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

I have some questions about the bill that I want to ask prior to moving my amendment. The Australian Greens, as indicated by our vote on the second reading question just then, support this bill overall. We think it includes some important steps forward in aged care in Australia. But we've got three areas of concern I want to ask some questions about. The first is the availability of allied health in aged care, particularly physiotherapy, under the new funding instrument, the AN-ACC. The second is issues we've got with the transparency of the findings of the independent pricing authority. And the third area I want to ask some questions about is schedule 9, about restrictive practices.

Starting off with allied health: I want to read out some of an email I received on Friday from Alwyn Blayse, the CEO and principal physiotherapist of the Allied Aged Care health group, who presented to the Senate inquiry on the previous version of this bill under the previous government late last year. What Mr Blayse said to me on Friday was that Labor is ignoring the concerns of allied health that they recognised in the Senate hearing of November 2021.

He said, 'Sadly, all of those predictions I and others made about the future of allied health in our submission have come true. Residents are being claimed for pain treatments not even occurring, and I've got proof, and removed from treatment for economic reasons. Homes have cut hours of allied health all over the country and providers like us in regional areas are facing impending job losses.'

He continued, 'My team and I are doing our best to avoid and bring staff to work in other areas but we want to stay in aged care. We can't, though, as providers are cutting our lists, not paying us and cancelling contracts, using any flimsy excuse they can. And I can share detailed emails on this and that refer to AN-ACC as the reason.' He gives information from various providers and others: 'Helping Homes—read between the lines that allied health isn't required. So cut it and use cheaper wellness and lifestyle instead, which risks unqualified staff treating frail people with hot packs and exercise. They aren't even insured or registered to do this.'

Mr Blayse continues, 'This isn't even the top of the iceberg: 23,000 veterans in aged care won't be looked after. You should see the waffling and buck-passing answers I get from the department of health and the Department of Veterans' Affairs, simply asking if veterans would be able to have treatment under the AN-ACC.'

So my question is: what are we going to be doing about these very serious concerns that allied health providers, particularly physiotherapists, have about this current bill?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Thank you, Senator Rice, for the question about how allied health will operate under the new model, the AN-ACC model.

Residential aged-care providers are funded for and required to provide allied health services to residents in accordance with their obligations under the Aged Care Act 1997 and the associated quality standards. The Australian National Aged Care Classification removes the inbuilt incentives that exist within the ACFI to deliver specific allied health treatment, such as massages for pain management, that are not necessarily the most clinically appropriate or effective approaches for some residents.

This allows allied health professionals more freedom to provide the best targeted treatments that directly benefit the individual, consistent with their individual care plan—for example, treating pain through an exercise program. Existing ACFI funding, which includes funding for an allied healthcare provision, will be rolled into the AN-ACC funding allocation.

The 2021 StewartBrown survey identified that providers currently spend approximately four per cent of their care funding on allied health or approximately $400 million. Under AN-ACC this equates to approximately $700 million of the care funding that will be provided in 2022-23. Furthermore, the 2021 StewartBrown survey also identified that providers currently spend approximately three per cent of their care funding on lifestyle, approximately $300 million, and under AN-ACC this equates to proximately $550 million of the care funding that will be provided in 2022-23.

From 2020 to 2021, and moving to quarterly from 1 July 2022, more detailed expenditure information will be collected from aged-care providers, including staffing costs and direct-care hours delivered across a range of staffing types, including allied health. This will give visibility over the use of allied health services during and following the transition to AN-ACC, enabling the government to respond as necessary. I hope that answers your question.

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

Thanks, Minister. Sadly it doesn't, because it doesn't give certainty to the physiotherapists as per Mr Blayse's concerns of having their contracts cut as of now. It will take some time before we have that transparency to show whether or not the physiotherapy is continuing to be provided.

The evidence, certainly, that was presented to our Senate committee and what Mr Blayse has followed up on with his email, as of Friday, is that physiotherapy services are being cut. So what certainty can you give to physiotherapists and other allied health providers in the interim, before we have the extra transparency information and before there may, indeed, be further modifications under the new aged-care legislation that would make sure that all residents get the allied health services they need?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

R (—) (): Thank you, Senator Rice. I think the answer—and I did cover it in that earlier question. There will be some changes but there's extra resourcing going in and extra flexibility, and decisions will be made on the needs of particular residents or residents' individual needs. If you're getting advice that providers are making decisions about what services will be offered, I'm not in a position to argue with that. But the position is, as outlined in my earlier answer, that there is additional resourcing going in and additional flexibility about how that resourcing is used to match the needs of individual residents, whether that be physiotherapy or some other type of allied health care that's required. I don't think it's fair to say that resourcing would be reduced, but certainly changes may be made as to the type of therapy or allied healthcare service that residents might receive based on their individual needs.

