Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
INSPECTOR-GENERAL OF AGED CARE BILL 2023
INSPECTOR-GENERAL OF AGED CARE (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2023
ADDENDUM TO THE 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
This addendum responds to:
• concerns raised by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny
of Bills Committee) in Scrutiny Digest 5 of 2023 dated 10 May 2023; and
• matters raised during the course of the Senate Community Affairs Legislation
Committee's (Community Affairs Committee) inquiry into the Inspector-General of
Aged Care Bill 2023 (IGAC Bill) and the Inspector-General of Aged Care
(Consequential and Transitional Provisions) Bill 2023 (Consequential and
Transitional Provisions Bill), which was referred by the Senate on 23 March 2023.
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SCHEDULE 1 - Amendments
Inspector-General of Aged Care Bill 2023
Clause 3 - Objects
Immediately after the last paragraph of the explanatory material for clause 3 on page 20 of
the Explanatory Memorandum, insert the following new paragraph:
Importantly, the inclusion of 'complaints management processes' in this clause ensures
that the functions and powers conferred on the Inspector-General under the Bill apply
to the Commonwealth's administration of complaints management processes, including
the ability to analyse complaints data to monitor for issues in relation to how
Commonwealth entities are administering the aged care system. It also clearly signals
that reviewing and reporting on the Commonwealth's administration of complaints
processes falls squarely within the Inspector-General's remit. This is despite the
Inspector-General not having a hands-on role in the resolution of individual complaints.
This in turn is intended to give recipients of aged care confidence that the importance
placed on effective complaints management by the Royal Commission has not been
disregarded, but rather has been adapted to a model which best supports the Inspector-
General's independence, objectivity and impartiality. This also ensures the roles and
functions of the Inspector-General complement, rather than duplicate, those of other
government agencies and offices, such as the newly appointed Aged Care Complaints
Commissioner within the Aged Care Quality and Safety Commission, who have a role
in addressing and responding to individual complaints.
This additional material emphasises the importance of, and provides additional context to,
the Inspector-General's role within the aged care system in overseeing the Commonwealth's
administration of complaints management processes. It responds to submissions provided
through the Community Affairs Committee's inquiry into the Bill, and the issues highlighted
in relation to complaints in the Committee's final report.
Clause 5 - Definitions
Immediately after the last paragraph of the definition for 'sensitive information' under
clause 5 on page 22 of the Explanatory Memorandum, insert the following new paragraphs:
The definition of sensitive information is important in defining a number of subsequent
provisions in the Bill. For example, paragraph 26(a) of the Bill provides that a draft
review report or a final review report (prepared under clause 21 or clause 24
respectively) must not include information that the Inspector-General is satisfied is
sensitive information.
Consistent with clause 5, information is 'sensitive information' if the disclosure of that
information would be contrary to the public interest for any of the reasons listed in
paragraphs (a) to (f) of the definition. This may include, for example, because 'it would
reasonably be expected to prejudice the commercial interests of any person or body'
(paragraph (e) of the definition of 'sensitive information' refers).
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In this instance, it is intended that the Inspector-General would need to be satisfied both
that disclosure of the relevant information would reasonably be expected to prejudice
the commercial interest of a person or body (for example, a provider of aged care
services), and that its disclosure would be contrary to the public interest. If the Inspector-
General is not satisfied that both elements have been met, the information would not be
sensitive information, and the Inspector-General would not be prevented from disclosing
it in a draft or final review report.
It is intended that this additional material provide clarity around the interpretation of the
definition of 'sensitive information' in clause 5 in the context of relevant provisions in the
Bill which rely on that definition.
Clause 29 - Extra reports to Parliament
Immediately after the last paragraph of the explanatory material for clause 29 on page 32 of
the Explanatory Memorandum, insert the following new paragraph:
Importantly, the powers of the Inspector-General under clause 29 sit in addition to the
requirements in clause 28 for the Inspector-General to conduct two reviews to evaluate
the implementation by the Commonwealth of the Royal Commission's
recommendations on or before 1 March 2026 and 1 March 2031 respectively.
Specifically, it will enable the Inspector-General to, at any time, prepare and issue
reports which relate to its functions. This includes its powers to monitor the
Commonwealth's progress in implementing the Royal Commission's recommendations.
It is, therefore, not intended that the Inspector-General's review and reporting on the
Commonwealth's implementation of the Royal Commission's recommendations be
limited to only the two specific reviews set out in clause 28, which directly implement
Recommendation 148 of the Royal Commission's Final Report.
This additional material provides clarification around the scope of the Inspector-General's
role in reviewing and reporting on the implementation by the Commonwealth of the Royal
Commission's recommendations. It responds to submissions provided through the
Community Affairs Committee's inquiry into the Bill, and the issues raised with respect to
complaints in the Committee's final report.
Clause 50 - Access to premises etc.
Immediately after the eleventh paragraph of the explanatory material for clause 50 on page
41 of the Explanatory Memorandum which specifies that the note to subclause 50(8)
clarifies that section 149.1 of the Criminal Code deals with obstruction of Commonwealth
public officials, insert the following new paragraphs:
Scope of the access to premises power
The scope of the access to premises power, and its alignment to a comparable oversight
framework, are necessary and appropriate for the Inspector-General's functions and
context.
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Whilst the access to premises power is expected to be used primarily to enter
Commonwealth premises, the scope of the power is necessary and appropriate to enable
the Inspector-General to perform their functions under clause 10, which relate to
oversight of the Commonwealth's administration of aged care laws, systems and
funding agreements.
