The inherent problems between Australia’s Aged Care Principles legislation and the wider Australian Aged Care Community

This is an unfathomable story about the sadness and debilitating experiences of one of my close family members [Freeman]. This is within the Australia wide aged care beneficiary community.

It is about his relationship with his Aged Care Provider, the Aged Care Quality and Safety Commission, the Aged Care Act 1997 [ACT] and the current Federal Member of Parliament [Wells]. Minister Wells is the legislative overseer of these various information sharing relationships.

The 2018 Royal Commission into Aged Care demonstrated that there is significant shortcomings in the relationships between Aged Care Providers, their Aged Care Beneficiaries, the Aged Care and Quality and Safety Commission and the Aged Care Act [1997]. The Aged Care Principles form a critical part of this act. The Office of the Commonwealth Ministry of Health and Aged is embraced within this wide relationship.

I believe that if you are willing to study the informational references cited below you might come to the conclusion that these alleged shortcomings are a significant understatement. I also believe that some readers may wonder how on Earth such a “messy” inter-institution relationship has been allowed to come to pass in the first place. They may also lace these words to the notion of gross incompetence and indifference into their lines of consideration.

As you reflect upon the information contained in this post it is my hope that you not only look further into the allegations that the post is referring to but also take action. This is action via your local Federal Member as well as other networks and channels that you feel is appropriate. It is the author’s opinion that the health and welfare of the wider aged care community [more especially it’s beneficiary members] deserve this. I also believe that the person i am referring to today deserves a fairer go as well. I am principally writing on his behalf. He has submitted a letter of complaint to the Disability Royal Commission.

I submit two extracts from reports that were forwarded to the Health and Aged Care Minister in respect to these matters. These are in March 2023 and October 2021 respectively.

Extract 1:



31 MARCH 2023


“….Letter of Transmittal

The Hon Anika Wells MP

Minister for Aged Care

Parliament House ACT 2600

Dear Minister

Following my appointment to conduct an independent capability review of the Aged Care Quality and Safety Commission (the Commission), I am pleased to provide you with my report and recommendations on how the Commission’s capability can be improved to better support its regulation of the aged care sector.

In undertaking this review, I have consulted with stakeholders across the aged care sector, including aged care providers and consumers, peak bodies, advocacy groups, the Commission, the Department of Health and Aged Care, other relevant Australian Government agencies and state and territory governments.

The review concludes that the Commission has achieved a great deal in seeking to establish itself as one entity and deliver on its substantively expanded roles and responsibilities. It is clear from meetings and consultation with the Commission’s senior leadership and staff that its’ people are passionate and committed to their work and the goals of the organisation.

The Commission is maturing and has been developing solid strategies across the

range of its functions aimed at strengthening its capability in a period of significant change and major challenges. While the implementation and embedding of these strategies should stand it in good stead going forward, there remain some critical capability gaps in the organisation that require urgent attention. (I emboldened)

While all review recommendations are complementary and important, I consider those recommendations that focus on the key enablers for strengthening the Commission’s strategic, regulatory, leadership, structural, cultural, governance, digital, data and ICT, communications and engagement, and people capability as the most critical and enduring and matter most. These will ensure that the Commission is best placed to deliver the future regulatory framework that will apply when the new Aged Care Act commences on 1 July 2024.

Attached is my completed report.

Yours sincerely

David Tune AO PSM

31 March 2023…”


I was asked by the Minister to assess aspects of the Aged Care Quality and Safety Commission’s (the Commission’s) capabilities and performance. I have done so in the context of assessing the Commission’s strengths, opportunities and weaknesses, and the extent to which these inhibit or enable a high-performing, contemporary, best practice regulator.

I have focussed on the future – what the Commission needs to do to ensure that it can successfully undertake its important role of ensuring the safety and wellbeing of older Australians in the context of the new Aged Care Act.

I have considered the context in which the Commission has had to perform its roles and functions since its inception in 2019, particularly the rapid expansion of Its functions, funding and staffing.

During this time the Commission has faced significant challenges, including the COVID-19 pandemic and natural disasters in some regions.

The Commission has faced significant issues attracting and retaining staff in an environment of staff and skills shortages across the aged care sector and more broadly.