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

I certainly hope that you're correct, but there is grave concern from the allied health sector, as of now, about the allied health services that residents in aged-care facilities need not being provided. At this stage, I think it is going to be a situation where we're waiting. I would have liked to have seen some more certainty being given to these allied health providers, but it sounds like you're not able to give me that certainty.

I want to move on to some questions about schedule 8—the independent pricing authority. We've just been talking about further transparency, so that the information's on the table about what money is being spent in the aged-care sector. One of your key election commitments was to increase transparency in the aged-care sector. What I want to know is why you haven't made it a requirement that the Independent Health and Aged Care Pricing Authority publish its findings, rather than leaving it to the discretion of the government.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Just to finish off on that final question in the area that you were asking about in allied health: I would say that, from the government's point of view, we acknowledge that concerns have been raised and we are actively engaging with the sector, and we'll continue to do so during the transition to the new arrangements.

In relation to your question, Senator Rice, about the Independent Health and Aged Care Pricing Authority, both of the aged-care amendment bills currently before the parliament will contribute to increased transparency in the aged-care sector. The provisions in this bill ensure that the parliament and the public will have visibility of the work of the Independent Health and Aged Care Pricing Authority. The pricing authority will independently and transparently advise on aged-care pricing, supporting the transparent and evidence based assessment of the costs of delivering aged care to older Australians.

Schedule 8 of the bill specifically provides for the pricing authority to report annually to the parliament its healthcare costing and pricing advice. This is not discretionary. That advice will also be the result of an extensive annual public consultation and fact-finding process. These arrangements will enhance community confidence in aged care and the funding allocated to aged care. The government remains accountable to the community for the expenditure of resources across health services, including aged-care services. As a result, having considered the pricing authority's advice, the government will continue to determine aged-care prices through a legislative instrument.

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

Thank you. I'm sorry; I got distracted with sorting out our logistics here. You're saying that, yes, the government will retain that decision-making process. But why, as part of that, won't you commit to actually publishing the findings of the Independent Health and Aged Care Pricing Authority? Will you commit to making the pricing authority's findings public?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Yes. I did say earlier in my comments that it would be reported annually to the parliament.

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

Thank you. I'm sorry I missed that amongst all of the things going on here. I want to move onto schedule 9—restrictive practices—which is one of the biggest areas of concern that many advocacy groups have raised with me. The concerns with schedule 9 are about both the hierarchy of decision-makers in order to authorise restrictive practices and the immunity from prosecution. As we know, the issue of restrictive practices was a massive issue that was covered in the royal commission, the use of physical and chemical restraints, and the royal commission made some very strong recommendations about reducing the amount of restrictive practices. We also have the evidence that since the royal commission in fact the use of restrictive practices has not decreased, and the data is showing that there has continued to be an unacceptably high use of physical and chemical restraints.

I've certainly been having quite a lot of communication with the minister's office about schedule 9 and about who gets to decide whether restrictive practices are going to be put in place. As I understand it, there is going to be subordinate legislation that will be put in place that will outline that hierarchy of decision-makers and quality-of-care principles. My question is, first, we are discussing this legislation now, but those quality-of-care principles and the hierarchy of subordinate decision-makers are not yet public, so I want to know: when are you going to make public those quality-of-care principles and the hierarchy of subordinate decision-makers?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Thank you. I'm just getting some wise counsel before I jump to my feet. On the quality-of-care principles, an exposure draft of the amendments to the quality-of-care principles is expected to be made publicly available imminently, so very soon. Publication is intended to assist with sector preparedness and is also aimed to alleviate any concerns regarding the proposed immunity provision, as it will confirm how the immunity is proposed to be limited. In relation to the of subordinate decision-makers in the quality-of-care principles, the answer there is the same: it will be released very soon. I can talk a bit about the hierarchy of decision-makers, if you want, but the answer to your question is: very soon.

