Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The committee is considering the Aged Care Bill 2024. The question before the committee is that the bill, as amended, be agreed to.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

by leave—On behalf of Senator Allman-Payne, I move amendments (1) to (10) on sheet 3110 together:

(1) Heading to subclause 179(3), page 186 (line 23), omit "Serious", substitute "Civil penalty provisionserious".

(2) Clause 179, page 187 (after line 4), after subclause 179(3), insert:

Strict liability offence serious failures

(3A) A registered provider commits an offence of strict liability if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct that does not comply with the duty; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—150 penalty units; or

(b) in the case of an offence committed by a registered provider other than an individual—1,000 penalty units.

(3) Heading to subclause 179(5), page 187 (line 12), omit "Death", substitute "Civil penalty provisiondeath".

(4) Clause 179, page 187 (after line 25), at the end of clause 179, add:

Strict liability offence death or serious injury or illness

(6) A registered provider commits an offence of strict liability if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—500 penalty units; or

(b) in the case of an offence committed by a registered provider other than an individual—4,800 penalty units.

Fault-based offence death or serious injury or illness

(7) A registered provider commits an offence if:

(a) the provider has a duty under subsection (1); and

(b) the provider engages in conduct; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty is owed.

Penalty:

(a) in the case of an offence committed by a registered provider that is an individual—1,000 penalty units or 5 years imprisonment or both; or

(b) in the case of an offence committed by a registered provider other than an individual—9,500 penalty units.

General defence of reasonable excuse

(8) Subsection (3A), (6) or (7) does not apply if the registered provider has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal Code).

(5) Clause 180, page 188 (lines 19 to 22), omit subclause 180(3), substitute:

(3) A person may be found liable to pay a civil penalty under this Act, or be convicted or found guilty of an offence against a provision of this Act, relating to a duty under this section whether or not the registered provider has been found liable to pay a civil penalty under section 179, or been convicted or found guilty of an offence against section 179.

(6) Heading to subclause 180(4), page 188 (line 23), omit "Serious", substitute "Civil penalty provisionserious".

(7) Clause 180, page 188 (after line 30), after subclause 180(4), insert:

Strict liability offence serious failures

(4A) A person commits an offence of strict liability if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct that does not comply with the duty; and

(c) the conduct amounts to a serious failure by the provider to comply with the duty.

Penalty: 150 penalty units.

(8) Heading to subclause 189(6), page 189 (line 4), omit "Death", substitute "Civil penalty provisiondeath".

(9) Clause 180, page 189 (after line 15), at the end of clause 180, add:

Strict liability offence death or serious injury or illness

(7) A person commits an offence of strict liability if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct amounts to a serious failure by the person to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.

Penalty: 500 penalty units.

Fault-based offence death or serious injury or illness

(8) A person commits an offence if:

(a) the person has a duty under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct amounts to a serious failure by the person to comply with the duty; and

(d) the conduct results in the death of, or serious injury to, or illness of, an individual to whom the duty in section 179 is owed by the registered provider.

Penalty: 1,000 penalty units or 5 years imprisonment or both.

General defence of reasonable excuse

(9) Subsection (4A), (7) or (8) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (9) (see subsection 13.3(3) of the Criminal Code).

(10) Clause 186, page 191 (line 7), after "subsection 179(3) or (5)", insert "or is found guilty of an offence against subsection 179(3A), (6) or (7)".

The Greens have long called for and supported a shift to a rights based framework. Advocates and older people have made clear that older people must have rights that are not only unequivocally clear but also enforceable. It is a key concern for the Greens and many others that the rights within this bill remain aspirational for providers. The removal of the criminal penalties has been a significant problem for many participants and advocates. This has been bitterly disappointing for participants and their loved ones seeking justice, and we strongly urge the government to support the inclusion of criminal penalties in the bill to signal to participants that their rights are enforceable and that they can seek justice.

It is a wonderful move that we are moving to a rights based framework but it makes a mockery of that move if those rights are not enforceable. We understand that the reason that part was taken out was to please the Liberals, and what an appalling outcome.

Question negatived.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Minister, I wanted to pick up with a line of questioning from Senator Ruston this morning. As I understand it, if I heard correctly, you talked about the enabling ICT changes that need to occur to implement this system to have it operational. Can you just confirm that you said that it would be delivered by 1 July next year and that the implementation is critical for this scheme to take effect?

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

Sorry, Senator Reynolds. What was the second part of your question?

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

REYNOLDS () (): The first one was about the criticality of the IT system to the effective implementation of these reforms, and the second one was about your having said that all the system changes will be implemented by 1 July next year.

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

I don't have the budget papers in front of me, but I believe that it was phased over the forward estimates in terms of expenditure. But the ICT changes that will need to be in place for 1 July 2025 will be in place.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Thank you, Minister. So they will be in place by 1 July. Is that the changes required by the My Aged Care system—that is, Health and Services Australia—or is that also all of the providers, because obviously the providers need to have their systems updated as well?

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

We did cover this this morning at some length. That is just for the government's internal systems. In terms of the providers, there is a small grant round of $10 million, providing grants of $10,000 for those providers in the Support at Home program, who are going to face the majority of the most significant changes. For many of the other providers, including in residential care, we don't believe that there will be significant change, although I know that there are some providers who disagree with that. This is a matter that the transition taskforce no doubt will be considering. It has its first meeting next Thursday, so I imagine things like this will be on the agenda. But, for providers who aren't directly involved with the new Support at Home program, we expect the ICT needs to be minimal. In fact, it's more of a reporting into the system that the government has than requiring a new system for themselves.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Thank you, Minister. Would it be safe to say that these reforms that are in the current legislation can't be implemented until the IT system is in place?

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

Not all of it will be dependent on the IT system. Elements of it will, but not all of it, because there are a whole range of other changes in the legislation that wouldn't be dependent on the IT program being in place. But we are conscious that, for some elements of it, we do need that in place, including for the Support at Home program, and that needs to be in place by 1 July 2025.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Minister, can you describe, then, what elements will be impacted and won't be able to be delivered if the IT system reforms are not in place?

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

The government's program will be to enable registered provider operation under the new act through reforms, including Support at Home, places to people, worker screening and registration, and some of the regulatory framework subsidies and payments. It will also streamline interactions with government through the existing GPMS, service referrals, payments and reporting. So, if we're going to the hypothetical of what would be affected if the system were not in place, I would say that those would be the key areas.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

So, essentially, they're the key elements to be delivered under this policy change. Can I just clarify something that I may have misheard. I have the budget papers here and had a look. In the budget papers for 2024-25 it does say that it was $1.2 billion over five years from 2023-24—last financial year. Did I correctly hear you say that it was $1.5 billion now?

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

No, it's $1.2 billion.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

It is $1.2 billion? Thank you. That's helpful. Also in the budget measures for improving aged-care ICT support, which are, as we know, going to be delivered by Services Australia, the actual delivery is over five years. Can the minister explain why it's over five years, what things are going to be delivered over the next seven months to get it operational by 1 July, and what is the remainder of funding for the forward estimates?

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

I am again advised that all of the features needed to start on 1 July 2025 will be done. I think from memory—I just don't have the budget papers in front of me—that it is frontloaded across the forward estimates. So we expect that upfront build, but then there will be continuing costs—maintenance and otherwise—of the system that you would expect with any large IT program. I'll see if there's any further information. Of the $1.2 billion, $589 million was provided as sustainment funding critical to maintain core ICT systems which are central to the continued operation of the aged-care system. Core ICT includes Aged Care Gateway and the Government Provider Management System, as well as associated business to government, B2G, and the aged-care data warehouse systems. Costs include platform hosting, software licensing, cybersecurity, general operating costs and digital contractors once the current funding expires on 30 June 2024.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

So that is $589 million of the $1.2 billion. If I understand it correctly, that's to maintain and upgrade the core ICT systems. Is that correct? If that's correct, what's the rest of the $1.2 billion being spent on, and when?

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

The rest has been allocated for new or enhanced funding for foundational reform, including the new Aged Care Act, GPMS, B2G and the integration of My Health Record and My Aged Care.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Thank you very much, Minister. That's very interesting. So $600,000 is for systems integration and to provide some of those essential services. You mentioned the integration with My Health Record. Is that correct?

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

Yes.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Is the minister aware of all of the problems that are currently being experienced by My Health Record? It's been the subject of a very damning ANAO report recently. It is significantly behind and has a myriad of issues, if you think of the Commonwealth Procurement Rules and DTR guidelines. Are you aware of that, and what would the impact of that be on this program?

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

Yes, I am aware of it, but, as that matter is not directly relating to the bill that we have before us, I don't have officials or information there, other than to say that the commitment we are giving here, with the investment in funding that we've provided through the budget, is to build the IT system, sustain it and operate it for all of the changes that are entailed in the Aged Care Bill. I would say that My Health Record has been a problem project, it seems, since its inception.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Reynolds—before I go to you, Senator Pocock—do you have much more on this, for the courtesy of Senator Pocock?

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Yes, I do have quite a few questions. Given that this is a key enabler for these legislative changes, I do have quite a lot of questions on this IT system.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Pocock is happy for you to continue, Senator Reynolds. You have the call.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Minister, you mentioned the $589 million for sustainment funding for the current ICT systems. My understanding is that Services Australia are getting the majority of that money to do that sustainment, and my understanding from the budget papers is that it's for sustainment of, and essential enhancements to, the critical aged-care digital systems so they remain legislatively compliant and they can support the implementation from 1 July. My recollection of those systems, from my time as minister, is that a number of them are legacy systems and are not necessarily very reliable—certainly not for the longer term. Which of these five aged-care digital systems is the funding for? What is the funding for each of those systems? I ask that because, if any one of those doesn't work, my understanding is these ICT systems won't work, and this can't be delivered.

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

I covered those off in my last answer. Obviously, we did not come with officials that, essentially, would be required at estimates, and I'm not sure this was interrogated at estimates, which is probably the place where we would have officials available. We've provided you with the budget. We've provided you with the names of the programs that are being continued to be sustained. It is true: there wasn't enough investment in IT systems across the board under the previous government. We're having to deal with a lot of that now. Legacy systems are a problem, which is why, when I first got the bill for this one—which was at $1.2 billion; it was an extraordinary amount of money—it was interrogated to see exactly what it could do. I wish the amount was smaller than it is, but this is what I am advised is necessary to keep systems ongoing and create the new IT framework that supports the implementation of the Aged Care Act.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

You just mentioned, I think, digital contractors. Will the contractors for the two major aspects of this that you mentioned be internal contractors or will the health department or Services Australia be sourcing external contractors? If so, who and for how much of that budget?

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

Again, these are questions that would be more appropriately put to Services Australia or the health department during estimates. I would imagine that it will be a mix. As you know, we've been trying to convert contractors into permanent Public Service jobs, where those jobs are ongoing, but there continue to be requirements, particularly in the IT space, where a contracted arrangement is more appropriate. So my answer to that would be that there will be a mix.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

In relation to the project management for this project, I think it has been underway for, probably, up to 12 months. I understand, from when I've had a look at the documents, that the funding in the 2023-24 budget was for initial project discovery and design. Is that phase now complete? If it's not, that will impact on the timing of delivery of these new systems.

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

I am advised that we're at the gateway review stage of that.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

That's the gateway for discovery and design?

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

Yes—for the overall build.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

That's a different stage. The ICT build and testing is a separate process. The reason I ask about this, Minister, is that this has been, again, ongoing for some time. They were anticipating the legislation, in terms of the build, many months ago. My next series of questions are: If the discovery and design phase is not yet complete, how long will that take after the passage of this legislation? Will the discovery and design phase require regulations? I would anticipate that normally, to determine what goes into the IT systems, it would require the regulations as well as the legislation.

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

I'm thinking back to estimates. My understanding is that everything that's required for the IT system is in the bill, so there are no further legislative requirements.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

That wasn't actually my question. Just to clarify, I think your answer meant that the designers don't need the regulations to design and then test the IT systems—is that correct?

