Janet Rice (Victoria, Australian Greens) Share this | Hansard source

Yes, and I think it is important information for the chamber and all of the advocates and organisations who are listening and who are very concerned about this. Yes, given the briefing I'm willing to put on hold our concerns about how that hierarchy works. Initially, I was proposing to amend the legislation to remove all of schedule 9 and I have changed from that to now only addressing the area that I want to go on to now. Okay, we've got the quality-of-care principles, we've got the hierarchy of decision-makers, but then if aged-care providers have followed all of this, they are given immunity from prosecution if things go wrong and if harm is still caused despite having gone through the quality-of-care principles and complied with those and gone through the hierarchy of decision-makers.

I want to know, first, what the rationale is around the immunity from prosecution. Again, in briefings it's been very unclear, and no-one seems to have a good idea as to how many cases you'd be talking about and the significance of offering immunity from prosecution. But offering immunity from prosecution is a really significant stripping away of rights It's not something that should be done lightly at all, and I have yet to be given any evidence that this is needed. In particular, I note the comments by the Parliamentary Joint Committee on Human Rights in their report on this bill earlier this year, where they said:

Any limitation on a right must be shown to be aimed at achieving a legitimate objective. A legitimate objective is one that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the rights in question. While addressing gaps in legislation and ensuring consistency in consent arrangements would appear to be an important aim, it is not clear that the measure addresses a pressing and substantial concern as required to constitute a legitimate objective for the purposes of international human rights law. It is not clear why providing a blanket immunity is necessary, noting that seeking an outcome regarded as desirable or convenient, such as alleviating fears of prosecution, is, in and of itself, unlikely to be sufficient to constitute a legitimate objective.

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Furthermore, by depriving care recipients who are deemed to lack capacity the ability to pursue a remedy for any violation of their human rights arising from the use of restrictive practices, the measure has implications on the right to an effective remedy.

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By granting immunity from any civil and criminal liability, care recipients who are denied legal capacity do not appear to have access to an effective remedy for any violation of their rights arising from the use of a restrictive practice against them.

What is the rationale for taking what's basically a sledgehammer—using immunity from prosecution in these circumstances?