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

If you were able to share some more information about the hierarchy of decision-makers that would be helpful.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I led into that one, so I'm not sure I'm going to tell you anything that you might not be already be aware of. But let me have a crack. Where an individual cannot provide informed consent to restrictive practices, it's considered that the person who knows the person best be identified as someone to consent to the specialised care of their loved one. The amendments in schedule 9 create a pathway for the quality-of-care principles contained in subordinate legislation to establish a hierarchy of substitute decision-makers from a person's partner to family and friends with a close connection to for the person. It will also be possible for the person, where they have capacity, to nominate a person to take on the role of substitute decision-maker for restrictive practices in the event that they lose capacity. But I understand you have had a briefing, Senator Rice, so that's probably information that's for the chamber rather than for you.

Janet Rice (Victoria, Australian Greens) Share this | Link to 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.

…   …   …

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.

…   …   …

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?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I would say it's not correct to say it's a blanket immunity that is given in this area. If aged-care workers have utilised restrictive practices where they are unnecessary, they will not be protected from prosecution. This has been widely misunderstood and misrepresented. The immunity provision does not give general immunity where restrictive practices are used; it only protects people where all of the strong legal requirements around using restrictive practices are strictly followed.

Schedule 9 of the bill has to be viewed in the context of the whole scheme that governs the use of restrictive practices in aged care. It is included in the bill as a temporary measure, to clarify requirements in relation to consent to the use of restrictive practices, until the matter can be revisited as part of the new Aged Care Act in 2023. It addresses a gap between Commonwealth legislation and state and territory guardianship and consent laws, a gap which has the potential to prevent restrictive practices being authorised, even when required to prevent harm to aged-care residents. So, without it, harm to older Australians could occur.

The bill authorises new persons and bodies to consent to restrictive practices who would not otherwise be authorised under state and territory law. It also includes an immunity provision to cover these circumstances. But immunity from civil or criminal liability only applies where consent is provided by an authorised person and where these practices are used consistently with the principles—that is, where restrictive practices are used as a last resort and only to the extent that is necessary, for the shortest time and in the least restrictive form, and to prevent harm to the care recipient. Where there are state and territory laws on restrictive practices, that legislation also still applies.

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

Thanks, Minister. A lot of what you read out there in terms of addressing the gap is covered in the first part of schedule 9, and didn't address why you need to have the immunity from prosecution. It's the Quality of Care Principles and the hierarchy of decision-making—yes, that sets out covering the gap that's not currently covered in state and territory laws. But, once again, that's not giving me a rationale. After all of these processes are followed, it is still possible that harm is done. It is still possible when the boxes have been ticked. But the determination of what is necessary may be questionable. There could be a case where people say, 'Okay, you've ticked all the boxes,' but, still, harm was done by the use of restrictive practices.

The Australian Lawyers Alliance today in a media statement called upon us in the Senate to remove this clause from the bill, saying:

Like the rest of the community, aged care residents must retain the right to seek justice for a wrongdoing …

The current aged care bill includes a clause that will unfairly strip legal rights away from aged care residents in situations involving the use of restrictive practices. It was not a recommendation of the Royal Commission nor of the Commonwealth in its response to the Royal Commission's recommendations.

…   …   …

Immunity removes the basic legal and human rights of residents which has serious—and unprecedented—social, policy, legal and human rights consequences …

Providing one particular sector of the business community with immunity from criminal charges, which can result in penalties of up to 10 years imprisonment, and civil claims in return for compliance with regulations made under an act of parliament signals a new and serious blow to upholding the rule of law.

Offering immunity to commercial businesses is unprecedented. Many aged care providers are 'for-profit' and some are publicly listed companies.

Again, I'd like you to go to the rationale as to why having immunity from prosecution was necessary. Once you've got all of these guidelines and this hierarchy in place and you're requiring the aged-care providers to make sure that they've done all of their due diligence on why restrictive practices are needed—okay, we can accept that. But, once that's occurred, why does somebody, having gone through that, need to have immunity from prosecution?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

nator GALLAGHER (—) (): Well, I would say that this is being used in this bill to, as I said, clarify requirements in relation to consent to use restrictive practices, and it will be further looked at in the Aged Care Act.

