Commonwealth Numbered Regulations - Explanatory Statements

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INSPECTOR-GENERAL OF AGED CARE REGULATIONS 2023 (F2023L01356)

EXPLANATORY STATEMENT

Inspector-General of Aged Care Act 2023

Inspector-General of Aged Care Regulations 2023

Purpose and operation

The purpose of the Inspector-General of Aged Care Regulations 2023 (Regulations) is to prescribe:

• remuneration for the Inspector-General of Aged Care (the Inspector-General) if no determination made by the Remuneration Tribunal is in operation; and
• the information to be provided to the Inspector-General in support of a request that a discloser's identifying information be protected as confidential.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

Background

The Inspector-General of Aged Care Act 2023 (Act) establishes the Office of the Inspector-General of Aged Care as an independent agency to support the
Inspector-General in the performance of its functions. Broadly, these functions empower the Inspector-General to monitor, investigate and report to the Minister and Parliament on the Commonwealth's administration, governance 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 Act received Royal Assent on 17 August 2023 and has been proclaimed to commence on 16 October 2023.

Authority

Section 73 of the Act provides that the Governor-General may make regulations prescribing matters that are required or permitted by the Act to be prescribed by regulations, or that are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 4 of the Acts Interpretation Act 1901 (Acts Interpretation Act) provides authority for legislative instruments, including regulations, to be made after enactment but before the commencement of the relevant enabling legislation. Subsection 4(2) of the Acts Interpretation Act enables the Governor-General to exercise the power to make the Regulations before commencement as if the Act has already commenced.

Remuneration for the Inspector-General of Aged Care

Subsection 34(1) of the Act provides that regulations may prescribe the remuneration that is to be paid to the Inspector-General if no determination of remuneration by the Remuneration Tribunal is in operation.

Subsection 34(2) of the Act provides that regulations may prescribe the allowances to be paid to the Inspector-General.

Request for confidentiality of identifying information

Section 54 provides that a disclosure of information by an individual qualifies for protection if, prior to the disclosure being made, the Inspector-General agrees in writing to a request from that individual that their identifying information be protected as confidential. 

Subsection 54(2) lists the requirements that a request for protection must meet, including that the request must be accompanied by any other documents or information prescribed in the regulations.

Commencement

The Regulations commence at the same time as the Inspector-General of Aged Care Act 2023.

Consultation

The Regulations prescribe matters of a standard technical and operational nature pertaining to the renumeration and allowances of the Inspector-General and information which must accompany a request that an individual's identifying information be kept confidential.

Public feedback was sought through policy documentation explaining the operation of provisions, including matters proposed to be in delegated legislation, which accompanied an exposure draft of the Inspector-General of Aged Care Bill 2023. As such, consultation on the details of the Regulations was considered unnecessary.

General

This instrument is a legislative instrument for the purposes of the Legislation Act 2003.

Details of this instrument are set out in Attachment A.

This instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.

ATTACHMENT A

Details of the Inspector-General of Aged Care Regulations 2023

Section 1 - Name

Section 1 provides that the title of the instrument is the Inspector-General of Aged Care Regulations 2023 (Regulations).

Section 2 - Commencement

Section 2 provides that the Regulations will commence at the same time as the Inspector-General of Aged Care Act 2023 (Act).

Section 3 - Authority

Section 3 provides that the Regulations are made under the Act.

Section 4 - Definitions

Section 4 defines the following term in the Regulations:

Act means the Inspector-General of Aged Care Act 2023.

Section 5 - Remuneration and allowances of Inspector-General

This section provides for the remuneration and allowances to be paid to the
Inspector-General of Aged Care (Inspector-General).

Subsection 5(1) provides, for the purposes of subsections 34(1) and (2) of the Act, that the Inspector-General is to be paid the same remuneration and allowances as if:

*                 a reference in the Remuneration Tribunal (Remuneration and Allowances for Holders of Full-time Public Office) Determination (No. 1) 2023 (Remuneration Tribunal Determination) to an officer holder included a reference to the Inspector-General; and

*                 Table 2A in section 10 of the Remuneration Tribunal Determination:

o   included a reference in column 1 to the office of the Inspector-General; and

o   a reference in column 2 to a total remuneration (per year) of $427,120 for that office.

The reference to the Remuneration Tribunal Determination means a reference in the Remuneration Tribunal Determination as in force at the commencement of the Regulations.

The effect of this subsection is that the total remuneration (per year) is $427,120.

