or exercise of
powers of the Inspector-General under the IGAC Act or instruments made under that
Act.
It is intended that this provision would provide a mechanism by which protected
information under the Aged Care Act could be disclosed to the Inspector-General
where it would assist in the performance of the Inspector-General's functions or the
exercise of their powers under the IGAC Act. Any disclosures of protected
information by the Secretary of the Department to the Inspector-General under new
paragraph 86-3(1)(baa) will be subject to the added protections provided by section
86-5 of the Aged Care Act. Section 86-5 places limits on the recording, use or
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disclosure of information where that information is disclosed to a person under
section 86-3 (among other provisions) of the Aged Care Act.
Item 2 - Clause 1 of Schedule 1
This item would insert a new definition of 'Inspector-General of Aged Care' into
clause 1 of Schedule 1 to the Aged Care Act. The new definition would provide that
the 'Inspector-General of Aged Care' means the Inspector-General of Aged Care
referred to in section 9 of the IGAC Act.
This provision is consequential to item 1 (as explained above) and the insertion of
new paragraph 86-1(3)(baa) into the Aged Care Act.
Aged Care Quality and Safety Commission Act 2018
Item 3 - Section 7
This item would insert a new definition of 'Inspector-General of Aged Care' into
section 7 of the Aged Care Quality and Safety Commission Act 2018 (Aged Care
Quality and Safety Commission Act). The new definition would provide that the
'Inspector-General of Aged Care' means the Inspector-General of Aged Care referred
to in section 9 of the IGAC Act.
This provision is consequential to item 4 (as explained below) and the insertion of
new paragraph 61(1)(ba) into the Aged Care Quality and Safety Commission Act.
Item 4 - After paragraph 61(1)(b)
This item would amend subsection 61(1) of the Aged Care Quality and Safety
Commission Act by inserting a new paragraph 61(1)(ba) after paragraph 61(1)(b).
This would authorise the Aged Care Quality and Safety Commissioner
(Commissioner) to voluntarily disclose protected information (within the meaning of
the Aged Care Quality and Safety Commission Act) to the Inspector-General to assist
in the performance of functions or exercise of powers of the Inspector-General under
the IGAC Act or instruments made under that Act.
It is intended that this provision would provide a mechanism by which information
that is considered protected information under the Aged Care Quality and Safety
Commission Act could be disclosed to the Inspector-General where that information
would assist in the performance of their functions or the exercise of their powers
under the IGAC Act. Any disclosures of protected information by the Commissioner
to the Inspector-General under new paragraph 61(1)(ba) would be subject to the added
protections provided by section 62 of the Aged Care Quality and Safety Commission
Act. Section 62 of the Aged Care Quality and Safety Commission Act places limits on
the recording, use or disclosure of information where that information is disclosed to a
person under section 61 of the Aged Care Quality and Safety Commission Act.
National Anti-Corruption Commission Act 2022
Item 5 - Section 7
This item would insert a new definition of 'Inspector-General of Aged Care' into
section 7 of the National Anti-Corruption Commission Act 2022 (NACC Act). The
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new definition would provide that the 'Inspector-General of Aged Care' means the
Inspector-General of Aged Care referred to in section 9 of the IGAC Act.
This provision is consequential to item 6 (as explained below) and the insertion of
new paragraph 15(pa) into the NACC Act.
Item 6 - After paragraph 15(p)
This item would insert a new paragraph 15(pa) into the NACC Act after paragraph
15(p), which would prescribe the 'Inspector-General of Aged Care' as a
'Commonwealth integrity agency' for the purposes of the NACC Act.
Section 45 of the NACC Act provides for an additional threshold to the
commencement of a corruption investigation where the Commissioner of the National
Anti-Corruption Commission (NACC) is aware that a Commonwealth integrity
agency (as defined in section 15 of the NACC Act) has previously concluded an
investigation into a matter regarding the conduct of a public official.
Prescribing the Inspector-General as a Commonwealth integrity agency would mean
that the National Anti-Corruption Commissioner would be required to meet an
additional public interest test under section 45 of the NACC Act before a corruption
investigation can commence in relation to a matter that the National Anti-Corruption
Commissioner is aware has previously been investigated by the Inspector-General.
Prescribing the Inspector-General as a Commonwealth integrity agency would mean
that the additional threshold would apply to investigations that the NACC
Commissioner is aware were previously conducted by the Inspector-General. In such
circumstances, the NACC Commissioner would be required to meet an additional
public interest test under section 45 of the NACC Act before they could commence a
corruption investigation.
Schedule 2 - Application, saving and transitional provisions
Item 1 - Definitions
This item defines a number of terms for the purposes of Schedule 2, including the
definition of transition time, which means the date of commencement of the IGAC
Act.
Item 2 - Transfer of Records
This item provides that any records or documents in the possession of the interim
Inspector-General, or an APS employee of the Department who was assisting the
interim Inspector-General, before the transition time are deemed to be transferred to
the Inspector-General after the transition time.
The note at the end of this item clarifies that the records and documents are
Commonwealth records for the purposes of the Archives Act 1983.
Item 3 - Review may relate to matters occurring before or after transition time
Item 3 authorises the Inspector-General to consider actions and decisions undertaken
by the Commonwealth, as they relate to the performance of the Inspector-General's
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functions provided for in paragraphs 10(1)(a) to (d) of the IGAC Act, whether they
occurred before or after the transition time.
Item 4 - Rules
This item enables rules to be made which will prescribe matters of a transitional or
consequential nature. Rules may prescribe actions of the interim Inspector-General of
Aged Care performed under interim administrative arrangements as having been
performed by the Inspector-General under the statutory arrangements to be
established under the IGAC Act at the transition time.
This item also clarifies that the rules made under this item are a legislative instrument
for the purposes of the Legislation Act 2003. Under that Act, legislative instruments
and their explanatory statements must be tabled in both Houses of the Parliament
within 6 sitting days of the date of registration of the instrument on the Federal
Register of Legislation. Once tabled, the rules will be subject to the same level of
parliamentary scrutiny as regulations (including consideration by the Senate Standing
Committee for the Scrutiny of Delegated Legislation), and a motion to disallow the
rules may be moved in either House of the Parliament within 15 sitting days of the
date the rules are tabled.
Subitem 4(1) authorises the Minister specifically to make rules prescribing matters:
• required or permitted by the Consequential and Transitional Provisions Bill to
be prescribed in the regulations; or
• which are necessary or convenient to be prescribed for carrying out or giving
effect to the Consequential and Transitional Provisions Bill.
Subitem 4(2) provides that without limiting subitem 4(1), the rules may prescribe
transitional matters (including any saving or application provisions) relating to
amendments or appeals made by the Consequential and Transitional Provisions Bill,
or the enactment of the Consequential and Transitional Provisions Bill or the IGAC
Bill.
Subitem 4(3) clarifies that matters such as compliance and enforcement, the
imposition of taxes, setting amounts to be appropriated, and amendments to the text of
an Act, may not be prescribed in rules.
Subitem 4(4) clarifies that rules made under this Bill would have no effect in so far as
they are inconsistent with regulations made under the IGAC Act.
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