In terms of the rights and protections for aged-care residents themselves, that's where the quality of care and the hierarchy document, hierarchy of decision—sorry, I'm looking for the correct language. That's where those two principles provide the protection for aged-care residents. But I think you do have to accept that, when you have met all of the requirements through the processes outlined earlier in this debate and restrictive practices are required, when you have done the right thing, when you've followed the law—certainly, for those involved in those decisions and the people providing care, why should they be prosecuted after they've followed, essentially, the law that's been put in place to oversight these arrangements? If they're not used properly and if it's not used in the way that the legislation provides—so, if restrictive practices are used where unnecessary or they haven't followed the correct procedure—they'll not be protected from prosecution. But, in the event that they have and then they've had to make that decision, there is a strong argument to protect them from prosecution for the act that they've had to do in relation to keeping people safe in a facility.

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

Thanks, Minister. You say there's a strong argument. That's not what the Parliamentary Joint Committee on Human Rights felt. They felt that granting immunity from any civil or criminal liability means care recipients who are denied legal capacity do not appear to have access to an effective remedy for any violation of their rights. Basically, immunity from prosecution is such a significant thing, and it seems to me that it's not needed in this case. Indeed, if aged-care providers have followed all of the provisions they need to, then they're not going to be prosecuted. Why do you need to have immunity from prosecution? The Australian Lawyers Alliance, in their media release today, went on to suggest:

A possible solution is the offer of an indemnity, rather than an immunity. Such a solution would be workable based on the history of claims arising from unlawful restrictive practices in aged care. The number of recorded cases over the last 25 years is probably as little as half a dozen and not all were successful for the complainant.

They note:

There are previous examples of such indemnity schemes—most recently the indemnity scheme offered by the former Federal government for health practitioners who may be found liable to pay compensation for serious adverse events suffered by people receiving COVID-19 vaccines.

Has there been any consideration to step back from this offering of immunity and introduce an indemnity scheme, rather than immunity from prosecution?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I have a couple of things there in response. One, I would say to the stakeholders that are arguing for that change: I'm sure that can be put and argued in relation to the new Aged Care Act in 2023, if they believe that is the superior way of doing this. I would say that this only applies where it is inconsistent with state and territory laws—so, again, that narrows it. Again, it's not a blanket free-from-prosecution arrangement; it's where all of the necessary steps of the quality of care and the hierarchy of substitute decision-makers—where all of that has been followed. This is something that I'm advised the Council on the Ageing agrees with.

For anyone who has worked in aged care—and I certainly spent some time in aged care about three years ago—you have to have clear arrangements in place around how these arrangements are used. But there are times when these arrangements do need to be used. They need to be used carefully and in accordance with the law. But where that happens it is reasonable for the staff involved, making those very difficult decisions in very stressful circumstances, to also be given appropriate protection for the decisions that are made when they have followed all the other requirements of the law. And that's the position the government's come to. Whether there's further discussion from stakeholders around how they believe that can be better managed, I'm sure the minister will be very open to those discussions in relation to the aged care act that will be introduced next year.

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

Thanks, Minister. Yes, we agree with you that there are some very important steps that need to be stepped through. As I said, we accept you're putting in place the quality-of-care principles and putting in place that hierarchy of decision-makers where there isn't state and territory legislation. But what I want to put on the record is that, in fact, there is a significant divergence of opinion from stakeholders, and I have had many stakeholders come to me deeply concerned. I've had the Law Council brief me about how significant it is to put in place an immunity from prosecution. They were unwilling to say whether it was something they would come out strongly against because they weren't sure as to just how many cases it would apply to. Nothing that they said to me, nothing that you have said to me today, has given me any reason as to why we should be putting in place an immunity from prosecution.

From a human rights centred approach to aged care, it does not seem to be the appropriate thing to do—to be taking away the human rights of aged-care residents, even if it is only in a very small number of cases and even if it is only in circumstances that are exceptional, where guidelines and hierarchy of decision-makers have been followed and somebody has made the determination that's necessary. We want to still maintain the possibility for people who feel, despite that determination that it was necessary having been put in place, that harm has been done, and to give people the opportunity to have their human rights upheld by allowing a case to be taken against them. Yes, some of the sector support this but many others in the sector don't. I go back to the findings of the joint committee on human rights that basically pointed out to us the significance and the seriousness—which does not seem to be justified, and I've heard no arguments tonight as to why it's justified—as to why we should be giving providers an immunity from prosecution, even if it's only in these particular tightly controlled circumstances.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