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

You had a question that said, 'Often in builds like this you will have to have further regulation about the IT system.' I'm saying that's not the case. But in terms of what the designers need for the IT system, my understanding is they have everything they need. They know what they need. They know how to build the system. I think the budget allocation was in this year's budget, so obviously, in terms of the budget certainty, this has not been going on for months and months. It has been since the budget was handed down, where that budget certainty was provided. We are in the early stages. They're having the first gateway review. Again, all of the advice to me is that it is on track for the changes to be in place by 1 July next year.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

For the sake of complete clarity, the design of all of the IT system changes that are required to implement this legislation are done, and it doesn't require the regulations that go with this piece of legislation?

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

My understanding is all the planning has been done. We're just going through a gateway review and then further information will be provided to providers by the end of the year.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I move Australian Greens amendment (1) on sheet 3117:

(1) Chapter 4, clauses 190 to 337A, page 195 (line 1) to page 347 (line 17), to be opposed.

This would take out the whole of chapter 4. And while the Greens support the wealthy paying their fair share, opening the door to an expanded user-pays model only risks serving to increase the profits of the private providers that are already robbing older people blind. We have significant concerns this bill, and in particular this part of the bill, takes aged care down a path that it will be very difficult to unwind. Instead of treating aged care as health care, this bill has completely embedded it as a marketplace. Participants and the government will continue to subsidise for-profit aged-care providers, and for this reason we are strongly urging and moving for the removal of chapter 4. I commend this amendment to the chamber.

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

The government won't be supporting this amendment. The public, through tax revenue and other sources of income, provide $39 billion worth of funding or investment into aged care. The Commonwealth will still be, by far, the main contributor to the aged-care system, as it should be, but we believe in the capacity for individuals to make contributions, where they can afford to do so. These are modest contributions and they are heavily means-tested, as they should be, as appropriate, and clinical care and those key features of the health system remain free under all circumstances. So as you say, under those conditions the public should provide the support, but we do believe, in the interests of the sustainability and viability of this sector, there's a need to introduce modest contributions.

This is something that has been discussed and consulted upon, including through the Aged Care Taskforce. It has included providers and consumers, and consumers have been very supportive of the vast majority of this bill. I think we have worked with the opposition carefully to consider impacts on individuals and to make sure the contributions arrangements that are put in place are carefully thought through and that individual's incomes, including those currently in the system, are accommodated and taken care of.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that chapter 4 stand as amended.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

With the Senate failing to support our amendment to insert criminal penalties and the amendment you just voted down to remove chapter 4 from the bill, the Greens can no longer support the passage of this legislation. We are deeply concerned that the parliament is conceding the opportunity for once-in-a-generation reform to the self-interest of for-profit providers at the expense of participants. With the rejection of our amendment to put criminal penalties back into the bill, we have significant concerns about the enforceability of the rights based framework. We've long supported the shift to the rights based framework, but older people, their advocates and their loved ones have been clear that those rights must be unequivocal, clear and enforceable. Aspirational rights do not go anywhere near the heart of the problem in aged care. The operation of Australia's aged-care system as a market means the incentive for providers to profit always trumps the provision of high-quality care. Further, we're worried the bill will usher in a permanent state of expanded means testing and user pays. Instead of treating aged care as health care, we'll turn it into a marketplace. Participants and the government will continue to subsidise for-profit aged-care providers. We cannot risk a two-tiered system that bakes in equality. The elderly are not commodities; they're people. First and foremost, aged care must be universal, and for these reasons we cannot support the passage of the bill. I'll now seek leave to move the last lot of Greens amendments to the bill.

Leave granted.

I move amendments (1) to (5) on sheet 3101 as well as amendments on sheet 3102 to sheet 3104 altogether:

SHEET 3101

(1) Clause 547, page 508 (before line 4), insert:

Internal disclosures

(2) Clause 547, page 508 (line 4), omit "A disclosure", substitute "(1) A disclosure".

(3) Clause 547, page 508 (lines 17 to 19), omit paragraph 547(c), substitute:

(c) the discloser has reasonable grounds to suspect that the information:

(i) indicates that an entity may have contravened a provision of this Act; or

(ii) indicates that an entity may have engaged in conduct covered by subsection (2); or

(iii) if an entity is a body corporate—indicates that a related body corporate of the entity may have engaged in conduct covered by subsection (2); or

(iv) concerns misconduct, or an improper state of affairs or circumstances, in relation to an entity.

(4) Clause 547, page 508 (after line 19), at the end of clause 547, add:

(2) This subsection covers the following conduct:

(a) conduct that constitutes an offence against a law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more;

(b) conduct that represents a danger to the public or an individual who accesses the aged care system;

(c) conduct that is prescribed by the rules.

(3) A disclosure covered by subsection (1) is an internal disclosure.

(4) Subsection (1) does not apply to a disclosure of information to the extent the information disclosed concerns a personal work-related grievance of the discloser.

External disclosures

(5) A disclosure of information (an external disclosure) by an individual (the discloser) qualifies for protection under this section if:

(a) the discloser has previously made an internal disclosure of the information; and

(b) the person to whom the internal disclosure was made:

(i) took no action in relation to the internal disclosure; or

(ii) did not complete an investigation in relation to the internal disclosure before the end of the period of 90 days beginning on the day the internal disclosure was made; or

(iii) completed an investigation in relation to the internal disclosure that resulted in no further action being taken; and

(c) the external disclosure is made to one or more of the following:

(i) a member (however described) of the Parliament of the Commonwealth or a State, or of the legislature of a Territory;

(ii) a person who works in a professional capacity as a journalist; and

(d) the discloser reasonably believes that the external disclosure is in the public interest.

Disclosures to support persons

(6) A disclosure of information by an individual (the discloser) qualifies for protection under this section if:

(a) the disclosure is made to one or more of the following:

(i) an officer or employee of a trade union;

(ii) an independent aged care advocate;

(iii) a legal practitioner; and

(b) the disclosure is made for the purposes of seeking support or advice in relation to the information, or another disclosure relating to the information.

(7) A disclosure of information by an individual (the discloser) qualifies for protection under this section if:

(a) the disclosure is made to a medical practitioner or psychologist; and

(b) the disclosure is made for the purposes of seeking or obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

(5) Clause 550, page 511 (line 3), omit "paragraph 547(c)" substitute "paragraph 547(1)(c)".

_____

SHEET 3102

(1) Page 509 (after line 3), after clause 548, insert:

548A Claims for protection

(1) If, in civil or criminal proceedings (the primary proceedings) instituted against an individual in a court, the individual makes a claim (relevant to the proceedings) that, because of section 548, the individual is not subject to any civil, criminal or administrative liability for making a disclosure that qualifies for protection under section 547:

(a) the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and

(b) if the individual discharges that onus—the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and

(c) the court must deal with the claim in separate proceedings; and

(d) the court must adjourn the primary proceedings until the claim has been dealt with; and

(e) none of the following:

(i) any admission made by the individual in the separate proceedings;

(ii) any information given by the individual in the separate proceedings;

(iii) any other evidence adduced by the individual in the separate proceedings;

is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and

(f) if the individual or another person gives evidence in the separate proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.

(2) To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.

_____

SHEET 3103

(1) Clause 551, page 511 (after line 24), after subclause (2), insert:

(2A) In proceedings for a civil penalty order against an entity for a contravention of subsection (1):

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in paragraphs (1)(a) and (b); and

(b) if that onus is discharged—the entity bears the onus of proving that the claim is not made out.

(2) Clause 551, page 512 (after line 19), after subclause (5), insert:

(5A) In proceedings for a civil penalty order against an entity for a contravention of subsection (3):

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in paragraphs (3)(a) and (b); and

(b) if that onus is discharged—the entity bears the onus of proving that the claim is not made out.

_____

SHEET 3104

(1) Page 509 (after line 22), after clause 549, insert:

549A Certain recipients to take steps to protect disclosers

If:

(a) an individual makes a disclosure that qualifies for protection under section 547 to an entity (the recipient); and

(b) the recipient is:

(i) a registered provider; or

(ii) a responsible person of a registered provider;

the recipient must take such steps as are reasonable in the circumstances to protect the individual against any reprisals that have been, or may be, taken in relation to the disclosure.

The Greens are concerned about the strength of the whistleblower provisions contained in the bill. In the absence of a worker voice, it's critical that participants and workers are protected from adverse consequences for whistleblowing. The royal commission shows that people must feel safe to speak up when something is wrong, particularly in a sector like aged care, where it can be a matter of life or death. These amendments go towards strengthening the protections for whistleblowers, and we strongly encourage the Senate to support them.

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

The government will not be supporting these amendments. The Aged Care Bill introduces a new expanded whistleblower framework to ensure that anyone is protected if they make a whistleblower disclosure about aged care. Whistleblowers will be protected from any civil, criminal or administrative liability, including disciplinary action. No contractual or other right or remedy may be exercised against a whistleblower on the basis of a disclosure.

The identity of whistleblowers will be also protected and not be disclosed except in limited circumstances, or with the consent of the whistleblower. An example of a circumstance in which their identity may be disclosed includes, where necessary, to lessen or prevent a serious threat to safety, health or wellbeing. Neither a whistleblower nor any individual who employs or is associated with them may be victimised or threatened by any entity as a result of making a protected disclosure or for intending to make such a disclosure. For example, if a family member or staff member makes a disclosure on behalf of an older person, the older person must also not be victimised under the bill.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Given where we are at with whistleblowers in this country—and the government is currently prosecuting Richard Boyle—it seems to me that taking on expert advice and beefing up whistleblower protections is a very good thing, so I certainly will be supporting the Greens' effort to do that.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that amendments on sheets 3101, 3102, 3103 and 3104, standing in the name of the Australian Greens, be agreed to.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

by leave—I move my amendments (1) to (3) on sheet 3097 together:

(1) Clause 338, page 348 (after line 20), after the paragraph beginning "The System Governor". insert:

The System Governor must provide quarterly reports to the Minister on the duration of waiting periods for certain funded aged care services.

(2) Page 353 (after line 3), after clause 342, insert:

342A Quarterly reporting on waiting periods for certain funded aged care services

(1) Subject to subsection (4), the System Governor must give the Minister a written report, within 28 days after the end of each quarter, on the duration of waiting periods for non-specialist funded aged care services.

(2) Without limiting subsection (1), the report must include the following information:

(a) the number of applications for non-specialist funded aged care services made under subsection 56(1) for which a decision under subsection 57(1) has not been made, including applications made during that quarter and previous quarters;

(b) the average number of days between the date of an application for non-specialist funded aged care services being made under subsection 56(1) and the commencement of the provision of non-specialist funded aged care services, where those services commenced in the quarter;

(c) the median number of days between the date of an application for non-specialist funded aged care services being made under subsection 56(1) and the commencement of the provision of non-specialist funded aged care services, where those services commenced in the quarter;

(d) an assessment of the differences in the time taken between application and the commencement of services as a result of whether the non-specialist funded aged care service was delivered in an approved residential care home or a home or community setting;

(e) an assessment of the differences in the time taken between application and the commencement of services as a result of the State or Territory in which the non-specialist funded aged care service was delivered;

(f) an assessment of the differences in the time taken between application and the commencement of services as a result of the local region in which the non-specialist funded aged care service was delivered;

(g) any other matter prescribed by the rules.

(3) The System Governor must publish the report on the Department's website as soon as practicable after it is given to the Minister.

(4) If this section commences during a quarter (but not on the first day of the quarter):

(a) no report is to be made at the end of the quarter; but

(b) the report made at the end of the next quarter is also to include the information about the duration of waiting periods for non-specialist funded aged care services that occurred in the previous quarter.

(5) In this section:

local region has the meaning prescribed by the rules.

non-specialist funded aged care service means a funded aged care service other than a service delivered under a specialist aged care program.

quarter means a period of 3 months starting on any of the following dates in a year:

(a) 1 January;

(b) 1 April;

(c) 1 July;

(d) 1 October.