The Commission currently has a staff vacancy rate of 20 per cent which results in capability and capacity deficits. In particular, quality assessor staff are difficult to attract and retain.

In addition to staff shortages, the resourcing of corporate services such as ICT and HR have not kept pace with the growth in functions and staffing needs.

Despite these challenges, the Commission has been able to demonstrate success in a number of areas, including in its implementation of new functions.

I have also noted the additional scrutiny, functions, and challenges for the Commission as a result of the Royal Commission into Aged Care Quality and Safety (the Royal Commission) and the Australian Government’s aged care reform agenda.

I have consulted extensively with providers regulated by the Commission, peak bodies, consumer representatives, and other stakeholders, and staff and leadership from the Commission and the Department of Health and Aged Care (the Department).

In assessing the Commission’s capabilities, I have examined both domestic and international regulatory best practice approaches, trends and evidence.

I have also considered the new Australian Public Service Commission organisational capability framework and the Australian Government’s Regulator Performance Guide to determine what constitutes capability best practice for a modern, high-performing regulator.

I have used these and other relevant elements of best practice as the benchmarks to assess the Commission’s capability:

  • clear purpose and clarity of role
  • strategic and visible leadership, appropriate supporting structure and culture
  • good internal governance
  • accountability and transparency
  • capable people
  • robust and user focused ICT and data systems
  • trust and reputation, and a focus on organisational continuous improvement
  • resourcing
  • regulatory strategy and operating model
  • risk based and data driven
  • cultural capability, and ability to deliver for diverse groups, and
  • effective engagement and communications.

In my view, the Commission is taking important steps to ensure that it evolves into a high performing regulator. There is much to build from, and I commend the work of the Commissioner, her team and staff across the organisation for these steps.

However, it is clear that there is much more to be done.

I believe that the recommendations set out in this report are practical, constructive and achievable, and are essential to enable the Commission to address its capability gaps and meet the requirements and public expectations of the new Aged Care Act.

To become a trusted, high performing regulator, the Commission must as a matter of urgency take action to fix its organisational structure, senior leadership, and internal governance. It needs strategic, visible leadership, and a focus on being engaged right across the sector and community, in an open and transparent way.

The Commissioner must empower senior and executive level (EL) staff and current and emerging leaders and recruit senior executive service (SES) staff with high quality leadership capabilities.

The Commissioner needs to change the Commission’s organisational structure to reduce functional silos, bring together like functions, improve accountability, spans of control and delegation of powers, and the redesign of internal strategic governance arrangements.

Workforce and ICT systems will need a sustained focus. The Commission needs to elevate these functions structurally and recruit expertise at SES Band 1 and EL levels. A major priority will be a new set of internal governance arrangements, with oversight by a new Deputy Commissioner Corporate.

The Commission urgently needs to fix significant problems in its complaints process and Serious Incident Response Scheme (SIRS). This is a huge workload, and the appointment of the new Aged Care Complaints Commissioner must proceed as a high priority.

The complaints system must be urgently reviewed to ensure that complaints are triaged appropriately, that complainants have assurance that concerns are being followed up, and the wider community gain trust that matters of concern to older Australians and their families are getting priority attention. There must be regular and more detailed reporting on complaints and SIRS.

The Commission’s culture internally drives what is experienced externally. Therefore, the Commission must be more open, transparent and accountable. It must share information, engage more openly and work with providers. It must build on its recent good work engaging with consumers and providers but go much further.

The Commission must adopt a far more collaborative approach to shaping and delivering its regulatory responsibilities and work program, partnering with providers and peaks and utilising opportunities for co-design with providers and consumers.

The Commission must acquire a better understanding of the diverse needs and circumstances of aged care consumers and their communities, especially First Nations people, culturally and linguistically diverse people, people with dementia, veterans and LGBTIQ+ people, and older people living in regional and remote communities. In doing so, it must deliver more flexible and responsive consumer-centric approaches while ensuring quality and safety remains paramount.

The existing aged care legislative framework is not fit for purpose and is too complicated and rules bound. The new Act and regulatory system must encourage ongoing continuous improvement, driving higher quality care, and the development of risk approaches that ensure that the safety of older Australians gets the right and timely attention that is warranted.