This bill that's currently before us almost directly replicates the bill that was in the parliament under the previous government, which was voted on nearly six months ago. Can I say that, as part of that, the previous government was very keen to make sure that the provisions that are contained in this bill were implemented as soon as possible, because we understood the extraordinary importance of these amendments to the aged-care sector and obviously to older Australians who rely on aged care. In that view, at the time, an amendment was moved by then Senator Rex Patrick that required for the provision of a nurse on site 24/7 in all aged-care facilities from 1 October 2022, so I'm keen to understand, in saying that we obviously want to make sure that we move to a position where we are supporting our aged-care facilities and our older Australians in a consistent, responsible and timely manner, why this particular bill, which you sought to amend in March to contain 24/7 nursing care by October 2022, does not contain that particular provision?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I thank Senator Ruston for the question. As the senator knows, that was an amendment by former Senator Patrick. We certainly supported the provision of 24/7 nursing care in aged care, but the government's policy, which will be implemented, was to have those arrangements put in place from 1 July 2023. I would also acknowledge that the bill, as amended, really got stuck because the government wouldn't bring it on in the House for debate in the previous parliament. We supported 24/7, but our election policy was clear that it was 1 July 2023, and that's what we will deliver.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

I'm seeking clarification as to what was the basis and the rationale behind the decision to move on 30 March from a position of 24/7 by 1 October 2022 to the policy decision that was reported a couple of days later and said that it would be 1 July 2023.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I can't speak for why the former government didn't bring the bill on for debate in the House, which would have dealt with that amended bill, but I can tell you that we were keen to support 24/7 nursing care in aged care, which is why we supported that amendment. But our policy, our costings and all of the debate we had in the lead-up to the election were very clear that our policy would start on 1 July 2023.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

The opposition too is very keen to make sure that we see 24/7 nursing care, along with all of the other provisions of the royal commission, in place, and we have certainly been willing to work with those provisions as a holistic package of reforms in response to the royal commission. I'll give you another opportunity to answer. I wasn't talking about 'our' position. I was saying you voted to support 24/7 nurses on 1 October 2022. You subsequently, within a matter of 48 hours, changed that position to 1 July 2023. I'm just keen to understand what the advice was that made you change your mind from it being 1 October 2022 to 1 July 2023?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Thank you. It does feel a bit like we are relitigating debates from previous parliaments and prior to the election. I accept that the committee stage does allow for wide-ranging debate, but it's the question Senator Ruston puts isn't really relevant to the bill that we are debating right now in committee. So I think it's best to say Labor policy, the government's policy, is 1 July 2023. That's what we costed. That was the policy agreed by the Labor caucus. That's the policy we will implement. You will see it in a bill that comes before the parliament shortly.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

I'll reserve my questions to the next bill that comes through, where it is absolutely relevant to that bill. Can you confirm that this bill is actually going to use the AN-ACC model as the mechanism to transition to the aged care royal commission requirement for 16/7 nurses in aged care and 200 minutes of care, of which 40 minutes of care is registered nurse care?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I'm sorry, Senator Ruston; I was getting some expert advice there. My understanding is that it will be dealt with by subordinate legislation under the existing Aged Care Act, that there is already the ability to do that.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Are you in a position to advise the chamber when this subordinate legislation is likely to come forward? The reason I ask this is that the sector has an expectation or previously had an expectation that it would start to receive the change in the AN-ACC funding from 1 October 2022, which would include funding for the 12-month period of transition. We're now sitting here on 2 August 2022. I'm just seeking to understand when this subordinate legislation will be brought forward in order for the funding provisions that the sector expects to be able to be put in place.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I'm advised that it will be made in coming months, and ahead of 1 July 2023, to allow the transition to occur.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Can I seek clarification? Your advisers may be in a better position. My understanding was that there was going to be funding made available through the AN-ACC model for the transition to 16 hours a day, seven days a week, 200 minutes of care, including 40 minutes of registered nurse care, and that those transitional funding arrangements were going to be made available from 1 October 2022 to enable them to be in a position to have that particular provision in place by 1 October 2023. I'm keen to understand how the funding arrangements from this AN-ACC amendment that we're putting in place relates to the provision of that transition funding that the sector is expecting.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

The answer is yes. I understand that you were advised of that today. Is that correct?

