Prime Minister Scott Morrison has announced the Government’s decision to ask the Governor General to establish a Royal Commission into the aged care sector.
This is not the first government investigation into aged care in recent history.
What is a Royal Commission?
A Royal Commission is a public inquiry established under the Royal Commissions Act 1902 (Cth) (“Royal Commissions Act”).
A Royal Commission is established to enquire into matters which relate to or are connected with the peace, order and good government of the Commonwealth, or any public purpose or any power of the Commonwealth. Whilst capable of inquiry into a broad range of subject matter, once established, a Royal Commission is confined to its terms of reference.
A Royal Commission has coercive information gathering powers, including the power to:
- summon witnesses to give evidence and/or produce documents, including on oath or affirmation;
- authorise a member of the Commission or the State or Federal Police to obtain search warrants;
- issue a warrant for the apprehension and detention of a witness who fails to comply with a summons.
These powers expressly detract from the usual protections which (in other settings) might apply to self-incriminating statements and/or documents the subject of legal professional privilege.
The Royal Commissions Act creates various offences, and non-compliance with the Act carries the risk of heavy fines and even imprisonment.
Terms of reference
The Terms of Reference are yet to be determined. The Prime Minister’s media release states that the Royal Commission is expected to cover:
- The quality of care provided to older Australians, and the extent of substandard care;
- The challenge of providing care to Australians with disabilities living in residential aged care, particularly younger people with disabilities;
- The challenge of supporting the increasing number of Australians suffering dementia and addressing their care needs as they age;
- The future challenges and opportunities for delivering aged care services in the context of changing demographics, including in remote, rural and regional Australia;
- And other matters that the Royal Commission considers necessary.
The drafting of a Royal Commission’s terms of reference is fundamental to its success. Terms of reference that are too wide can lead to unnecessary cost, complexity and delay. Conversely, carefully defined terms of reference may limit the opportunities for ‘wide ranging investigations’ without the legal safeguards associated with investigations by traditional law enforcement agencies.[1]
The Prime Minister has foreshadowed that the terms of reference will include ‘any other matters that the Royal Commission considers necessary’. Given the obvious bearing it will have on the inquiry, finalisation of the terms of reference for the aged care Royal Commission will therefore be of great interest to the sector and those the sector cares for.
How will the Royal Commission be different to other recent inquiries into the aged care industry?
In recent times, the Tune Review and the Carnell/Paterson Report have both made recommendations for changes to the Commonwealth aged care regulatory system.
- The Tune Review was the legislated review. As part of the aged care reforms contained in the Aged Care (Living Longer Living Better) Act 2013, there was a requirement for a comprehensive review of the impact and effectiveness of the changes and to make recommendations for future reform. The result was a report (handed down in September 2017) which made a series of recommendations covering access to aged care, workforce matters and fees and charges. The Commonwealth agreed to consider all recommendations except those relating to: the use of a person’s home in means testing; and annual and lifetime caps on income-tested home care fees and means-tested residential care fees.
- The Carnell/Paterson Report was commissioned by Minister Wyatt in May 2017 in response to incidents at Oakden Older Person Mental Health Service. Carnell and Paterson (both of whom had experience as regulators) were appointed as independent reviewers. The purpose of the review was to examine why the regulatory processes in place had not identified Oakden’s systemic failings, and to advise what improvements to the regulatory system would increase the likelihood of immediate detection and swift remediation by care providers. The Carnell/Paterson Report underpins a new single set of Aged Care Quality Standards which will commence 1 July 2019, and the creation of the Australian Aged Care Quality Agency.
Whatever the perceptions of the Royal Commission, it will necessarily differ from those inquiries that have come before it. First, its terms of reference (although currently not finalised) will differ from those seen previously. Secondly, the coercive powers inherent in a Royal Commission will also add an additional dimension that the aged care industry hasn’t yet faced. We also anticipate that there may also be a general unwillingness to participate in the Commission voluntarily; and certainly there can be merit in waiting until summoned before one gives evidence to a Royal Commission, in order to be able to rely on protections under the Royal Commissions Act. Finally, whilst concrete actions and responses to the final Royal Commission can of course not be predicted with genuine accuracy, it should be noted that under the Royal Commissions Act, a Commission can refer suspected contraventions of the law to an appropriate regulator even before the Commission has finished its inquiry.
A final distinguishing factor of the aged care Royal Commission will no doubt be the cost. The Royal Commission into the Building and Construction Industry (conducted between 2001- and 2003) estimated that at the date of publishing its final report, its costs had come to appoximately $60 million.[2] By way of illustration of just how expensive a complex royal commission can become, the Commonwealth has budgeted $434.1 million over four years to fund the ongoing Royal Commission into Institutional Responses to Child Sex Abuse.[3]
If you would like any further information or would like advice as to what if any steps your organisation should take with respect to the Royal Commission, please do not hesitate to contact us.
[1] See Australian Law Reform Commission, ‘Making Inquiries: A New Statutory Framework’ (October 2009).
[2] ‘Final report of the Royal Commission into the Building and Construction Industry‘.
[3] Australian Government, ‘Budget Paper No. 1 2013-2014’, url: <https://www.budget.gov.au/2013-14/content/bp1/html/bp1_bst1-16.htm>
