Having received strong support from providers, peak bodies, advocacy groups, older people, families, carers and others during consultation, the Inspector-General of Aged Care Bill was introduced on Parliament on 22 March 2023. Now passed, the Inspector-General of Aged Care Act 2023 (the Act) came into effect on 16 October 2023, establishing both the role of the Inspector-General of Aged Care (Inspector-General) and Office of the Inspector-General of Aged Care (OIGAC).
Ian Yates AM has been appointed as the acting Inspector-General of Aged Care until an official appointment is made.
The purpose of the Inspector-General and OIGAC is to identify systemic issues and enhance oversight within the sector. Legislators hope that the Inspector-General will ensure ongoing improvement in the aged care system and build the confidence the public has in the ability of the sector to meet the needs of older Australians, their families and their carers.
The Inspector-General has been granted significant high-level powers to obtain information, monitor, report and advise on matters to support them in their function. While there may be some additional administrative burden on aged care providers in cooperating with the enquiries of the Inspector-General, the direct impact is expected to be quite limited.
The Inspector-General’s Functions
The Inspector-General’s functions broadly include:
- providing oversight on the implementation of reforms responding to the recommendations of the Royal Commission
- monitoring and investigating the Government’s administration, governance and regulation of the aged care system
- identifying and investigating systemic issues within aged care through independent reviews; and
- reporting on its investigations and providing recommendations for improvement to both the Minister and Parliament.
The Inspector-General will oversee and review the Government’s role within aged care and identify the systemic issues. While the Inspector-General will oversee the Government’s administration of complaints, its functions are high-level and do not allow it to investigate individual complaints and actions. The Inspector-General will remain independent and at arms-length from other entities to support its effective, impartial and transparent oversight of the system.
The Inspector-General’s Powers
The Royal Commission and Parliament noted that access to reliable information was key to the Inspector-General’s role. To help it perform its functions effectively, the Inspector-General has been granted power to:
- gather information
- protect those who assist the Inspector-General; and
- penalise those who may obstruct its functions.
Not all information sought by the Inspector-General will be by compulsion; the Inspector-General may invite anyone (directly or broadly) to make submission in relation to a matter being reviewed.
If the Inspector-General has reason to believe that a person or entity holds information that is relevant to one of its functions, the Inspector-General may compel that person or entity to provide the information. This power is broad and does not limit the Inspector-General to only seeking information from Government entities. Information protected by legal professional privilege, secrecy provisions (with some exceptions), or information that is considered sensitive must still be disclosed to the Inspector-General, however this information may be heard privately. Failure to comply with a request from, or providing false or misleading information to, the Inspector-General is an offence under the Act.
Protections that may be offered by the Inspector-General are extensive to allow full and frank disclosure. These protections include:
- where disclosure may breach legal professional privilege or be self-incriminating, the information cannot be used against the individual in a civil or criminal proceeding
- the identity of individuals providing information may be protected
- protections against victimisation (including threats) for people that have, or may have, assisted the Inspector-General
- immunity against civil, criminal or administrative liability (including disciplinary action) for making a disclosure
- protection from contractual remedies or terminations that may otherwise be exercised against a person due to a disclosure where it may otherwise be a breach of contract; and
- protection against defamation proceedings resulting from a disclosure.
Significant penalties may be imposed on anyone who:
- contravenes a protection offered by the Inspector-General
- uses or discloses information obtained by the Inspector-General in an authorized way.
How Will This Affect Aged Care Providers?
The establishment of the Inspector-General is one of many changes that are currently underway to improve the aged care sector following the Royal Commission. While the functions and powers are targeted at providing oversight, accountability and transparency to the aged care system, the direct effects on providers will likely be limited. That said, some providers have expressed concerns that providing information to the Inspector-General will create an increased administrative burden.
Providers should familiarise themselves with what obligations they may have to disclose information to the Inspector-General, even where information is sensitive or protected under other laws. Providers should ensure that appropriate internal procedures are in place to escalate and respond to requests from the Inspector-General.
Given the high-level nature of the functions and powers of the Inspector-General, it is unlikely that there will be other significant direct effects on aged care providers. The purpose (and likely effect) of the Inspector-General will be more indirect, by guiding systemic changes in the aged care system.
