The Burden of Compliance — Getting the Balance Right in Aged Care Legislation — Senate Debate Bills

I, too, rise to make some remarks on the Inspector-General of Aged Care Bill 2023 and the Inspector-General of Aged Care (Consequential and Transitional Provisions) Bill 2023, and I flag upfront that I, like the coalition, will be supporting these bills.

As I make these comments, though, I do note that, through my entire time in the parliament, both in the other place and here, aged care has been a consistent thread, although much of my time has been characterised by involvement in national security affairs and, in particular, defence.

In fact, in preparing to make these remarks, I went back to the Hansard from 2004. One of my very first contributions in the other place was about the regional communities in Wakefield. I particularly mentioned the communities in places like Balaklava, and we had Mill Court in Hamley Bridge, and in Mallala people like Ian Jenkin was the chair of the community hospital, which had an aged-care wing.

I came out of the military to become the member for Wakefield.

In the military we had very good health care and everything was provided and laid on. I have to say it was a real eye-opener to work in regional communities where the hospital was funded by fundraising events and the aged-care home was funded and staffed by locals, albeit the aged care had some Commonwealth funding for beds. But much of the control and investment, both financial and emotional, was provided by the community because they were caring for their families in those locations.

The reason I highlight that and go back to that thread is that through much of my time in the parliament, from 2004 through to the present, aged care has arisen as an issue. I recognise that circumstances for both our ageing Australians and the providers who look after them are changing consistently, particularly as more people choose home-care packages, so residential aged care is somewhere where people with more acute needs often go.

But community expectations also change.

I look at some of these country homes where it was wives, sisters and daughters who were providing care—and perhaps they might have a couple of professionals on the staff as well. Their boards had a constant battle to make sure they met compliance requirements to have people suitably qualified to care. In most cases they were also significantly supported by members of the community who worked there.

In fact, in Mallala’s case, I think they were the largest provider in the town. Some 52 people in the town were employed by the combined hospital and aged-care unit.

What that means is that, as expectations around care change and we see the responses to various issues that come up that put in place more and more compliance options, we have to ask the question: does compliance represent assurance to the families that their loved ones are being cared for, or does it represent a burden that drives good people and good operators out of the system, particularly in regional areas, which actually then removes the ability of families to have their older family members remain in the location?

That has been an issue that’s been ongoing for many years, and many of the people who made contributions here today have highlighted similar concerns around the burden of compliance. I have seen, even in the electorate of Wakefield that I represented, some fantastic homes: some not for profit, some for profit and privately run. Some were just awesome and some really left a fair bit to be desired. Clearly, there is a need for standards and for checking and compliance, but that balance has to be right, such that people can afford to run those homes.

This bill is an outcome of the royal commission which was announced in September 2018, and the trigger that led to the royal commission finally being announced by then Prime Minister Morrison, I think about three weeks into the job, was Oakden in South Australia, a state-run facility. It was one of those places where the treatment was pretty awful. Whilst it was the trigger, it was not the only home, and over years, under both sides of politics, there have been aged-care facilities where additional support and additional measures have been required. Again, I’m not convinced that we’ve always got it right in terms of the application of compliance and burden versus support and help for staff in terms of qualification ratios et cetera, but as we look at this bill I do think it’s important to look at the context of the circumstance that kicked it off.

Some people say, ‘You just need to spend more money,’ but if I look back at 2017-18, funding for aged care, as announced at the time, was then at record levels. Aged-care expenditure was estimated to reach $18.6 billion, growing to $23.6 billion over the five years from that point. So funding alone is not the answer. It’s obviously needed, but it alone is not the answer, because, despite that record funding, we still had failures in the system.

At the time, that transition to home places was well and truly underway. The demand was high, and the government had announced that it’d spent some $1.6 billion creating 20,000 high-needs home-care packages, as well as $50 million being provided for dementia-specific programs. A whole raft of changes was occurring at the time. But it was the revelations in May 2017 about the Oakden facility that triggered the royal commission.

There was a huge amount happening at the time, with that in conjunction with the Review of National Aged Care Quality Regulatory Processes, the legislative review of aged care and the More Choices for a Longer Life Package that led to a bunch of measures in 2018, the legislation around new aged-care quality standards, the first upgrade of standards in nearly 20 years that occurred in 2018. The royal commission was put in place, and the evidence was very clear that this was not one sector alone, it was not one part, whether for-profit large or small, regional or metropolitan. There were a range of issues across a range of facilities, and so the royal commission was commissioned at that time.