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

I'm not quite sure I am understanding. The previous answer to a question was that it was going to be contained in subordinate legislation in relation to these provisions. I'm seeking to understand, to put it bluntly, will the sector be receiving the additional funding that has been provided for under the AN-ACC model to enable them to get into a position to transition by October 2023? Is that funding going to start to flow from 1 October 2022?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Yes.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Where is this funding currently located? Is it exactly the same amount of funding that was provided for by the previous government in the 2020-21 budget?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I'm sorry, Senator Ruston; I think you had two parts to your question. One of them was, 'Where is the funding?' I think you said. And the other was, 'Is it the same as what was provided under the former government?' The answer to that is yes, it is there, as you had allocated in the 2022-23 budget.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

In the previous legislation there were a series of exemptions that were able to be considered. Could you flesh out for me what exemptions are contained within this legislation for aged-care providers or facilities that would enable them to seek an exemption if they were unable, by 2023, to meet the requirements of this particular model?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Senator Ruston, are you asking about exemptions for the 24/7 nursing care?

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

No.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

GALLAGHER (—) (): No, I didn't think so. Could you repeat the exemptions you were seeking under the previous—

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

The exemptions that relate to the 16 hours a day. I mean, we don't even have the subordinate legislation in place. Are you seeking to bring an exemption schedule in with the subordinate legislation as it relates to these arrangements for AN-ACC?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Sorry, Senator Ruston. I am trying to be as helpful as I can. My understanding is no, there are no exemptions and nor were there exemptions under your proposal either.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

So, in the absence of the subordinate legislation, which we have no time line on—I'm not talking about the subordinate legislation as it relates to the second bill; I'm talking to the subordinate legislation that speaks to this bill—how long before the requirement for aged-care providers to be in compliance with the conditions they need to be in compliance with in order to meet their funding agreements for AN-ACC will they see subordinate legislation?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I am advised 'well in advance'—that they will have enough time to see that before the new requirements come in.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Just on a couple of specifics before we move on to allow Senator Rice to find out the outcome of her amendment: in this bill you've removed the requirements for worker screening regulations. I'm just keen to understand who you consulted with on the removal of those regulations.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

The royal commission response bill does not include the worker screening arrangements proposed in schedule 2 to the previous government's bill. This is not, however, because we are shying away from ensuring that aged-care workers meet professional standards and do not engage in inappropriate conduct—to the contrary. The government is committed to implementing a much more comprehensive and robust national registration scheme for personal care workers that is consistent with recommendation 77 of the royal commission as well as the code of conduct which is implemented through this bill. This scheme will include ongoing training, English proficiency and criminal history screening to further professionalise the aged-care workforce. The government is currently exploring options on the best way to implement this scheme to ensure it is robust, operationally effective and, above all, designed to ensure maximum protection for older Australians receiving care. As a result, former schedule 2 has been removed from the royal commission response bill in the interim so that sufficient care and attention can be given to designing the new scheme, which will be delivered as part of the new aged care act.

In practice, these measures will also not be delayed as, while the previous arrangements would have established an aged-care screening database for workers and governing persons, I note that the time frame for commencement was within 24 months following royal assent to the bill. In the meantime, the usual criminal history checks for workers will continue to be required.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Thank you, Senator Gallagher. On that basis, given that you are now seeking for the registration provisions to be contained in the new aged care bill, can you give a guarantee that these provisions, these really important protection provisions for older Australians in aged care, will not be delayed at all as a result of the decision not to include them in this legislation?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Well, as I said, the provisions that the previous government had in place were for the screening database for workers with a time frame to roll in of two years following royal assent. As we are determined to strengthen and build on those provisions, we would be putting them in place as soon as possible within that time frame through the new aged care act.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Can I just get a confirmation? So you, Senator Gallagher, on behalf of the minister, are saying that the worker registration provisions will be in place before they would have been in place had they been contained in this bill, which obviously would have been two years from the royal assent of this bill—bearing in mind this bill could well have been in place six months ago, which means it would only be 18 months? Nonetheless, can you guarantee that they will be in place by then? The other thing I raise is that, in my previous question, I asked you who you had consulted with, and you didn't answer that part of the question.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

My understanding is that the minister consulted with the providers peak body, which supports this approach, and the intention is to have it in place within that time frame.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Could you also advise whether the minister consulted with the workers union around this? If so, what was that advice?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