(3) Clause 601, page 559 (after line 20), after subparagraph 601(1A)(b)(v), insert:

(va) the expansion of regular reporting on the duration of waiting periods for funded aged care services to cover specialist aged care programs;

These amendments provide some structural transparency around waiting times in the aged-care system. Crucially, they would allow us, every quarter, to see how waiting lists are tracking across the country, from the time people put in an application until the first service commences. We know that this is an issue both here in the ACT and across the country in various communities, and up until this point the only way to find out about it was through the estimates process. It's my hope that more transparency will allow us to pick up on issues and provide them to the government.

We can't underestimate the toll that long waiting times for support can have on senior Australians. When we don't step in with timely support, people are at risk of losing confidence or injuring themselves. They end up in our hospital system or in residential care long before they need to. It's not a good outcome for anyone, but I accept that there is a lot of work to do to lower the waiting times

I thank the government and opposition. In particular, I would like to thank the team in Minister Wells's office and Senator Ruston's office for their advice with these amendments.

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

I thank Senator Pocock for moving this amendment. The government supports the amendment and appreciates the engagement we have had with Senator Pocock on this. It is aligned with our commitment to improve transparency and accountability in aged care and works well with the new reforms under this bill that hopefully will become an act soon. We are very happy to support this amendment.

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

The opposition will be supporting the amendment moved by Senator Pocock because we believe that the information that Senator Pocock is seeking to be made publicly available on a regular basis is something that has been sadly lacking. We have seen quite extraordinary blowouts in the wait times and the number of people on the national priority system. Minister, I was wondering if we have any idea on the commencement of Support at Home, the anticipated number of packages from level 1 to level 8 over the first 12 months and two years of the system?

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

We have new entrants to Support at Home, a mix of people accessing new places and also people accessing existing places from people who exit care. There are 83,000 new packages. There are expected to be 90,000 exits and 173,000 total new entrants in 2025-26.

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

So you are anticipating there will be 83,000 new packages, accepting that of the 173,000 new entrants, 90,000 of them, sadly, will be replacing those no longer in the system. So we have 83,000 new packages. My calculations tell me there are only 30,000 new packages being released next year, so I'm interested to understand where those 83,000 packages are coming from.

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

The commitment from the government is 300,000 places over 10 years. There is not an annual allocation of 30,000. Releases will vary per year in line with some of the demand projections.

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

Okay, could you give us an indication then, on the basis of the calculations that have been handed to you from your officials of the 83,000 new packages for 2025-26, are all 83,000 going to be made available in 2025-26?

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

Yes. The projection is there will be 83,000—sorry, let me check my notes—new packages, which is what I said at the beginning of my answer.

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

Of the 300,000 packages you are estimating over 10 years, are you estimating 83,000 of those will be released in the first year?

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

So we've got 83,000 packages to be released in 2025-26, which, obviously, is going to leave us with 217,000 packages over the subsequent nine years. Have you got the breakdown of the estimation of those packages?

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

I don't believe that information is available. Obviously projections will be updated as the system rolls out and new packages are provided. You would expect that, I would imagine, to happen on an annual basis.

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

Is the costing for those 83,000 new packages contained within the financial envelope that has been released as part of this?

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

Yes, it is.

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

In relation to the first year, obviously, because that's the one you have the information on, have you got a breakdown of those 83,000 packages and what will be in levels 1, 2, 3, 4, 5 through to 8?

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

I don't believe so at this stage. It's dependent on assessments.

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

Obviously that's great news for older Australians, particularly those on waiting lists, that 83,000 packages are going to be released in 2025-26. I'm interested to understand what modelling you've done in relation to workforce capability to be able to provide those services.

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

As I said earlier this morning, we have seen a number of changes with the aged-care workforce. Obviously the aged-care wage increases have significantly improved the aged-care workforce, both in retaining and in attracting people to the aged-care system. This is something that the minister has been working very hard on. Clearly, expanding services significantly can only be successful if there is the workforce to provide them, but the aged-care wage has been probably the single biggest important initiative, which, again, the minister fought very hard for. There is also the work that's been released—this professional framework to build and strengthen the aged-care workforce. I know we're not allowed props, but I'll just show you that one. And working with providers about their expectations is clearly part of it.

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

I hope you are able to achieve that. I'm interested to understand: if you're going to release 83,000 packages in 2025-26, what was the rationale behind the decision to only release 24,100 in 2024-25?

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

That decision was essentially based on keeping the packages going out but knowing that the minister was leading these reforms to get the new system in place, which would significantly increase the number of packages. So it's essentially to continue to invest, build and make packages available knowing that this system, once this bill passes, will be implemented. As we said, there will be a significant uptick in packages for the 2025-26 year.

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

I'm still not quite understanding what you're saying in relation to this. My question was in relation to the 24,100 packages released in 2024-25, and you're saying 83,000 are going to be released in 2025-26. What changes proposed in this bill are going to substantially change the means through which packages are delivered that would warrant you restricting packages to 24,100 this year when somehow you've been able to find the capacity within the system for 83,000 packages next year? You're making it sound like the reforms that are before us, within this package of legislation, are somehow going to change the ability of the sector to deliver those packages.

I take your point around a previous decision in relation to wages, which has certainly seen a stabilisation of the exit of staff from the aged-care workforce, and I know that the aged-care sector is grateful for that intervention. But I'm trying to understand what is happening here or what changes you are referring to that would mean that you are releasing more than three times the number of packages in 2025-26 than you have 2024-25. What is the basis for that? To me, it has a very strange look of you restricting the release of packages in 2024-25. If the capacity exists in 2025-26 for more than three times the number of packages than were released in 2024-25, I would like to understand why you have restricted the release of packages in 2024-25.

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

There have been additional packages in 2024-25, and then, through the reforms in the Aged Care Act and the Support at Home program, we are building a more sustainable aged-care system, going forward, including more options for care through Support at Home, including co-contributions. There has been no restriction. There has been additional investment. Then, in 2025-26, when Support at Home would commence—as you know, there are different levels of packages that will come through there, with different levels of care and more choice and control for participants, including the use of co-contributions. It's around the whole purpose of this bill, essentially.

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

Minister, what will be the amount of the co-contributions in 2025-26?

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

I don't believe that that is a number we can give, because it would be based on assessments and based on the choices of people coming into Support at Home—what options from the service list they want to pursue. I think it would be almost impossible to predict that.

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

You made a comment about the reason that 83,000 packages would be able to be released into the market in 2025-26. You said it was the co-contribution, and it's interesting that you don't know what the co-contribution is to that. Nonetheless, I'm very interested. This program doesn't start until 1 July 2025. There are significant grandfathering provisions contained within this to make sure that anybody who's already on their aged-care journey is not going be negatively impacted. I still don't quite understand how we've gone from 24,100 to 83,000 in the space of one year, but, obviously, that's very good news for older Australians who are looking for access to government funded and supported aged care.

As I said, we'll be supporting Senator David Pocock's amendments in relation to transparency around wait times and waiting lists, and thank him very much for the really constructive way that he has engaged in this process in support of older Australians who are currently languishing on very long waiting lists and for very long wait times.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Since debate on Senator Pocock's amendments seems to have taken its course, the question is that amendments (1) to (3) on sheet 3097 moved by Senator David Pocock be agreed to.

Question agreed to.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I move amendment (1) on sheet 3157:

(1) Amendment (64), to be opposed.

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

I was going to withdraw government amendment (64) on sheet RY104 and, by doing so, I think Senator Pocock doesn't need to move his amendment on sheet 3157.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

That's my understanding. Senator Ruston.

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

I'm just seeking clarification: will item 64 remain in the bill?

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

Yes, this is an amendment. It's not in the bill. It was on our amendment sheet which we are now not moving because it relates to the reporting and transparency that we dealt with Senator Pocock's amendment on sheet 3097, so I'm withdrawing that.

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

So does Senator Pocock's amendment now stand in its place?

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

Yes, we just passed his amendment on sheet 3097. I will withdraw that amendment.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

If I can sum up, the minister has withdrawn the amendment (64) on sheet RY104, which means, Senator Pocock, you no longer need to move your amendment on sheet 3157. I ask you to advise the chamber that you're not intending to proceed.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I'm happy to withdraw my amendment on sheet 3157. I move the amendment, standing in my name, on sheet 3122:

(1) Clause 5, page 3 (after line 26), after paragraph 5(d), insert:

(da) ensure individuals over the age of 65 with disability receive daily living supports and outcomes comparable to those that would be available under the National Disability Insurance Scheme to a person under the age of 65; and

The aged-care royal commission made a powerful statement that people with disability receiving aged care should receive daily living supports and outcomes equivalent to those that would be available under the NDIS. That's clearly not happening currently. As I spoke about yesterday, I had the pleasure of meeting two Canberrans for whom this inequality is a reality on a daily basis: Lorraine, who suffered a spinal cord injury over the age 65, and Peter, her husband, who supports her every single day.

Peter is 86 next month, and he worries that he will soon no longer be able to help his wife get into bed in the evening. But he's got no choice because, through the home-care system—which is soon to be the Support at Home system—they cannot get the support Lorraine needs in the evening. My amendment on sheet 3122 won't mandate that people receive the same supports as they do in the NDIS but sets the objective that it is something we need to take seriously. It also recognises that the aged-care system is the system for people who become disabled over the age of 65. Currently, that's not entirely clear, but, in practice, it is the system and has to deliver for older Australians with disabilities like spinal cord injuries.

Minister, I have a couple of questions before we get to a vote on this amendment. What is the government's position on recommendation 67 of the aged-care royal commission? Does the government accept the recommendation? If so, how does the government intend to see it implemented?

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

I was just seeking further information to check in terms of the response to the royal commission—I just don't have that information available at my fingertips—but the government certainly recognises that people over the age of 65 who require additional support, particularly with home modifications or assisted technology like walkers, wheelchairs and other equipment, should have these provided. Under the Support at Home scheme, we believe there will be a significant improvement and an increase in care and support that will be able to be provided to people over the age of 65 who are participants in the Support at Home scheme.

If I talk to your amendment at the same time as trying to answer your question, the Support at Home scheme will include more tailored support with those eight ongoing levels all the way up to $78,000 a year. There will be support for home modifications with up to $15,000 to make homes safer. There will be fast and better access to assisted technology. There will be a new equipment loan scheme. And if someone needs assistive technology or equipment over the $15,000 cap then it can be prescribed and provided. So assisted technology is practically uncapped if a person is in need of that extra support. We recognise this has been a difference between those under 65 and those over 65, and we believe the new Support at Home scheme is a significant improvement and increase in the care and support that will be provided to people at home. As such, we won't be supporting your amendment.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Thank you, Minister. I appreciate the extra investments for home modifications and assistive technology. This is obviously very welcome and will go a long way to helping people with disability over the age of 65. But what I'm hearing that people are struggling with is, quite literally, getting hours of personal care support in their package. A person with quadriplegia needs help showering, needs help getting into and out of bed, needs help getting changed. None of that is solved through home mods and assistive technology. It's solved through personal care workers providing the valuable support that they do.

We were just talking about Peter's case and him doing that. That's my question here. This is something that Peter and Lorraine don't have. It was recommended by the royal commission that people over the age of 65 with a disability have these sorts of supports. What can we do about this? How do we not just kick this down the road and say, 'Well, you'll have more technology,' if care hours are actually the problem here?

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

Sorry; I should have touched on that. At the moment, under homecare packages, there's only levels 1 to 4. This is increasing the number of classifications, from one to eight. If you are on one of the highest care packages, which pays for those hours, there will be an increase of almost $20,000 in the package, which translates into those extra care hours.

I do believe that the Support at Home program, if you are a high-needs person, and it sounds like the folks you were talking to would classify for that, there would be additional hours of care provided through the package but even utilising the package and then some of that assisted technology and equipment would hopefully mean some of the care being provided would be more effective and efficient and supportive for her as well.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question is that amendment (1) on sheet 3122 moved by Senator David Pocock agreed to.

Question negatived.

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

The opposition amendment on sheet 3077 relates to the complaints system. I'm keen to get some information from the minister for the time based obligations put around complaint determinations. Minister, we've been getting a number of calls to my office, as I'm sure everybody has to their offices, in relation to this.

