Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I present Delegated legislation monitor: monitor 3 of 2026, together with ministerial correspondence, and move:

That the Senate take note of the report.

This monitor reports on the committee's consideration of 16 legislative instruments registered between 24 December 2025 and 2 January 2026. In this monitor, the committee has also concluded its examination of two instruments.

The first instrument that the committee concluded its examination of is the Aged Care (Consequential and Transitional Provisions) (Aged Care System Modification) Rules 2025. This instrument directly amends the Aged Care Act 2024 and the Aged Care Rules 2025 to, among other things, allow certain determinations to be corrected if they are deemed to be incorrect and to extend certain notice requirements. The committee is required under Senate standing order 23(3)(l) to scrutinise any legislative instrument that amends or modifies the operation of primary legislation in this way. In this instance, the committee's concerns were further heightened, given that the instrument amends the Aged Care Act to insert new rule-making powers which the instrument then relies upon to make further changes to delegated legislation.

In monitor 1 of 2026, the committee sought advice from the minister as to why it was considered necessary and appropriate for the instrument to directly amend the Aged Care Act 2024. The minister advised that this approach was necessary to quickly and efficiently address unforeseen issues that may arise during the transition to the new aged-care framework. The minister also emphasised that this approach was necessary to secure continuity of care for older Australians, with the instrument seeking to address issues relating to natural justice rights for asset determinations, dates of effect for variations to individual contribution rates for Support at Home and the automatic variation of individual contribution income and asset determinations. The minister also highlighted a number of safeguards on the exercise of powers, including that any instruments made under those powers may be reviewed by the Senate Community Affairs Legislation Committee.

The committee thanks the minister for his response and for his engagement on this matter, and has concluded its consideration of this matter in monitor 3 of 2026. However, in monitor 3 of 2026, the committee also noted its general concerns with the use of delegated legislation to directly amend primary legislation, and stated that instruments that take this approach will, without a thorough justification, be of significant concern to the committee. The committee will continue to consider this important matter in its scrutiny of future investments.

A second instrument that the committee concluded its examination of is the Aged Care Rules 2025. This instrument sets out requirements relating to the new aged-care framework, including care and service obligations, pricing and payment arrangements, complaints handling, compliance and enforcement processes, and aged-care provider registration requirements.

In monitors 8 of 2025 and 1 of 2026, the committee raised a number of concerns in relation to the automation of administrative decisions, consultation, the incorporation of non-legislative documents, the conferral of broad discretionary powers, privacy, coercive powers and the availability of independent merits review. In a previous tabling statement, I thanked the minister for his positive and constructive response in relation to those concerns. I repeat, on behalf of the committee, our thanks in relation to the committee's most recent correspondence and note the proactive way in which the minister, the minister's office and the Department of Health, Disability and Ageing engaged with the committee's scrutiny concerns. Given the significance of the committee's scrutiny work, the collaborative and cooperative nature of the minister's engagement and the forthright advice provided is in the national interest and is a positive example for future engagement with this committee.

In his most recent correspondence with the committee, the minister has undertaken to update the explanatory statement for the Aged Care Rules to include key information provided to the committee relating to automated decision-making, consultation, the incorporation of documents, coercive powers, clarity of drafting, privacy and the availability of independent merits review. The minister has also undertaken to make amendments to the Aged Care Rules to address committee concerns in relation to the incorporation of documents and the availability of independent merits review.

On behalf of the committee, I thank the minister for his attention to these matters. I also take this opportunity to continue to raise awareness of the committee's scrutiny principles and expectations outlined in Senate standing order 23. In previous tabling statements I have discussed scrutiny principles (a) to (h), and in my next contribution I will discuss principle (i). With these comments, I commend the committee's Delegated legislation monitor: monitor 3 of 2026 to the Senate.

Question agreed to.