Subsection 5(2) provides, for the purposes of subsection 34(2) of the Act, that the Inspector-General is to be paid the same allowances in relation to travel for business pertaining to or required by the duties of the office as if:

*                 a reference in Parts 4, 5 and 6 of the Remuneration Tribunal (Official Travel) Determination 2023 (Official Travel Determination) to an office holder included a reference to the Inspector-General; and

*                 the travel tier specified for the Inspector-General for the purposes of the Official Travel Determination was tier 2.

The reference to Official Travel Determination means a reference in the Official Travel Determination as in force at the commencement of the Regulations.

Part 4 of the Official Travel Determination sets out travel expenses and travel allowance.

Part 5 of the Official Travel Determination provides provisions for official travel by motor vehicle, including motor vehicle allowance.

Part 6 of the Official Travel Determination provides rates of travel allowance.

The effect of this subsection is that the allowances in relation to travel for business pertaining to, or required by, the duties of the office of the Inspector-General are paid in accordance with tier 2 of the Official Travel Determination.

Section 6 - Documents and information to accompany request for protection of disclosure

This section applies to a request received by the Inspector-General from an intended discloser of information, pursuant to section 54 of the Act, that their identifying information be protected as confidential. This section prescribes, for the purposes of paragraph 54(2)(d) of the Act, the documents and information which must accompany such a request from a discloser that their identifying information be protected as confidential.

This section provides that such a request must be accompanied by the following: 

• documents or information that provide proof of the individual's identity;
• a statement that describes the nature of the detriment the discloser believes would, or is likely to, result to the individual if identifying information about them is disclosed and reasons for this belief; and
• documents or information providing evidence of the circumstances of the discloser relevant to the above statement.

The provision of such documents and information is necessary first to allow the Inspector-General to verify the identity of the individual making the request. Second, this information is essential for the Inspector-General to be able to give due regard to the matters prescribed in paragraph 54(3)(b) of the Act, and to understand why the disclosure of the identifying information may result in detriment to that individual, the form and severity of the detriment that could arise, and the likelihood of that occurring.

For example, if an individual requests that their identifying information be protected as confidential before disclosing information obtained during the course of their employment with a particular entity, it would be reasonable that the Inspector-General verify the individual's identity, confirm that they are employed by that entity, and details of their employment, to inform further consideration of whether it was appropriate to maintain the discloser's identity as confidential.

It would then allow the Inspector-General to understand the nature of the information the individual proposed to disclose, establish a connection between that information and the individual's identity, how disclosure of that information would or could result in detriment, and what the likelihood and severity of the detriment would or could be. It may, for example, allow the Inspector-General to conclude that if the particular information and the individual's identifying information were disclosed, their employer would, or may be likely to, determine that he or she provided information to assist the Inspector-General and decide to take some form of reprisal (e.g. having their employment terminated) in the absence of confidentiality protection. 

ATTACHMENT B

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 Regulations 2023

The Inspector-General of Aged Care Regulations 2023 (Regulations) 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 legislative instrument

The Regulations prescribe the remuneration and travel allowances payable to the Inspector-General of Aged Care (Inspector-General) if no determination made by the Remuneration Tribunal is in operation. The Regulations also prescribe the information which must accompany a request made to the Inspector-General that a discloser's identifying information be protected as confidential.

Human Rights implications

The Regulations engage the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR).

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. This right may be subject to permissible limitations where those limitations are lawful and are not arbitrary. In order for limitations not to be arbitrary, they must be reasonable, necessary and proportionate to achieve a legitimate objective.

Section 6 of the Regulations contains provisions which may operate to limit the right to privacy. Specifically, section 6 prescribes the information that must be included in a request for a person's identifying information to be protected as confidential in accordance with section 54 of the Inspector-General of Aged Care Act 2023 (Act). This includes information relating to the identity and personal circumstances of the individual.

The collection of the prescribed information is necessary to enable the
Inspector-General to accept a request for an individual's identity to be protected as confidential. This is because the Inspector-General must be able to verify the identity of an individual seeking protection of their identifying information as confidential. The provision of these documents and information is also essential to enable the Inspector-General to give due regard to the matters prescribed in paragraph 54(3)(b) of the Act. To the extent that the Regulations limit the right to privacy, this is a legitimate objective that is intended to promote human rights, including their right to privacy.

The limits on an individual's right to privacy imposed by the Regulations are not arbitrary and are reasonable and proportionate. The Regulations only require an individual to provide information that is necessary to allow the Inspector-General to understand why the disclosure of identifying information may result in detriment to that individual, the form and severity of the detriment that could arise, and the likelihood of that occurring.

Conclusion

The Regulations are compatible with human rights. To the extent that the Regulations may limit the right to privacy, those limitations are in pursuit of legitimate objectives, and in a way that is reasonable, necessary and proportionate.   

Anika Wells

Minister for Aged Care