As such, the Inspector-General will need to access non-Commonwealth premises
involved in the operation of aged care laws and programs in order to properly fulfill
these functions. It is envisaged that non-Commonwealth premises could include the
premises of:
• entities who are contracted to undertake classification assessments on behalf of
the Commonwealth for the purposes of the Australian National Aged Care
Classification (AN-ACC) funding model; and
• recipients of advocacy grants made under Part 5.5 of the Aged Care Act 1997.
The scope is similar to the Auditor-General Act 1997, which provides access to the
non-Commonwealth premises of a 'Commonwealth partner' for the purpose of
oversight.
Immediately before the twelfth paragraph of the explanatory material for clause 50 on page
41 of the Explanatory Memorandum, insert the following new sub-heading:
Comparable framework
Immediately after the final paragraph of the explanatory material for clause 50 on page 42
of the Explanatory Memorandum, insert the following new paragraphs:
Additionally, Part 3 of the Regulatory Powers Act is not an appropriate framework for
the Bill because it cannot be used to perform their necessary oversight functions.
This is because section 38 of the Regulatory Powers Act provides that the Part 3 powers
only apply to investigating offence and civil penalty provisions that the triggering Act
prescribes as 'subject to investigation'. The only offence and civil penalty provisions in
the Bill that are so prescribed are facilitative in nature.
In contrast, and as noted above, the intended purpose of the access to premises power is
to conduct oversight of the Commonwealth's administration of the aged care system.
The power is not intended to be used to investigate individual compliance with an
offence or civil penalty provision under the Bill, but rather, it will be used to inform the
Inspector-General's oversight in determining the overall effectiveness of the aged care
legislation, funding agreements and administrative systems.
Bodies that operate in a similar oversight context, such as the Commonwealth
Ombudsman, six Inspectors-General, the Auditor-General and the National
Anti-Corruption Commission, similarly do not use the framework in Part 3 of the
Regulatory Powers Act.
This additional material provides clarification on the scope of the Inspector-General's
access to premises powers as they relate to non-Commonwealth entities, and clarifies why
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the framework established under the Auditor-General Act 1997 provides a more appropriate
comparable framework than the Regulatory Powers Act due to the oversight nature of the
Inspector-General's functions. In doing so, it responds to concerns raised by the Scrutiny of
Bills Committee in Scrutiny Digest 5 of 2023 dated 10 May 2023.
Clause 58 - Disclosure that qualifies for protection not actionable etc.
Immediately after the final paragraph of the explanatory material for clause 58 on page 48
of the Explanatory Memorandum, insert the following new paragraphs:
Under clause 57, only a disclosure made to an official of the Office of the Inspector-
General in response to a request or coercive notice from the Inspector-General can
enliven the immunity provided under clause 58 - that is, where the Inspector-General is
actively seeking information.
The provision of comprehensive information to the Inspector-General is critical to
effective oversight of the aged care system, addressing systemic issues, and ultimately
achieving improved outcomes for older Australians receiving aged care.
The immunity conferred through clause 58 is necessary to enable an individual to
provide assistance to the Inspector-General without fear of being subject to civil,
criminal or administrative liability. In the absence of strong protections for individuals
who provide such assistance, there is a substantial risk that the Inspector-General's
performance of their functions would be hampered due to an individual deciding to
withhold important information.
The scope of the immunity preserves a person's right to bring a legal action in
circumstances where disclosures are made with malicious intent, or are false or
misleading, as provided for in clause 59. This immunity applies only to the act of
disclosure itself, with any actions disclosed by the person and their liability for those
actions remaining unaffected by the immunity (as outlined in clause 60). Finally, the
immunity does not extend to unsolicited disclosures. An individual can only claim the
immunity where the Inspector-General has actively sought information from them,
whether compulsorily in the form of a notice under subclause 44(2) or voluntarily at the
Inspector-General's request.
In light of the above considerations, the immunity is necessary and appropriate to
support the performance of the Inspector-General's functions.
This material provides additional context and a justification on why it is necessary for clause
58 to provide immunity from liability to an individual making a qualifying disclosure under
clause 57, and thereby effectively limiting another person's right to bring legal action. In
doing so, it responds to concerns raised by the Scrutiny of Bills Committee in Scrutiny
Digest 5 of 2023 dated 10 May 2023.
Clause 61 - Claims for protections
Immediately after the second paragraph of the explanatory material for clause 61 on page
49 of the Explanatory Memorandum, insert the following new paragraphs:
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Paragraph 61(1)(a) has the effect of reversing the evidential burden of proof by requiring
a person to adduce evidence suggesting a reasonable possibility that the immunity
conferred under clause 58 should apply to them. Clause 58 provides a broad immunity
to persons who have made a qualifying disclosure from civil, criminal or administrative
liability, or being subject to a contractual or other remedy.
Given the breadth of possible criminal and civil matters in which a person could be
involved, it is not reasonable to assume that a prosecutor or plaintiff would know that
an immunity may apply under the Bill. Conversely, it would be peculiarly within the
knowledge of a defendant seeking to assert an immunity in the broad circumstances
contemplated under the Bill that they had made a disclosure qualifying for protection.
This additional material provides additional justification in respect to why it is necessary
and appropriate for paragraph 61(1)(a) to reverse the evidential burden of proof by requiring
a person seeking to rely on the immunities in clause 58 to bear the onus of adducing or
pointing to evidence that suggests a reasonable possibility those immunities apply to them.
In doing so, it responds to concerns raised by the Scrutiny of Bills Committee in Scrutiny
Digest 5 of 2023 dated 10 May 2023.
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