This bill flows directly out of recommendation 12 from the aged-care royal commission, and recommendation 12 went to the establishment of an inspector-general of aged care. Reading from the recommendation in the report, it says:

The Australian Government should establish an independent office of the Inspector-General of Aged Care to investigate, monitor and report on the administration and governance of the aged care system. This should be done by:

a. conducting reviews on its own motion and/or at the request of the System Governor or the Minister or Parliament to ensure the quality and safety of aged care

b. reviewing regulator decisions on a systematic basis to ensure regulator integrity and performance

c. reviewing the performance of functions by the System Governor, the Quality Regulator, the Prudential Regulator and the Pricing Authority

d. monitoring the adequacy of aged care data collection and analysis

e. monitoring the implementation of the reforms recommended by the Royal Commission, and

f. reporting annually to the Australian Parliament on systemic issues in the aged care system and the extent to which the aged care system attains the objects of the new Act.

Those who’ve listened to my speeches in this place before will know that I inevitably come back to the aviation industry, which was my actually background. Whether I’m talking about financial services or, in this case, aged care, I welcome the focus of the royal commission here on the systemic factors, because one of the key lessons that the aviation sector has brought not only to aviation but to medicine and other places is that, if you want to drive good outcomes, you actually need to understand the system.

You need to understand the incentives, understand the things that motivate actions and investment by people.

I think one of the ways you can alleviate the compliance burden on individual homes and staff is by making sure that, at a systems level, your settings are right, your incentives are right. That’s so good operators are free to operate and provide the services with the focused and detailed care that they wish to provide, but the system is such that those who are failing will be recognised or identified early, and either remedial or punitive action will be taken either to lift the care or to remove people from the care if it’s not capable of being remediated.

Often that compliance burden on the individual, whether you’re talking about an airline, a small operator or an aged-care home, will be so much easier to actually achieve if the systemic construct and monitoring are right. So I welcome the fact that there is in this recommendation such a focus on the systemic issues.

The key points of this bill are to establish the inspector-general of aged care, the office, with functions to monitor, investigate and report on the Commonwealth’s administration of the aged-care system. I guess that—other than the state-run facilities—is the pinnacle of the system that we are talking about. It includes independent reviews to identify and investigate systemic issues, making recommendations to the Commonwealth for improvement. This role is one of seven institutions that the Royal Commission into Aged Care Quality and Safety recommended to improve the governance of aged care.

I must confess I’m not a fan of big government, and seven institutions seems like an awful lot of overhead, but, given we are dealing with some of the most frail and vulnerable in our community, if the institutions actually help to get the system right then I will continue to support that.

Importantly, the Community Affairs Legislation Committee have considered this bill, and, as well as the Senate Standing Committee for the Scrutiny of Bills, they indicated their support for it. But I’m hoping that, during the committee stage of this bill, we will get some answers to some of the concerns they raised, particularly on the protection from civil liability.

The committee had concerns regarding the exclusions from civil liability contained in the IGAC bill. Clause 58 in particular provides that if a person discloses information in accordance with the requirements set out in clause 57, that person is not subject to any civil, criminal or administrative liability or subject to a contractual or other remedy.

The committee said this provision removes any common law right to bring an action to enforce legal rights unless it can be demonstrated that the person knowingly made a false or misleading statement. The committee expects that if a bill seeks to provide immunity from civil liability this should be soundly justified. I’m assuming the staff over there from the appropriate department will be getting ready to brief the minister during the committee stage, and I’m hoping we’ll get some clarity around that concern of the committee.

The evidential burden of proof was another point. In order to rely on the exemptions set out in subclause 23(2), the disclosure of a draft report or its components, or clause 64, the authorisation of the disclosure of information by an entrusted person, the defendant bears the evidential burden of proof.

The IGAC bill also provides that if a person wishes to rely on the protection set out in clause 58, then that person bears the evidential burden of proof. The committee made the point that it’s ordinarily the duty of the prosecution to prove all elements of an offence and expressed concerns regarding the reversal of the evidential burden.

Again, I look forward to some clarification during the committee stage of the bill.

As I indicated, I will be supporting this bill. Aged care is a sector that has looked after many Australians, including my own parents, but in some cases it has let them down.

It is a complex area. It is a challenging area for providers. It is a challenging area for families seeking to get their family members into the area. The coalition, having launched this royal commission, supports recommendation 12 and the establishment of this inspector-general, and I will be supporting the bill.