Yesterday, my office was contacted by a woman in South Australia. Her mother had a homecare package, but she had to go to hospital because she had a stroke. The daughter contacted the homecare provider that was providing her homecare package and advised that her mother was in hospital and sought to have her package services cancelled for the duration of time that her mother was in hospital. This didn't happen, and, according to the constituent, the services that were contracted to the provider continued to be provided by that particular provider for the three months that the lady who'd had the stroke was in hospital.

There are a couple of questions here. First of all, after continuous complaints to the provider, the services were eventually stopped, after three months. She complained to the Aged Care Quality and Safety Commission some time afterwards. Not only did they continue for three months but the money was taken out of her package for the services over that period of time, so a quarter of her annual package was taken during that time. The Aged Care Quality and Safety Commission said it is only possible to ask an aged-care provider to make those changes; it cannot force them to make those changes. Under the new provisions that exist in this bill, in relation to the Complaints Commissioner, how would this situation have been resolved, and how would it be any different to how this appears to have been dealt with under existing complaints provisions?

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

Under Support at Home you'll only pay for the services you receive, under the new system. I think that's the first thing to say. In relation to the complaints, I'm advised that the aged-care rules will outline a requirement for any complaint or feedback to be acknowledged within three days of receipt and for the commission to keep complainants and other relevant parties updated on a regular basis throughout the complaint resolution process. The rules would also provide specific guidance on reviews by the Office of the Complaints Commissioner, noting that this is to include specific timeframes for reconsiderations and reviews as well as specifying the decision-maker for a decision or a review or reconsideration of a decision to be providing that advice. I think there are some significant changes under the new arrangements that would apply, although it is difficult to talk about individual circumstances. I think those, in a general sense, would be the main changes.

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

Thank you, Minister. You responded that, going forward, you'll only pay for the services you receive. In a technical respect this person did receive services, because, despite asking for them not to be provided, they were provided. What would be the mechanism in this situation going forward? The provider continued to attend the home of Mrs X, who was in hospital. What obligation is there on the service providers when they attend the premises? Clearly, she wasn't there for three months. According to the constituent that spoke to me, the services—cleaning and gardening—continued to be provided, despite the fact nobody needed to clean a house that nobody was living in. What are the obligations, and how does the complaints mechanism work? Clearly the commission was made aware of this particular issue, and it has advised that it's only possible to ask a provider to make changes. Under the new provisions that are contained here, what are the powers? The commission has said it can only ask them to make changes; it can't enforce those changes. What is in the bill that makes that enforceable?

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

I'm not aware of the case. I've heard what you've said. I think it is very difficult for me to go further into what could be done. I've told you that people will only pay for services provided. I acknowledge your response to that. I have told you that complainants will be required to have their complaint acknowledged and feedback provided within three days of receipt, which goes to some of your constituent's concerns around trying over a period of time to have this matter dealt with. If I can provide more information about whether or not the complaints commissioner can compel a provider to stop providing care, I will take further advice on that.

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

I raise this as an example. I'm not specifically talking about this example. If somebody makes a complaint about something, what are the kinds of complaints that the commissioner has no power to take action on?

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

Your question is: What areas can't the commission involve itself in or determine? Is that right?

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

Yes. In this particular instance, the lady has said that the commissioner said that they could only ask the provider. They couldn't force the provider to do this. In terms of the powers of the commissioner, what are the powers of the commissioner in enforcement of something, and what don't they have powers for? As this lady pointed out, it seems very odd, when you're asked not to provide a service, that you actually refuse not to provide a service and continue to provide that service, even though that service is completely unnecessary and unneeded. Yet the commissioner says that they have no power to do that. Is there a framework in terms of the powers of the commissioner about what they can enforce and what they can't?

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

The commission has to enforce the law. I think your question is a slightly different one. I think—if you'll forgive me—we should take that and perhaps have the department write back to you about the circumstances in which the commission could compel a provider to not provide care. Is that okay? Yes? Okay.

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

In the interests of trying to get my head around this, when I was at the ACCPA conference—the aged-care providers annual conference—a question was asked of a panel which included the aged-care commissioner and the complaints commissioner. The question, which went to the complaints commissioner, was: what would be different under the new provisions that are contained in this act in relation to the receiving and actioning of complaints compared to the current situation? The complaints commissioner actually said that there would be no difference. We asked the commissioner at estimates—I think you were there, Minister, when we asked the commissioner—and she made reference to the fact that that probably wasn't correct; there would be things that would be different. Throughout the inquiry process, there were concerns raised about the timeliness not just of reporting but of the actioning on reporting.

There were also concerns around the fact that the complaints commissioner was embedded within the commission for two reasons. One is what difference would that make from existing provisions, and the other is what happens if the complaint was actually about the commission in the first place. Unpacking those two issues, I ask: what are the substantive changes in relation to the role of the complaints commissioner that are contained in this bill that don't currently exist?

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. I think one of the main differences will be the restorative justice approach to complaints handling, bringing people together to resolve complaints. I think that would probably be the most significant one. I'll see if there's anything further that I can add. The complaints processes will be contained in the rules. It will be in the final tranche of the rules. I think that they are coming out in four blocks. I think the first block is out; the second block is almost out. I understand from discussions with the minister that the harder bits were coming out first so that more feedback on all of that could be done. So complaints handling and processes would be in the final tranche of the rules.

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

Just in a broadbrush response, do you expect that there will be a significant change in the remit of the complaints commissioner in the new rules?

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

Not in the sense that they would be given jurisdiction to enforce the law, as they currently do as an independent statutory office. I guess, in some of the approaches to complaints resolution, you could see changes to that and, again, with that early intervention and bringing people together to try and resolve complaints earlier and sooner in a collaborative way, and that would be outlined in the rules.

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

Just finally on this one, unless other senators wish to make a contribution, I'm keen to understand this: what happens if the complaint is about the commission itself? It seems a bit like they are somewhat judge and jury in this respect. If somebody like the lady I was just speaking about had made a complaint to the commission and now wants to make a complaint about the fact that the commission is not able to do anything about her complaint, what further opportunity has she got for redress on this issue?

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

I'm advised there is an internal complaint handling process for the commission that is on their website, so a person could lodge a complaint about the commission.

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

To the commission?

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

They would have an internal process of dealing with that, as most agencies do. As far as I know, if you wanted to make a complaint about the Department of Finance, they would look at—

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

No-one ever makes a complaint about the Department of Finance.

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

I wouldn't be so sure about that. Finance has a set of procedures about how to handle those complaints, measured on the seriousness of it, but also the Ombudsman is the relevant authority should someone want to escalate or not pursue it through the internal grievance procedures.

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

Thank you very much, Minister. I want to put it on the record that we heard a significant amount of concern expressed around the lack of robust change that was being proposed, but as you rightly point out we are yet to see the rules in relation to this particular part of the bill. We will wait to see those and look forward to the scrutiny that we will be able to have over that, given that we have got the agreement of this place for scrutiny of the subordinated legislation. On that basis, I commend this amendment to the chamber.

I move the amendment, standing in my name, on sheet 3077:

(1) Clause 361, page 365 (after line 30), after subclause (1), insert:

(1A) Without limiting subsection (1), the rules must provide that if a complaint is made to the Complaints Commissioner about:

(a) the compliance of a registered provider or a responsible person or aged care worker of a registered provider with this Act; or

(b) a registered provider acting in a way that is incompatible with the Statement of Rights;

the Complaints Commissioner must, by the end of the period specified in the rules:

(c) deal with and resolve the complaint; and

(d) prepare a written statement (a complaint determination) setting out:

(i) what action (if any) the Complaints Commissioner took to deal with and resolve the complaint; and

(ii) what action (if any) should be taken by another person to deal with and resolve the complaint; and

(iii) information relating to the review or reconsideration of decisions made under the scheme; and

(e) give the person who made the complaint a copy of the complaint determination.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that the amendment standing in the name of Senator Ruston on sheet 3077 be agreed to.

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

I move the opposition amendment on sheet 3080:

(1) Clause 23, page 49 (after line 34), at the end of the clause, add:

(13) An individual has a right to access, at any time the individual chooses, a person designated by the individual, or a person designated by an appropriate authority.

This amendment seeks to make sure that no person in aged care can, in the future, ever be denied access to see the person that they designate, or the person that is designated under the appropriate authority. We need to make sure that, if we're going to embed choice, control and rights for older Australians into this act, one of the most fundamental rights of anybody is to be able to get access to the people they love.

We know we have to ensure the safety of everybody in a workplace, but you have to remember that the workplace we're talking about when we refer to residential aged-care homes is the home of the person. We believe that it is absolutely essential that never again older Australians are denied access to their loved ones for any reason whatsoever. We believe that every home in Australia should be able to provide for a situation where, no matter what the circumstances, an older Australian can always get access to their loved one. To be denied access to see somebody that you care for or love, in the final days of your life, is, we think, completely unacceptable. Therefore, we are moving this amendment to make sure an individual always has the right to access, at any time, the person that they choose, a person designated by them, or a person designated by an appropriate authority, if that individual is unable to make that decision for themselves. I would highly commend this particular amendment to the chamber.

It was certainly something that came up during the inquiry, and it really related to older Australians being able to have the dignity of risk. If older an Australian makes the decision that it is their preferred situation to see a loved one, even if that loved one has got the flu or something that potentially may be harmful to that individual, they should have the dignity of risk to in choosing whether they see them. I would absolutely commend this particular amendment to the house.

I want to put on the record a piece of evidence that was received from Margaret. Margaret was one of our lived-experience witnesses during the inquiry, and she made a comment that really struck home to me. And if we are really, really serious about making sure that we are giving choice and control back to older Australians—and that's the fundamental premise of why we're standing here all day today talking about the details of this bill; it's about making sure that older Australians and their rights, their choice and their control are at the centre of the framework that delivers aged care in Australia going forward—then I think the words of Margaret are really important. Margaret is 76 years old, and this is what she had to say:

The ongoing elephant in the room is the perceived dichotomy between duty of care and dignity of risk. If people were encouraged to spend their whole lives, from babyhood, cocooned in their own homes, never opening the door and venturing into the outside, they might be physically safer; however, we know that would mean they would miss out on most, if not all, of the joys and challenges that risk brings, that life brings—the mental and psychological health that we all aspire to… We want to have the option to choose the right to take risks according to our own priority, not to be wrapped up irrespective of our own. Too often, as people age, they are perceived as having higher and higher needs for priority to go to care rather than to activities and options that give them some entertainment or even joy.

We believe part of that fundamental right and that dignity of risk is for them to see the people they love when they want to.

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

The government will not be supporting the amendment. The Aged Care Bill already addresses the issue raised by Senator Ruston. Part 4 of chapter 1 establishes the role of supporters in the context of decision-making. Chapter 3, part 4, division 1, clause 156(1)(a) and 156(1)(b) establish, as a condition of registration, a registered provider must allow and facilitate access to persons including supporters, advocates and aged-care volunteer visitors in accordance with any requirements prescribed by the rules. Chapter 1, part 3, division 1, clause 23(12) also provides:

(12) An individual has a right to opportunities, and assistance, to stay 24 connected … with:

(a) significant persons in the individual's life and pets, including through safe visitation by family members, friends, volunteers or other visitors where the individual lives and visits to family members or friends …

The rules pertaining to clause 156(1)(a) and 156(1)(b) are under development, and requirements for access for the stipulated persons will be considered through that.

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

Minister, you make the comment that you believe this is contained already. We don't believe that it's already contained in there. There are a whole heap of conditional words that are used within the various sections that you talk about. Also, we have yet to see the specific rules. Are they available?

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

No, they are not available yet.

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

My question to the government is: what is the harm in putting something into the legislation that is really concrete and underpins the absolutely fundamental basis of what we're trying to achieve here in terms of the rights of older Australians? We haven't seen the rules, so we don't know what's in them, but, if you say that everything that we are trying to achieve by this very simple amendment—all the amendment says is to add a clause saying:

(13) An individual has a right to access, at any time the individual chooses, a person designated by the individual, or a person designated by an appropriate authority.