My understanding is that this was an election commitment by the government as well, so I'm sure that the minister—the shadow minister at the time—consulted widely in the formulation of Labor's election policy. I have no doubt that the shadow minister would have spoken to a lot of people in finalising Labor's policy.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Thank you. On that basis, could you advise when the new aged-care act will be introduced?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

My advice is that it will be introduced next year—2023.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

USTON (—) (): And, obviously, on the basis of your previous statements, you will guarantee that the worker screening provisions and regulations will be included in that act when it's introduced?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

Yes.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Just quickly on the Aboriginal community controlled organisation providers, how many ACCO aged-care providers are currently eligible for the exemption under the '40-member or four board members' current exemption provision?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

How many? I'll see if we've got that information for you, Senator. Approximately 40, I am advised.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Could you then advise how many additional ACCOs will now become eligible due to the expansion of the provision to exemption to ACCOs?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

That figure of 40 includes that, Senator Ruston, I'm advised.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Then, could I take you back a step and ask: how many were provided for under the original exemption, and how many additional ones will be provided for under the new exemption? My question is: how many people have actually been collected by the new exemption that wouldn't have been covered by the old one?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I'm sorry, I don't think we have that information to hand, Senator Ruston. I can see what we can provide, if there is any further update, whilst you go on with your questioning. But, at the moment, we don't have that information. I'll see if I can get a more comprehensive answer.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

On that basis, you may not be able to answer this one either, but I'd just be keen to understand: what was the advice that you received that led you to make the decision to expand the provision in relation to this particular exemption? Who did you consult with in the process of making this change in policy that's included in this particular bill?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

There are two parts to that. There were concerns about requirements for independence on the board. That is one of them. In relation to the other one, did you ask me who was consulted?

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Yes.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

The National Aboriginal Community Controlled Health Organisation, or NACCHO; the National Aboriginal and Torres Strait Islander Ageing and Aged Care Council; consumer and provider sector reference groups; the Council on the Ageing; the Older Persons Advocacy Network, and the Office of the Registrar of Indigenous Corporations were consulted throughout the process of drafting these provisions.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Could you provide advice as to whether all of those organisations supported the expansion of this particular measure?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

My advice is that yes, they did.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Final question from me: were any ACCO providers sanctioned by the regulator in the last 12 months?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I think we might have to take that on notice, Senator Ruston. Yes, we don't have that advice, but I am happy to provide that to you when I get it.

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

I want to move my amendment, amendment No. 1 on sheet 1593.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

We need to follow proper process here, but there are no divisions until 7.30.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

You are correct.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I don't know whether you want to keep talking for a while.

The TEMPORARY CHAIR: Yes, the option is to keep going for a few minutes; otherwise, we will have to defer. I'll confer with the clerk. Yes, we can just keep talking for the next three or four minutes. But we're in the hands of the Senate for what you'd like to do. Senator Roberts.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Would I be able to move my amendment? I don't need to; it's been debated so much!

The TEMPORARY CHAIR: Perhaps if you just ask a question, Senator Roberts.

Minister, why are there no provisions for registered nurses compulsorily to be in attendance?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I thank Senator Roberts for helping us to keep this discussion going. It's because they will be in the next bill, so we'll be bringing them back in the next bill to deliver on the election commitment we took to implement 24/7 nursing care in residential aged care from 1 July 2023.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Senator Ruston touched on this topic, I know, but why wait so long? If you think it's needed, why not get on with the job?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

The bill is currently in the House, but my understanding is that last week the Senate resolved to refer it to a committee for a short inquiry. That means we have to go through that process before it can come here, but the commitment is clear. The election commitment that we made about having 24/7 nursing care in aged care is a really important one. It will be funded in the budget, and it is due to commence on 1 July 2023, which means there is enough time to ensure that it's dealt with through the bill that's currently before the House, on its way to a Senate committee, and then in here for debate.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, how long are you expecting it to be in the House—12 months?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

No. In fact, I think it’s due in the Senate committee for a report by 31 August. The Senate committee is due to report on it to the Senate by 31 August, which would allow for debate, following that, this side of Christmas.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

