The Transition Bill relates to minor mechanics required as part of the establishment of the Inspector-General role and the Office of the Inspector-General of Aged Care (for example, permitting the transfer of records held by the Interim Inspector-General to the Inspector-General on the commencement of the I-G Bill), and accordingly the focus of this update is on the I-G Bill itself rather than the Transition Bill.

We have conducted a side-by-side review of the I-G Bill against the exposure draft. Although there are some changes, in substance the I-G Bill which is now before Parliament is materially the same as the exposure draft in December 2022.

Commencement

Should the I-G Bill pass Parliament and receive Royal Assent prior to 1 July, it will establish the Office of the Inspector-General of Aged Care on 1 July 2023. If the I-G Bill receives Royal Assent after 1 July 2023, it will commence on:

• a day to be proclaimed; and
• if it has not commenced 6 months after the date on which it receives Royal Assent, the day after that six month period ends.

The I-G Bill has been referred to the Senate Community Affairs Legislation Committee for inquiry, with a report due by 28 April 2023. The I-G Bill will not pass Parliament before this time.

The presence of a 1 July 2023 commencement date in the I-G Bill suggests that the Government intends for the I-G Bill to pass by that time. There is however always a chance that it will not pass, and we will keep you up to date if that appears likely, closer to 1 July 2023.

Practical implications of the Office of the Inspector-General of Aged Care

The objects of the I-G Bill, which are to:

'drive greater accountability and transparency of the Commonwealth’s administration of the aged care system, and facilitate positive change for older Australians, by:

(a) establishing an independent Inspector-General of Aged Care to monitor, investigate and report on the Commonwealth’s administration of the aged care system, including by identifying systemic issues through independent reviews, and making recommendations for improvement; and

(b) providing oversight of the Commonwealth’s administration of complaints management processes across the aged care system; and

(c) establishing a framework for the Inspector-General of Aged Care to report publicly to the Minister and Parliament on the Commonwealth’s administration of the aged care system.'

The broad nature of these objects are borne out in section 10 of the I-G Bill, which sets out the Inspector-General's functions. These functions are high-level (for example, the Inspector-General is not permitted to investigate a single or specific exercise of power under the aged care legislation) and is solely directed towards monitoring, investigating and reporting on the Commonwealth administration of aged care laws, and associated activities, and the administration of aged care funding agreements and associated activities. Further, the Interim Inspector-General of Aged Care, Mr Ian Yates AM, has published a statement on the Department of Health and Aged Care's website, which confirms the intended scope of the Office of the Inspector-General of Aged Care's functions.

In our view, it seems unlikely (given the scope of the Inspector-General's functions) that the creation of the Office of the Inspector-General of Aged Care will have a significant impact on approved providers of aged care, and their operations. The Inspector-General has a clear scope of responsibility, which relates to oversight of the sector as a whole, and the Commonwealth's administration of the aged care sector as well as complaints management of the aged care sector. Given the 'high level' nature of the scope of the Office of the Inspector-General, it seems unlikely that the Inspector-General would become involved in day-to-day issues (for example, SIRS complaints).

It is possible however, as part of the Inspector-General's functions, that approved providers may need to engage with, and provide information and assistance to the Office of the Inspector General to support them to carry out their role. The Inspector-General has broad powers under the I-G Bill to compel the provision of information and cooperation in investigations and it is not hard to foresee that the Inspector-General may seek the provision of information from approved providers to assist with their investigations. The Inspector-General may also seek submissions in relation to its investigations, and in order to ensure that Inspector-General is able to properly carry out its functions (and as a result, lead to a better administered and functioning aged care sector) it may be in the best interests of an approved provider to prepare and provide a submission in relation to such an invitation, which we acknowledge will create an associated administrative burden.

It may be that in the early stages of the Office of the Inspector-General commencing operation, particularly when receiving a request for information or considering providing a submission, that an approved provider may need to seek legal advice to facilitate this. The need for bespoke legal advice will likely be reduced as approved providers operationalise how to respond to requests for information and submissions to the Office of the Inspector-General of Aged Care.

Next steps

We will continue to monitor the I-G Bill's passage through Parliament, and will update you when it has passed.

In the meantime, approved providers should treat the 1 July 2023 projected commencement date as the likely date on which the Office of the Inspector-General of Aged Care will commence operation. Approved providers should ensure that they have updated policies and procedures regarding requests for information to ensure that should a request for information eventuate from the Office of the Inspector-General of Aged Care, front-line staff can identify the request and it is appropriately escalated, and the approved provider is equipped to respond to the request.

Please let us know if you would like to discuss, or we are able to assist in any way.