It is not a convoluted amendment that has a whole heap of potential unintended consequences. It's pretty straightforward. I'm really keen to understand: what is the basis on which the government would not be allowing older Australians this basic human right?

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

Senator Ruston, I acknowledge your right to move the amendment. We agree to disagree on this. We think it is already contained in the bill and will subsequently be further provided for in the rules. So we are opposed to the amendment but accept that you have moved the amendment.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that the amendment on sheet 3080 as moved by Senator Ruston be agreed to.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I move the amendment on Sheet 3142:

(1) Page 173 (after line 23), at the end of Division 1, add:

Subdivision J — Condition relating to residential care homes

165A Residential care homes

(1) It is a condition of registration that a registered provider in the residential care category must ensure that at least 20% of the beds in each residential care home covered by the provider's registration are reserved for supported residents.

(2) In this section:

supported resident means an individual:

(a) in respect of whom a registered provider is eligible to receive an accommodation supplement; or

(b) who may be charged an accommodation contribution.

Minister, within every region of Australia there is a minimum requirement for providers in each of those regions to preserve a percentage of those beds for Australians who may not have the means to pay a $750,000 refundable deposit or pay the $172-a-day accommodation payment. It's 16 per cent in Brisbane and North Queensland, it's 40 per cent across the regional Northern Territory and it's 19 per cent here in the ACT. That's today's law—that there must be beds set aside for those who may not be able to afford them. It protects against people who live in an area being priced out of that area. We all know this too well; we have areas where people have lived there their entire lives but they have now become very expensive and we're seeing people priced out of their neighbourhoods.

My amendment here would add back a minimum thresholding mandating that 20 per cent of beds in each facility must be for supported residents. It is far below the current national average of 40 per cent, but it will send a signal to the sector that they may not build an aged-care home exclusively for people with the means to pay high fees. We don't want this two-tiered system to develop. While I recognise that the rules may incentivise those who choose to accept supported residents with a higher accommodation supplementation amount, the lack of a clear floor means that future aged-care providers can build nursing homes that most financially disadvantaged people would be locked out of.

Minister, I am keen to ask a few questions. I know everyone is keen to get on with things. How many residential aged-care facilities currently do not have even a single supported resident? If possible, how many facilities have fewer than 20 per cent of beds filled by supported residents?

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

I understand 42 facilities across the country don't have any supported residents. Forty-four per cent of residents across the country are supported. Was that your question?

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Thank you, Minister. How many facilities have fewer than 20 per cent of their beds filled by supported residents?

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

We don't think we have that information with us. On your amendment: the difference under the new act, the new arrangements, will be that, instead of the supported resident arrangements that have been provided by region, the place will be provided to the individual. That's why we don't believe we need that existing 20 per cent, which is an average across the region, to continue. Also, facilities will get a supplementary rate.

The government won't support the amendment. Providers are given a financial incentive to have more than 40 per cent supported residents, and that supplement rate is 25 per cent higher than it is for homes with less than 40 per cent. Our commitment is there for supported residents; that does not change under this. It's just that the financial support or the incentives have been changed so that that 20 per cent average across a region is no longer required. Sixty-three per cent of facilities get that payment and have over 40 per cent supported residents.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

Minister, aged care is a Commonwealth program. Providers receive taxpayer funds and it seems to me there is a social contract that comes with that. It's the responsibility of each provider to take their share of Australians who don't have the means, to give them a dignified safe experience in the places they own and manage. Does the government believe every residential aged-care facility should cater for supported residents?

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

There are only a very small number that don't; the vast majority do. We strongly support the idea that individuals requiring residential aged care should be provided that care regardless of their income or assets. I think we're in furious agreement here; the disagreement is over the mechanism used to provide that extra support through the funding. Your position is: keep it the way it is now, with a 20 per cent average per region. We're saying we want to allocate those places to individuals and we want to incentivise, and the aged-care industry at the moment clearly indicates that, with the receipt of those additional payments, by far the vast majority are providing supported resident placement and getting the financial incentive to allow that to occur.

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

Just following on in relation to the questions Senator Pocock has been asking in relation to the amendment he's moved around supported accommodation residents: at the moment, the Department of Health and Aged Care website requires that there are mandated ratios per area in terms of how many supported residents a particular aged-care home in an area is required to have. I am interested to understand: does the department keep a record to make sure that, currently, those ratios are being met?

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

Yes, the department does, and those ratios are exceeded.

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

Have they ever not been exceeded?

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

Not that my expert box full of smart people can say! But I don't believe so.

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

Is there any intention that supported residential mandates will be in the rules, or is your previous explanation to Senator Pocock that it will now occur because of the way residential aged-care packages are allocated or provided to the individual? I'm somewhat confused about how that might actually work in practice. Could you unpack that a bit for me?

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

The allocation of the supported place would go to the individual, regardless, rather than being allocated to a region. That's, again, in line with the act, which is all about providing for that person at the centre of the care. Then there's the incentive payment, or supplement, that will be paid to those providers that have greater than 40 per cent of residents in that category.

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

Am I to read into that that you're relying on the 25 per cent additional higher payment for supported resident supplement for over 40 per cent of residents being supported—you're relying on that 25 per cent, or you're relying on the supported supplement?

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

The allocation of the places—

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

No, but what I'm saying is: if you're allocating an aged-care residential place to someone in aged care, if they go into an aged-care home that has got in excess of 40 per cent of supported residents, am I reading into that that the home that has them will be paid a 25 per cent premium, as they currently are, so there's no change in terms of the support of government in terms of incentivisation around supported—

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

No.

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

Can I just say that one of the things that the opposition has consistently said, throughout hearings and throughout the committee process, is that we believe this is a fundamental flaw in the whole system and in the bill, and we certainly understand what Senator Pocock is trying to do by moving this particular amendment, because there is no doubt whatsoever that the opposition absolutely supports the idea of equal access for individuals who need aged care, regardless of their income or wealth, and that includes ensuring that people with lower means continue to be able to support the aged-care services that they need, and, most particularly, that they need within their local community.

There is one thing that we heard time and time again during the inquiry, particularly when it related to areas in regional Australia. As an example, both of the nursing homes that gave evidence in Port Lincoln said that they were at capacity; there were many older people from Port Lincoln or surrounding districts who were currently in the Port Lincoln hospital; there was no capacity for them to be accommodated within the nursing homes in Port Lincoln, so these people were being forced to move hundreds of miles away from their community, their families and their loved ones, just to be able to get access to care.

The point I think Senator Pocock is trying to make here, and I'm sure he will correct me if I'm wrong, is that, currently, the accommodation supplement paid for by the government, the accommodation contribution made on behalf of an individual who is supported, if they receive the 25 per cent incentive payment because the home that they're in has more than 40 per cent of residents as supported residents, is $68 a day. If you then make a comparison to that, as Senator Pocock did, in terms of a higher value refundable accommodation deposit, the amount that the home would receive, as an example, from a daily accommodation payment would be $172 a day. The government is paying $68 a day; the home is charging, under commercial means, $172 a day, because that is what they are allowed to charge based on the MPIR. So, essentially, what we've got here at the moment is a situation where residential aged-care providers are covering the accommodation costs, or a significant proportion of the accommodation costs, for supported and partially supported residents, and, in doing so, are most likely charging higher costs to those people who aren't supported in those payments. So we have a massive discrepancy between what the supported accommodation payment is, even where it has received the 25 per cent increase or bonus that the minister was talking about, and the daily accommodation payment, the difference being, as I said, that the supported accommodation payment is $68 a day and the daily accommodation payment is $172 a day on the maximum current refundable accommodation deposit calculation, where the person is paying a daily accommodation payment.

One of the things that we were really pleased about was that the government accepted the recommendation of the opposition to move forward the accommodation review, because these pricing structures that currently are in place are completely and utterly unfair. We have three different means by which people are paying for their aged care. One is obviously supported by the government, and the other two are through a refundable accommodation deposit or through a daily accommodation payment which is based on the price of the accommodation deposit. We think that this review is absolutely essential to try to remedy this structural flaw. We believe that accommodation should have a room price and that room price should be consistent. You should not have three different prices—or, in the case of a ratio under 40 per cent, four different room prices—for exactly the same room. So we are very pleased that the government has listened to calls from the opposition. Once again, I give a shout-out to COTA for their very strong advocacy on behalf of some of the people they represent—those who are most vulnerable and particularly those who are suffering financial hardship—about the agreement to put more explicit hardship provisions into the bill.

Senator Pocock, while we're not in a position to support your amendment, I want to put on the record that we absolutely understand where this is coming from. We believe there is a bigger issue to resolve here than simply putting in another number or ratio. We think there is a far greater fundamental flaw in how accommodation is charged in the aged-care sector in Australia as we're standing here. So we would say we want to go to this review as quickly as possible to make sure that we have got the whole issue resolved, even though we absolutely support the intent of what you're trying to move here.

I'm keen to understand the changes that are being proposed at the moment that are in the rules. Currently, they're determined by location. Am I correct in assuming that in the future there will be no location requirements in terms of the ratios that you're talking about here, so it won't matter where you are but it will just be a blanket determination that, if the supported resident ratio of a particular home is over 40 per cent, you'll get $68 a day and, if it's under 40 per cent, it will be $52 a day? I'm not quite sure what the actual figure is, but is that correct? So it doesn't matter where you are—whether you're in the most remote part of Australia or the middle of a capital city? The 40 per cent rule is just a blanket one-size-fits-all, with no regard for the nuances of the vastly different statuses of those markets?

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

That's right. There are a range of grants and supplements available under the system, as you know, and the allocation will be to a person, not to a region. I can see Senator Wong is bribing you, Senator Ruston—with chocolate frogs, I might add.

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

():  Okay. Just as an example, the mandated ratios vary significantly depending on the region at the moment. I take it from what you've just said, Minister, that—even though we know that, in places like Alice Springs and the Barkly, the ratios are much higher and they're different depending on where they are—you have no concern about any unintended or adverse consequences of no longer being a little more specific about the targeting of the requirement for supported residents. You're actually removing it altogether. There is no concern that we're going to see potentially some places where homes will make the decision not to take any supported residents at all?

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

Not worried.

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

Thank you very much. I must say that I am particularly surprised that the government is not concerned about the most vulnerable in our community being potentially adversely affected by the fact that there is no protection left in here until such time—

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

We've been going so well, Senator Ruston. Don't verbal me.

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

Order! You'll have your chance.

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

as we are able to have the review. The only comfort that I suppose I take from all that is that the government was accommodating in bringing forward the review into accommodation to July 2026. Hopefully we'll be able to get a resolution that will be able to provide much more transparency, equity and fairness when it comes to the payment of accommodation component of people's aged-care payments when they're in residential care. I commend Senator Pocock for his amendment and look forward to working with him over the coming months to make sure that we get this accommodation review resolved so that we can get that fairness into the system.

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

I don't want to delay the Senate, but I just do want to put on the record that that is not what I said. The government does care and is very focused on the needs of vulnerable older Australians. That is why the proposal is that, rather than allocate supported places to a region, they are going to be provided to the individual. That is appropriate with the person centred care approach of the Aged Care Act.

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

I'm sorry for prolonging this, but I'm really keen to understand. At the moment there is a mandated requirement in relation to the percentage in relation to the supplement that's paid to a home for supported residents. You are taking away one part of that but not making any change to the other part of it. There is no change at the moment. The actual payment follows the person, but the reality is that there is actually no change. There is just no safety net anymore in relation to the requirement for there to be supported residents.

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

I'm advised that the mandated arrangements are 10 years old. They are substantially exceeded. This is an appropriate way under the new objectives and principles of the act to allocate support for individual older Australians. As you said, there is a review that's coming forward, and obviously we will watch and manage any concerns that come with this, but we strongly believe this will provide the support for the individuals who need it in a system that has been supporting much more than the mandated levels of supported places.

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

For the record, I hope you're right, Minister.

Question negatived.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I move the amendment on sheet 3098:

(1) Clause 308, page 304 (after line 18), after subclause (4), insert:

(4A) A registered provider must not deduct a retention amount from a refundable deposit balance in any one year period if the sum of all retention amounts deducted from the refundable deposit balance in that period is equal to or greater than 2 per cent of the refundable deposit.