The date for it, then, Minister—from July to February?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I think anyone would understand that you need time to recruit nurses into residential aged care. The costings we did for our election commitment also had the money flowing from 1 July 2023. If we moved it forward, I think there would be issues about implementation, for sure, but we haven't accounted for that in our figures that we presented to the election. The Prime Minister's repeatedly said that what we said we'd do in the election campaign is what we're going to do in government. That commitment was for registered nurses 24/7 in residential aged care from 1 July 2023. The budget will have that commitment contained in it. The legislation can pass here whenever the Senate is ready to deal with it post the committee inquiry. Providers will have enough time to recruit nurses into residential aged care, and the funding will flow from 1 July.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

When we set a date on our amendment for February, we used one of our advisors, who has extensive experience in the health sector and in the public service. He suggested that February would be entirely appropriate. So, why stall it beyond February? In other words, it would be a practical date for aged-care facilities to be able to recruit registered nurses.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I accept that's the advice that One Nation got from its advisors, but our election commitment was from 1 July. It's a big change to implement across the aged-care system, and an important one, but we want to get it right. Our commitment was to have it start from 1 July 2023, and once the legislation gets through the Senate committee that is what the committee will provide for.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

At the moment, we rely on our advisors very much, and yet Mr Albanese—without any consultation initially—wiped 75 per cent of our advisors. We now have 25 per cent back, so we have had 50 per cent gone in a matter of a few weeks. This particular advisor has been very helpful to us, and he could be one of the ones facing the sack. Is that what the government is trying to do, limit our advisors?

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

No, not at all. Those are decisions for Senator Roberts to make about his advisors. I'm not sure it's relevant to this legislation, but I have no doubt all advisors right across the Senate work very hard. I accept that. We rely on them heavily, and I thank them all for their work.

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

I have one last question on Senator Roberts' amendment, which hasn't been moved yet. Labor, when in opposition at the end of last year, joined Senator Rex Patrick and the Greens in supporting Senator Patrick's amendment to get registered nurses 24/7 in aged care from October this year. I know this is the question that Senator Ruston was asking before as to what's changed since then. I'm certainly quite partial to the idea that getting registered nurses in aged care by February is better than by July, given that it's something that we all now accept is really important. I want to know why. Given that we're in July now—and if this bill comes back we could pass this now—it would give aged-care providers some eight months to be recruiting. I don't see why we need to wait until July to get registered nurses 24/7 in aged care as per the second piece of legislation that the government is proposing to introduce.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

ALLAGHER (—) (): I thank Senator Rice for the question—I think I've answered it. Labor's policy, which we took to the campaign, was to implement this commitment from 1 July 2023. That was the commitment we made. The Prime Minister has made it clear we're going to do what we said we'd do. We're going to implement our election commitments.

I accept that others have different positions and different policies that they may have taken to the election, but we're going to implement the one we took, which is 1 July. It will allow for this significant change to occur through the budget, but it will also deal with some of the implementation issues around that and some of the workforce challenges, working with providers to make sure the arrangements are in place from 1 July.

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

Now that it's after 7.30, I move my amendment regarding the immunity from prosecution:

(1) Schedule 9, items 3 and 4, page 140 (line 13) to page 141 (line 11), to be opposed.

To recap, I didn't receive any good rationale as to why there should be immunity from prosecution for restrictive practices after they've gone through all of the various hoops. Yes, let's make sure that the provisions are appropriate, but at the end of the day there does not seem to be any justification for giving immunity from prosecution to providers for those circumstances. My amendment would remove the second half of schedule 9.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

The question before us is that items (3) and (4) of schedule 9 stand as printed. Sorry—one moment. Just to be clear to the chamber: if you support retaining these items in the bill, you vote yes; if you are, obviously, the opposite, you vote no. The question is that items 3 and 4 of schedule 9 stand as printed.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

I believe Senator Roberts is seeking the call to move amendments.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Thank you, Chair. I have tabled amendments to the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022. Senator Rex Patrick first moved these amendments, and I acknowledge and appreciate his work. Our amendments directly contribute to improved safety and quality for our respected seniors in aged-care facilities, providing for 24 hours a day, seven days a week nursing support on site from a registered nurse. So many problems were identified in the royal commission's report, and this addresses a significant gap in care and response times that will help to alleviate the concerns of many aged-care residents and their families.

We recognise that remote and regional areas have problems in attracting and retaining a skilled workforce. Accordingly, we have provided for exemptions subject to reasonable conditions. I commend these amendments.

The TEMPORARY CHAIR: The question is that the amendments be agreed to.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

I move:

That further consideration of the bill be an order of the day for the next day of sitting.

Question agreed to.