This is around the two per cent cap—the ceiling. There's clearly a different standard of parliamentary scrutiny when it comes to legislation versus delegated legislation and a potential disallowance. I think that this sort of thing should be in primary legislation. We have the habit, it seems, of putting a lot of pretty important, consequential matters in delegated legislation, which doesn't have the same level of scrutiny. I think, if this two per cent were to change, this would require parliamentary scrutiny and debate. If it made sense, I'm sure, as we are seeing today, there'd be good-faith negotiations and contributions, and we'd come up with a new plan. But I don't think this should be in delegated legislation. This would significantly impact the finances of older Australians if it were raised, and that's why I'm proposing this amendment.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I rise to put on the record that the Greens will be supporting this amendment. Our position is that the retention rate should be zero per cent, but this amendment is an important cap on stopping a future government from increasing the rate.

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

We won't be supporting this amendment. The Aged Care Bill introduces a new requirement for providers to deduct and retain a small amount from a RAD. The retained amounts are intended to provide immediate improvement to sector financial viability. This change also applies to the refundable accommodation contributions, or RAC, which are used by residents that receive support for some but not all of their accommodation.

There is provision in the bill for rules to prescribe the rate of retention, when to deduct retention amounts from a refundable deposit and any other matters relating to the retention amounts. Once the laws are enacted, the rules will prescribe a RAD retention rate of two per cent per annum and will be capped at five years to protect residents who remain in care for a long time. Retention will not apply to the RADs or RACs of residents who enter aged care before 1 July 2025. These changes are in response to the final report of the Aged Care Taskforce.

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

The question is that the amendment on sheet 3098 as moved by Senator David Pocock be agreed to.

A division having been called and the bells being rung—

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Can we stop the bells. Senator Gallagher has indicated that a division is not required and that the government will record its opposition. Is that correct?

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

We record our opposition to that amendment.

Question agreed to.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Minister, I will try and make this as quick as I can in the interest of time. I want to confirm your timeframe and some of the risks associated with the timeframe. If I understood you correctly, you said that the discovery and design gateway will be finished this month and that the build and testing, and going to contract, will be between January and June next year, to go live 1 July.

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

I don't believe I said any of that. I said we were at the point where we had all the information we needed for design of the system and that it was undergoing that first gateway review. I am advised that all of the IT requirements that need to be in place will be in place by 1 July 2025.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I know it's a differentiation, but it is an important one. You said that the design is ready. Once the legislation is through, the legislation won't impact on the current design specifications that you have, and you don't need the regulations. It's ready to proceed once this legislation is through because you've got the information that you need, including any of the amendments that have gone through.

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

Clearly any that impact on that will be dealt with once the amendments have been finalised. A lot of work has been done on that design in the lead up to this—on the principles and the direction we're heading in with the agreement—with the opposition. The digital road map is being finalised and will be tested with the transition taskforce next week. Obviously, by then they'll have information on what the amendments are as well.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

In terms of a just-over-six-month timeline, there are significant risks. Having looked at a litany of audit reports, a six-month timeline for such a large project, even if you do have the design specifications almost ready to go now—does that mean that between January and June next year you will be going through the building and testing of the system? Do you already have a contract in place to do that, or do you now have to go out to contract? Is that another thing that needs to be done over those five months?

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

I'm not fully across the contractual arrangements that are required. I guess the assurance I'm giving you with this legislation—we did have officials a week or so ago at estimates who would have been able to answer these questions—is that the work is being done. It's a combination, I think, of a new build and managing existing systems, and the integration of those. It will be ready on 1 July. I am aware of how difficult IT projects can be, so of course this will be closely managed and monitored by the government.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

In relation to that oversight and monitoring, and the high risk that is associated with that, the department of health's monthly assessment from October 2023 to February 2024 was that this had a very high risk. In fact, it was rated as 'red' in terms of risk and went down to 'amber' in March. My understanding is it went to amber because at that stage the legislation was imminent; the legislation would be in by midyear. Are you able to advise where the department of health now has that risk? Has it gone back up to red?

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

At the finalisation of the gateway there will be an assessment of the traffic light colour. In answer to your earlier question, I'm advised that contracts are in place for the work that is needed between now and then.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

REYNOLDS () (): Thank you, Minister. That doesn't actually answer my question, because the department of health does rate its ICT projects every month, and the last one, as I said, went from red to amber in March. So even before the gateway review there would still be a current rating. My question is: is that still amber, or has that gone back up to red, in terms of the risk of the project?

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

There's nothing further I can answer on that, Senator Reynolds. I don't have that advice in front of me. I can say that we are acutely aware of the risks, and there is close management and monitoring of this project. We understand the importance of having things in place by 1 July. I'm really not sure I can provide any more information. I don't have those officials who are managing that project here to assist. I have officials here to assist with the legislation.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I partially accept that, but this is one of the most important implications of this legislation: can it actually be implemented? Clearly, this is going to be very high risk, not only for the department of health and Services Australia to deliver this but also for all of the providers that now have to do system changes. Minister, in relation to support for service providers, you said, as I understand it, that there were going to be more requirements—or was it the other way round? For at-home support providers, do they have more or fewer requirements than the residential care? How will both be supported? You said $10,000. How do they apply for that? When can they apply for it? Also, what guidance will they receive, and when will they receive guidance in terms of the system changes they need to make to be compatible with the changes your departments are making?

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

I answered all of these questions at about 10 past nine this morning. But, to run through that quickly, there are grants of $10,000 that will be targeted at Support at Home providers. The program has a maximum cost of $10 million. It is expected that the Support at Home providers are the ones that will have the most significant change requiring any IT program changes. The guidelines are being finalised for that. It's imminent, so there would be advice coming out, I think, in the next few weeks or so on the grants of $10,000. Yes, they've only been announced this week, so the grant guidelines will have to be done. Obviously, once we've finished with this bill, further advice and information is going out to providers. There's the transition taskforce that's been established, and that will have its first meeting next Thursday. I have no doubt the issues around preparedness, capability, functionality and all of those matters will be considered by the transition taskforce.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

In relation to the transition taskforce, given this is a tier 1 DTA project, which means it's at the highest risk level—of high risk but also high importance for the nation—what is the task force relationship with DTA? Is DTA on this transition taskforce?

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

There will be close cooperation with the DTA. Obviously, DTA are our expert advisers on IT. They provide regular updates to ERC around assurance reviews and what's happening with all IT projects across the government. So, yes, they will be closely involved. They are not on the taskforce, but I read out the membership of the taskforce about eight hours ago. It's a mix of government stakeholders, community sector stakeholders, providers, unions and independent representatives. But if the taskforce were to want advice from the DTA then they would be more than able to ask for that and have the DTA participate.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I am a little surprised. That's why I wanted to confirm that DTA is not part of the task force, given it is a tier 1 project. After you mentioned that this morning, I went and checked. The DTA for the Essential aged care information and communication technologies system maintenance and enhancements (Future Aged Care ICT Platform), their latest assessment in Delivery Confidence Assessments—in how confident DTA is that it can be delivered on time, on spec and in accordance with the procurement rules—was medium to low. Minister, I appreciate your confidence in the advice from the department. But all of the indicators and the experience in delivering these projects, including DTA's and the department of health's own assessments of the ability to go through all of that on such a large program—after you talked about that this morning I had a look at what DTA has said and looked at previous audit reports for health and the Digital Transformation Agency and there is nothing there—given it is a such a short timeframe and their own assessments, what gives you confidence that they can perform something that I don't think has ever been done before in five to six months?

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

I'm the minister responsible for the DTA, so obviously I come at this from that point of view as well and I have asked the DTA—and department of health is aware of this—to work closely with health, on all of their projects, mindful of some of the assessments from the DTA and some of the reports you cite. So yes.

As I said, I am not diminishing the risks or the challenges, but the advice I've been provided is that the system will be functional and ready to go on 1 July 2025. I look forward to standing here and welcoming that when that happens. We are not diminishing it.

Part of the risk rating and risk assessments from both health's point of view and the DTA, and I am not seeking to shift any responsibility here, is getting the legislation finalised. Again, I am not having a go at that point, but that has contributed to some of the reviews and assessments of whether this can be done.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

Thank you, Minister. I think we all in this place hope you are standing up here next year and reporting on the—as to today—impossible task.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Are you capitulating the next election?

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

No, the minister did say 'early next year' and I don't have a crystal ball as to when the election is going to be.

Honourable senators interjecting—

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

Interjections are disorderly.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

But amusing.

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

We're reaching that point.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

We are reaching that point. Again, on that point, I do admire the minister's confidence in the advice that she has, but I would just make the point, in conclusion: with such an accelerated timeframe, history shows that where these projects go wrong in such short timeframes is that ICT procurements often fail to meet value-for-money criteria due to poor governance oversight and lack of compliance with your own CPR rules. There are significant probity risks in ensuring integrity and transparency, with such a compressed timeframe. There's a possibility of lack of competitive processes. I know you have said that there will be contractors engaged. It doesn't leave much time, if they have not yet been engaged, which we haven't got clarity on today.

Just the contract management of such a large project will make it, if the department manages to pull this off—to deliver the system in time to go live on 1 July—it will be I think the first by any government department pulling off such a miracle in such a short period of time.

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

I move amendment (3) on sheet 3075:

(3) The transitional rules may provide that this Act, or any instrument (legislative or otherwise) made under this Act, has effect with any modifications prescribed by the transitional rules.

The effect of this amendment is to put in place transitional arrangements that would allow for the continuation of services provided under the current act that had been not given a service category within the proposed legislation at no additional cost to the consumer to maintain the no-worse-off provision. It allows homecare providers to deliver services at cost rather than at the national efficient price, which remains unknown, and to mitigate the legitimate risk of exit from the sector as a result of the change to Support at Home from Home Care Packages. So I would certainly recommend that the government consider supporting this to be able to provide that guarantee of the no-worse-off principle, which I know that we all want to have embedded into the legislation because we want older Australians to feel comfortable that there will be a no-worse-off provision. These transition arrangements require the government to make sure that there are transitional rules in place to make sure that is effected.

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

The government will not be supporting this amendment. We're confident the sector will be ready for commencement of the new Aged Care Act on 1 July 2025. The new system needs to commence on that date, and this amendment could prevent that from happening. The implementation of a separate transitional service category that includes elements of the old provider-focused 1997 Aged Care Act would affect the entire architecture of the bill and would open constitutional and other legal issues, including requiring a rewrite of the Support at Home rules, which are already public.

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

Is anyone else seeking the call? I will put the question that the amendment on sheet 3075 be agreed to.

Question negatived.

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

by leave—I move opposition amendments (1) to (4) on sheet 3076 together:

(1) Clause 547, page 508 (line 4), before "A disclosure of information by an individual", insert "(1)".

(2) Clause 547, page 508 (line 12), after "a registered provider", insert "who is covered by subsection (2)".

(3) Clause 547, page 508 (after line 19), at the end of the clause, add:

(2) An aged care worker of a registered provider is covered by this subsection if:

(a) the aged care worker has agreed, in writing, to receive disclosures that qualify for protection under this section; and

(b) the aged care worker has not withdrawn that agreement.

(4) Clause 550, page 511 (line 3), omit "paragraph 547(c)", substitute "paragraph 547(1)(c)".

This particular amendment is in relation to who within an aged-care setting is authorised to take disclosures. We heard throughout the inquiry process that many providers were particularly concerned about the whistleblower provisions that were contained in this bill, which referred to absolutely anybody and everybody who is an employee of an aged-care facility. We've seen that the government has had to come back as part of their amendments to change who is actually classified as an aged-care worker, simply because it was such a broad brush. It could have been that the guy that came to clean the gutters was considered an aged-care worker. What we've sought to do is narrow the disclosure provisions so that the individual who is authorised to take the disclosure is more clearly defined within the remit of what type of aged-care worker would be required to take a disclosure.

We do acknowledge in the process that there was some concern expressed by the unions in that they feel that the person would need to make a disclosure to someone that they feel comfortable with. But we also believe, given the seriousness of whistleblower disclosures as opposed to just general disclosures and the legal complications that are involved in whistleblower provisions, that the person who would be taking such disclosures needs to be appropriately trained. The need for everybody in an organisation, down to the window cleaner, to be trained in taking whistleblower disclosures we believed was complete overreach and hence the reason that we are moving this particular amendment. I'll read a comment from a provider:

We don't think it's possible, across Australia, to train thousands of people to take these disclosures and know how to act on them appropriately and swiftly … these are really important disclosures, and the people that take them need to understand very carefully how to manage them appropriately.

We took that advice on, and it is the reason that we have sought to make some changes to these particular provisions in the bill. We also believe that it is really important that, if somebody is feeling uncomfortable and doesn't feel that they are able to take a disclosure, that worker should have the right to say, 'I don't feel comfortable,' or, 'I don't feel that I have the capacity or ability to be able to take a disclosure,' and not have to do so. This is the reason that we're moving this amendment, and I would absolutely commend this amendment to everybody in the House, to make sure that we strike the right balance between making sure that older Australians have got the capacity to make whistleblower disclosures in aged care and making sure that we also have the appropriate training to take such serious disclosures.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

In relation to these amendments, the Greens oppose any watering down of whistleblower protections. The royal commission showed us that people must feel safe to speak up when something is wrong, particularly in a sector like aged care. The widest number of people should be protected by whistleblower protections. This means participants and workers should feel safe to disclose to whomever they feel most comfortable. For these reasons we don't support the narrowing of these protections. We won't support these amendments.

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

We will not be supporting these amendments either. The whistleblower protections under the new Aged Care Act are drafted so as to protect older persons and their families and representatives from victimisation or breach of confidentiality should they make a disclosure to any aged-care worker, acknowledging that older persons are likely to preferentially make disclosures to aged-care workers they trust. It's not clear how a disclosurer would know which workers have agreed and which workers have not agreed to receive whistleblower disclosures.

Question negatived.

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

by leave—Could I have my position recorded, please.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

by leave—Could I have my position recorded as well, as opposed.

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

by leave—I move opposition amendments (1) and (2) on sheet 3150:

(1) Clause 7, page 30 (after line 25), after the definition of System Governor, insert:

telehealth consultation means a consultation conducted (other than in person) by videoconference, telephone or other technology.

(2) Clause 175, page 181 (after line 20), after paragraph (2)(a), insert:

(aa) the System Governor determines that the registered provider intends to provide the highest level of clinical care with the available workforce, which may include measures for the support of clinical care by enrolled nurses and through telehealth consultations with registered nurses; or

What we're seeking to do with these amendments is to recognise the shallowness in markets—particularly rural, regional and remote markets—around workforce and make sure that we are providing the best possible care for older Australians within the resources that are available within a community. Of course, nobody wants to see any older Australians not being able to get the care that they absolutely deserve at the highest possible standard, but we are recommending that greater flexibility in the use of care minutes in residential aged care can often deliver individuals fit-for-purpose care that still ensures the highest possible care is delivered.

Just quickly, Minister, I have a couple of questions on this one before we go to a vote. How many aged-care homes have an exemption for 24/7 RNs at the moment?

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

There are 20 services, and there is a registered nurse onsite in aged care 99 per cent of the time.

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

Outside of the exemptions, how many nursing homes themselves are not meeting the 24/7 requirement, excluding the 20 that have the exemption?

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

I don't have that information available, but I'm happy to take that on notice. I do have information that registered nurses are onsite in aged care 99 per cent of the time, across facilities. I would say—just to respond to your moving the amendments—the government strongly opposes these amendments which seek to undermine the recommendation of the royal commission to ensure that every single aged-care home has a registered nurse onsite 24/7. If this amendment were to be successful, we believe it would seriously undermine the broad concept of quality standards, and the fact of having a registered nurse onsite is important for the provision of clinical care to older Australians.

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

I am interested to know, how many nursing homes have applied for a 24/7 exemption and been rejected?

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

I will need to take that on notice too.

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

That is fine. How many nursing homes are availing themselves of the 10 per cent they are now able to use of their uplift from 1 October in terms of the required RN minutes that were supposed to come in on 1 October that are now able to be used as EN minutes? How many nursing homes are using the extra 10 per cent as ENs?

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

I don't think the data is available yet. I'm not sure it has been collected.

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

Is there any consideration being undertaken by the department to expand the 10 per cent?

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

No.

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

Has the department done any analysis around potential pathways through which people who have had a lifetime of lived experience of caring may be able to be streamlined into the care workforce to meet the care workforce demands we know we will have in the future?

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

Obviously, there is the provision of care through personal care workers and then through nursing minutes.

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

We heard throughout the inquiry and through many discussions over the last few years that there is a huge number of people who have spent much of their life caring, so they have extraordinary caring skills, but do not actually have the qualification they would necessarily get through TAFE et cetera. I am wondering if any work has been done around trying to harness that extraordinary workforce? They are often women who have been caring for parents or maybe for a child or someone with a disability et cetera and they no longer find themselves needing to care for that person. They have some of the most extraordinary care skills. Has there been any consideration in trying to find a mechanism through which they may be able to be harnessed to deal with the current workforce challenges we're facing across the entire care sector? It is a broad question. Have we done any work on harnessing those people?

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

I don't believe so. I don't fully understand whether you mean a recognition of prior experience and learning to provide the EN type care. Is that what you are talking about?

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

I just mean as a care worker.

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

Just care work? In terms of personal care workers, I would think most providers are looking to employ people who have experience and skill in providing care to people.

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

I mean, obviously we have a mandated minimum requirement for care workers—certificate III or IV. Has there been consideration in terms of training requirements to fast track access to a group of people who have extraordinary caring skills? Nobody would need to teach them how to care; they would just need for them to understand what is required to work in an environment like aged care. It is a very broad question, whether we have looked at that as an option to be able to supplement our workforce in a speeded-up way, bearing in mind there is a ready-made workforce, particularly women, who sometimes struggle to find work? Has any consideration been given to tap this workforce? It is a very broad question.

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

I am missing the point a bit, but you don't have to have a certificate III or IV to be a personal care worker, so I would think there is ample opportunity for individuals with those skills to seek employment, not just in aged care, but across the care economy.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I think what we're to get to here is: is there a way to fast track these people because they already have experience? Do we have a fast-tracked way of getting them through rather than them having to sit through their certificates? If you are coming out of a job but you don't actually hold a qualification, we fast track people. We do shorter courses. I think that is what we are trying to nail down here.

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

Yes, but my point is that they don't have to have a certificate to be a personal care worker. That's probably a matter for the Minister for Skills and Training about recognition of prior learning for equivalency of a cert III or IV. I'd have to raise that with the Minister for Skills and Training.

Question negatived.

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

Opposition recorded.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Can I make my statement known that I oppose the amendment?

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

Yes, we've recorded that you oppose it. You don't need to make it known, because I called it for the noes.

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

I move the amendment on sheet 3081:

(1) Clause 284, page 281 (line 32) to page 282 (line 2), omit subclause (5).

In moving this amendment I draw to the attention that, even though it wasn't a recommendation of the Aged Care Taskforce, agreement for additional services must not be made until after a resident has moved into aged care. Whilst, on the surface of this, it probably appears to be quite innocuous in terms of its recommendation, the coalition or the opposition is really quite concerned that this may have an adverse effect on future builds, particularly in providing the services that some Australians may well want.

We're not talking about additional services like a glass of wine with dinner. We're talking about additional services that are structurally built into the actual build of the facility. It might be a hydrotherapy pool, a gym or a swimming pool. There are a whole heap of services that many aged-care providers seek to provide to their residents on the basis that they are of additional cost to the resident, and the resident has a choice as to whether they go into a home with those additional services.

We think that this should be removed from the bill until such time as it is more thoroughly investigated. It was another addition to the bill that the sector hadn't been fully consulted on. We spoke to a lot of older Australians who were living in aged-care homes. Some of these homes are quite extraordinary, and the people who live in them obviously have to have quite significant wherewithal to afford to do so. But they've worked hard all their lives and can afford to do so, and should be able to make those choices during their aged-care journey.

We think this has not been thought through very well. We're not suggesting that there may not need to be changes in relation to this, but it hasn't been thought through. There was a divergence of views around this, and we think that the government should remove this particular provision out of the act. It can always be reintroduced at a later date, after further consultation has taken place on it, but we would seek for the government to remove it. It has clearly been underconsulted, and nobody has taken into account the unintended consequences over the choice and control of older Australians.

I reiterate, once again, that the main purpose of this bill was to give choice and control to older Australians. By doing this, the unintended consequence is that we may well be taking away some of that choice. If providers are not building the facilities in the way that they would build under the existing arrangements, it will deny older Australians the ability to access some of these additional facilities that are currently being provided, because the government has not thought through the consequences of this particular provision.

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

The government also strongly opposes this amendment. The protections are important for older Australians who have shared lived experience of feeling pressured by providers to agree to an additional service fee in order to secure a place in a facility, even if they did not want the services on offer. The higher everyday living fee arrangements will prescribe that the fee can only be charged for additional or higher quality items and services, and can only be charged where a person has agreed to, and can, make use of those services. For example, a person who can no longer swallow cannot be asked to pay for a hot breakfast each day. Essential allied health services would not be eligible for a higher everyday living fee, except where a resident wished to use services beyond those considered essential for their care.

Capital items are expected to be funded through accommodation prices, although access fees could form part of a higher everyday living fee. This is a change from the extra services fee, which included a capital component. Providers will be able to provide information about the services offered for a higher everyday living fee to residents before they have entered care to support consumer choice around their preferred facility. This includes advertising higher everyday living services available at a facility on My Aged Care.

Question negatived.

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

by leave—I ask that the opposition's position be recorded.

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

We will record the opposition's support.

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

by leave—I move opposition amendments (1) to (4) on sheet 3090 together:

(1) Clause 152, page 161 (line 15), before "It is a condition", insert "(1)".

(2) Clause 152, page 161 (line 17), before "comply with the worker screening requirements", insert "subject to subsection (2),".

(3) Clause 152, page 161 (line 19), before "ensure that aged care workers", insert "subject to subsection (2),".

(4) Clause 152, page 161 (after line 28), at the end of the clause, add:

(2) Paragraphs (1)(a) and (b) do not apply to a registered provider if:

(a) the registered provider has made an application (a worker screening exemption application) to the System Governor for an exemption from the conditions mentioned in those paragraphs; and

(b) the System Governor has accepted the worker screening exemption application.

(3) The rules may prescribe requirements relating to:

(a) the making of a worker screening exemption application by a registered provider; and

(b) the consideration of the worker screening exemption application by the System Governor; and

(c) the acceptance or refusal of the worker screening exemption application by the System Governor; and

(d) the review of a decision by the System Governor to accept or refuse the worker screening exemption application.

(4) Without limiting subsection (3), rules made for the purposes of that subsection may prescribe:

(a) how a worker screening exemption application is to be made by a registered provider; and

(b) the information that must be included with the worker screening exemption application; and

(c) the matters the System Governor must take into account when considering the worker screening exemption application, including (without limitation):

(i) the geographical location of the registered provider; and

(ii) the available workforce in the local community of the registered provider; and

(iii) whether the registered provider has taken reasonable steps to provide the highest level of clinical care with the available workforce.

These particular amendments came from some very, very strong testimony that we received during the inquiry. They relate to worker screening provisions, and I will put on the record that there is nothing more important than making sure that the workers who are working in our aged-care sector are fit and proper people to be working with some of Australia's most vulnerable people: those people who are in aged care.

The committee heard evidence that the worker screening requirements that were prescribed in the bill could have quite significant consequences in Indigenous communities. Mr Bricknell, the chair of the Aged Care Workforce Remote Accord, made a very compelling statement during his testimony. He said:

… in remote areas, the discretion to make final decisions regarding worker screening should remain with local service providers. This is essential for maintaining culturally safe care, especially for First Nations elders, where community knowledge and lived experience play a significant role in determining who is best suited to provide care.

It is for this reason that coalition senators are recommending that the screening provisions be amended to ensure that there is a level of flexibility, particularly as it relates to Indigenous communities. We believe that there need to be very significant protections around this flexibility and discretion. That's why we're saying the system's governor should be the one who makes the determination in relation to any exemptions in relation to worker screening.

As I said in my opening remarks on this amendment, we need to make sure that the people who are dealing with older Australians are absolutely fit and proper to do so, but we also need to make sure that we recognise the sometimes quite unique needs and circumstances that are found, in particular, in remote communities, as was very clearly highlighted by Mr Bricknell in his evidence. I would highly recommend that the government consider availing itself of this provision, which gives a very, very strictly controlled flexibility that would enable the government to make determinations that may not be strictly in line with the worker screening provisions contained in this bill. This would allow the flexibility to support the culturally appropriate use of staff, particularly in Indigenous communities.

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

The government does not support this amendment. Worker screening is important to protect the health and safety of older people. It's also important to professionalise the aged-care workforce. Worker screening will ensure that people who've been convicted of murder and attempted murder, serious or sexual assault against a vulnerable person, child pornography, abduction or bestiality will be excluded from working in aged care. The government believes it would never be appropriate for individuals who have committed such offences to work in aged care. The provisions in the bill are designed to align with the NDIS worker screening scheme to maximise safety for consumers and mobility between sectors.

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

I want to make it very, very clear: the coalition absolutely does not support what the minister has just stood up and said, and that is not the intent of this amendment in any way, shape or form. We absolutely support the exclusion of people with a criminal history, as outlined by the minister. I'm somewhat offended that she would suggest I would be thinking they would be fit and proper people to work in aged care. This particular provision is nothing more than allowing the systems governor within the department to make an exemption if an Indigenous community thinks it is culturally appropriate for them to give an exemption to the person they would like to work in their community. Consideration is given to additional circumstances put forward to the systems governor. I absolutely want to put on the record that the coalition does not support and would never support the suggestion the minister just made that the type of people she outlined are people we would think appropriate to work in aged care.

The opposition record our support for the amendment.

Question negatived.

by leave—I move amendments (1) and (2) on sheet 3082 together:

SHEET 3082

(1) Clause 58, page 80 (line 5), omit "; and", substitute "; or".

(2) Clause 58, page 80 (after line 5), after subparagraph 58(a)(iii), insert:

(iv) has care needs that can be met in the most effective way by a funded aged care service; and

What this seeks to do is reflect evidence we heard throughout the hearing in relation to people who are under the age of 65, and this has particularly been driven by evidence around people with early onset dementia. We know that the great bulk of specialised dementia care services, staff and resources are currently in our aged-care homes. I think it is appropriate to give a shout out to some of the most extraordinary dementia care institutions in Australia's aged-care facilities, particularly organisations like HammondCare, who have actually specialised in dementia care. This is where the resources exist for people with dementia to get the best possible care, because these are the places where people have the skills and experience to be able to manage it.

I will just put on the record a personal experience of a friend of a very, very close friend of mine, whose husband, at the age of 61, has been suffering from early onset dementia for the last nine years. He is still at home because of a mechanism that prevents him from being able to go to aged care. She is caring for him at home with quite an amount of support, but she knows the best care for him will be in aged care. She is seeking for him to be able to go into aged care, because she believes the care could be improved on by his being able to go into aged care. As this bill is currently written, he would potentially be denied access into aged care. We think that, under circumstances where it can be absolutely demonstrated that the care needs of the individual under the age of 65 can be met most effectively and efficiently and in the way the person and the carer wants those to be met through a funded aged care service—and only under that particular and extreme circumstance—people under the age of 65 should be granted access to aged care.

It is in the interest of the unfortunately many Australians now with early onset dementia—we're seeing an increase—receiving the best possible care that we provide this very strict and tight exemption criteria to enable those people to access the best possible care that they can, because we know that care is currently embedded in our aged-care facilities.

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

I was trying to get some advice, because I understand that situation. In a previous life, back in the nineties, I was part of a team that worked to get young people out of nursing homes where it was inappropriate. So I do understand this issue and absolutely the appropriateness of an aged-care facility for some who require that high-level care. I guess, since that time, we now also have the NDIS to provide support to people under the age of 65. We don't support this amendment, Senator Ruston. We believe it would reverse measures taken since the royal commission to limit entry of younger people to residential aged care. The intent of the bill is that there would be prescribed categories for those under the age of 65 accessing aged care through the aged-care assessment process, also with the requirement that the individual has been informed of alternative service options and elects to be provided with aged-care services. Our view is that it is necessary to provide clarity on the categories of people who may be considered for younger entry to aged care and that this clarity both provides certainty to those individuals about the eligibility and avoids the current situation where, in the absence of a legislated definition of exceptional circumstance, aged care can become a service of last resort in situations where it's not appropriate.

Question negatived.

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

by leave—could we have our position recorded.

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

Your position is recorded.

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

by leave—I move amendments (1) and (2) on sheet 3091 together:

(1) Clause 143, page 157 (after line 16), after subclause (2), insert:

(2A) The Commissioner must not impose a condition unless the condition is of a kind that is prescribed by the rules.

(2B) Subsection (2A) does not apply to a condition covered by subsection (3).

(2) Clause 143, page 157 (line 17), omit "The conditions may include, but are not limited to,", substitute "The conditions covered by this subsection are".

These are the final amendments that the opposition will be moving in relation to this significant package of reform. The reason that we're seeking to do this is that, during passage of the bill through the necessary procedures through this place, the Scrutiny of Bills Committee raised some quite significant concerns about the powers of officials to create offences that are the subject of severe penalty. Most particularly, the bill actually delegates the power to the Aged Care Quality and Safety Commissioner to make conditions of registration and the power to impose penalties in addition to those authorised by the parliament. It also appears, as it's currently written, that there will be no requirement for the commissioner to provide evidence of the breach of the condition of registration.

Coalition senators are very concerned, as clearly was the Scrutiny of Bills Committee, that powers of this nature undermine the sovereignty of the parliament. We cannot have people who are working in government agencies making decisions around actions that are likely to incur severe penalties without them firstly having a reason to do so, but we also believe the sovereignty of the parliament is paramount and that anything that is going to attract a severe penalty requires the oversight of the parliament. What we've sought to do with this amendment is to make sure that any of the conditions that are imposed are of a kind prescribed in the rules and that they cannot be imposed without the scrutiny of this parliament by some form of instrument or regulation. I highly commend these amendments to the chamber because I don't think that any of us in this place want to undermine the sovereignty of this parliament.

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

Thank you, Senator Ruston, you've convinced me, and the government will be supporting this amendment.

Question agreed to.

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

Now that we're at the end of the consideration of amendments, I just want to put on the record that this bill is very important. The reason that the opposition has been keen to support it—despite the fact that we obviously have outlined our many concerns around the errors, the inadequacies and the shortfalls of this bill—was that the most important thing was to make sure that older Australians got certainty around the framework through which they're going to receive their aged care going forward. The choice, control and power of how they receive their aged care going forward are now—hopefully, with the passage of this bill in a few minutes time—going to be vested in the hands of older Australians from 1 July 2025. That was such a significant recommendation of the royal commission. However, I want to put on the record that we still hold grave concerns that many parts of this bill are going to still have unintended consequences. We put on the record that we're still very concerned about the government's preparedness to be ready in time for a smooth transition that will enable the sector to meet the demands of older Australians in a way that we think is appropriate. Obviously the dignity of the care that older Australians receive is absolutely paramount in everything that I think everyone in here wants to achieve.

We're pleased with what we have been able to achieve, through our good-faith negotiations with the government over the last few months, despite being shut out of negotiations initially. We very much welcome the opportunity to have worked with the government over the last few months. I put on the record that Minister Mark Butler has been fantastic in his engagement with the opposition to make sure that we could get this bill through this place to provide that certainty to older Australians.

We were very pleased that we were able to achieve a number of changes that we think have made this bill better, most particularly to make sure that we delivered a fairer deal for older Australians other than they were previously going to get, particularly around things like grandfathering, putting in place caps, making sure that taper rates were not so steep as to be really impactful on Australians and making sure that we got a fairer deal for rural, regional and remote Australia. That's most particularly in the $300 million of additional funding that will made available to rural, regional and remote aged-care homes for capital grants, for upgrades and for new builds, understanding that it's very difficult to find the financial wherewithal to be able to build new facilities in rural, regional and remote Australia. We were also pleased with the uplift in the AN-ACC funding that came through in October so that modified Monash areas from 3 to 7 have received significant increases in their AN-ACC funding, recognising the financial impact of shallow markets.

We will continue to prosecute this bill. Today is only the first step of the passage of this bill. We know there are still another three tranches of rules to come through that require scrutiny, and, as is often the case, the devil will be in the detail. We will continue to scrutinise this delegated legislation as it comes through. We'd also like to thank the hundreds of people who put in submissions to the inquiry. Those submissions were immensely helpful. I say to many of you who did that that many of the amendments that were successfully achieved today—whether they were put forward by the government, the opposition, the crossbench or the Greens—have often been as a result of the evidence that you put forward and the testimony you provided. To those of you that actually came to the hearings—once again, a shout-out to Hannah and all the other lived-experience witnesses who put their real-life experience on the record—we thank you for that. Hopefully this bill is slightly better as a result of the evidence that you have given.

In saying that, the opposition will be supporting the passage of this bill because we fundamentally believe that older Australians need the certainty of a rights based act. That's what we will be supporting.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

On the amendment that we just passed: I neglected to ask that the Greens opposition to 3091 be recorded. I seek leave to have the Greens opposition recorded.

Leave granted.

With the failure of our earlier amendments to re-insert the criminal penalties and to take out the unfair funding chapter, we won't be supporting this bill.

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

I won't delay the Senate. I accept that it has been a long day and that people are wanting to get away, but I would just like to place on the record my thanks to the colleagues, the Senate, for such intense scrutiny of this bill and work over the last months on the bill, including negotiations with the opposition. This is significant reform. For many it has been years of work. In this place we pass legislation that changes the lives of individuals, and this law will be one of those. I am hopeful, and we are already seeing the changes that have been made since the royal commission's report on improving the aged-care system. It is no longer a system described as one of neglect; it is person centred, is rights based and provides new standards of care and choice for individuals who use it.

I acknowledge the role of the opposition in supporting this bill. It is hard to progress reform in this country. It's not an insignificant reform and it requires compromise; I think that has been reached, through many intense sessions of negotiations! I earlier acknowledged the Senate committee. The Senate committees do incredible work. The number of hearings, submissions and destinations that committee went to in a short period of time should be acknowledged. I thank Senator Marielle Smith, Senator Urquhart, Senator Kovacic and others who attended those hearings.

I acknowledge the department, particularly the officers here today who have done an incredible job advising me and supporting me so that I was in a position to answer questions and who have worked tirelessly for a long time in the area of improving aged care. I also acknowledge the Aged Care Taskforce; I know the minister would want me to acknowledge them and the work they did. They put their shoulders to the wheel to provide us with a blueprint for legislative reform.

I acknowledge the ministers. Minister Anika Wells has led this reform. She is an incredible, competent and capable minister with a very bright future, and the fact that she, along with her senior ministerial colleague, Minister Butler, has been able to land this reform is not an insignificant achievement in her career.

Overall, to all of us who participated in this debate: we have done good work today to make sure that this bill will pass. A new aged-care system will be in place that has older Australians front and centre and, importantly, provides a sustainable pathway for aged-care provision into the future. Thank you to everyone.

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

The question now is that the bill, as amended, be agreed to.

A division having been called and the bells being rung

The TEMPORARY CHAIR: Senator Waters has requested to cancel this division.

Bill, as amended, agreed to.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

by leave—I ask that the Greens' position of 'no' be recorded.

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

The Greens' position, of 'no', is recorded. The question now is that the bill be reported.

Bill reported with amendments.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

by leave—I ask that the Greens' position of 'no' be recorded.

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

We will record the Greens' position of opposing.

Report adopted.