To do this, the Commission must have a major focus on being data driven so that the risk-based regulatory vision is able to be realised. Without the right systems and capabilities – particularly robust data analysis – the vision will not come into being. The Commission must share much more information and data – on its own performance, but also providers, and what works, and what the key issues are. This will help drive ongoing continuous improvement and enable a more trusting and empowered sector.

While the Commission has been able to fund its range of activities through internal cross-subsidisation, particularly through the COVID-19 pandemic lockdown periods, a number of terminating measures, as well as increasing demand for some activities such as complaints, means that resourcing issues from 2023-24 must be addressed with some urgency. In particular, I recommend that a resourcing model be developed that includes for some functions a funding mechanism that sees its appropriation revenue directly determined by estimated workloads, which can be adjusted throughout each year based on actual workload – a demand-driven mechanism.

The Commission must also come together with the Department to ensure priorities are better articulated and understood, better data sharing, role clarity between the two agencies and their staff, and improved coordination of messaging and engagement with the sector. This is of critical importance for matters like education and support for providers.

If the Commission does these things – and this is an important caveat – I believe it will be set up for success.

Feedback I have received from stakeholders strongly suggests that the Commission has been overloaded and that the new functions coming on-line and being transferred from the Department have created pressure and resulted in serious risks to the Commission’s business-as-usual (BAU) functions.

I consider therefore it would be ill-advised to require the Commission to take on any additional new functions, bar those already agreed upon, before the commencement of the new Aged Care Act. Rather, the Commission should be encouraged to bed down recent new functions and be given some ‘clear air’ to implement recommendations from this Review.

I also consider there are benefits to the Commission being the end-to-end aged care regulator, and do not support any of the Commission’s current functions being removed.

The Royal Commission recommended in its Final Report that a new Aged Care Safety and Quality Authority be established in place of the Commission. The former Government accepted this recommendation, noting that this should be informed by the outcomes of this Review.

There are strong arguments however, to more effectively and efficiently achieve the objectives expressed by the Royal Commission by retaining the current Commission. This approach involves a less disruptive and more efficient and cost-effective approach by building on the strengths of the current Commission and the work already underway to achieve modern, world class regulation.

Therefore, I am not convinced that the creation of a new Authority and Board is either necessary or advisable at this time. What is more critical is to successfully implement the changes I have proposed.

However, retaining the current Commission requires changes to strengthen its governance arrangements. These include substantially strengthening the Aged Care Quality and Safety Advisory Council (the Advisory Council), including refreshing the membership to address skills deficits and increase diversity of representation.

I consider that the Advisory Council requires more independence and autonomy to enable proper scrutiny of the Commission, and direct engagement with the Minister.

I further recommend that the Inspector-General of Aged Care assess progress and whether more may need to be done in two years, including further consideration of the creation of a new Authority and Board if matters are not sufficiently progressed.

A consolidated list of the report’s recommendations with timelines based on priority ratings is at Chapter 2…. “


The capability review (the Review) of the Aged Care Quality and Safety Commission (the Commission) responds to recommendations 10 and 104 of the Royal Commission into Aged Care Quality and Safety (the Royal Commission). Figure 1 refers. The Royal Commission delivered its final report in February 2021.

The Review was announced by the Minister for Aged Care, the Hon Anika Wells MP on 28 July 2022 and commenced on 4 October 2022.

Figure 1: Royal Commission recommendations 10 and 104

Recommendation 10: Aged Care Safety and Quality Authority (Commissioner Briggs) The Aged Care Quality and Safety Commission should be abolished by 1 July 2022 and replaced by an independent Aged Care Safety and Quality Authority, overseen by a board made up of up to five members, with a Chief Executive Officer responsible to the Authority. The Authority should have the overarching purpose of safeguarding the quality and safety of aged care through enforcing compliance with the Act and Standards. In carrying out this purpose, the Authority should actively engage with older people and their families and carers to ensure that their views are incorporated in the Authority’s compliance and decision-making, and are kept informed of the outcome of regulatory activities. The functions of the Authority are to: approve and accredit providers  monitor and assess compliance with the quality and safety obligations required of providers under the new Aged Care Act address non-compliance with quality and safety obligations by taking enforcement action including: enforceable undertakings directions civil penalties on directors amending approval or accreditation conditions appointing an administrator to assume responsibility for the conduct of a service revocation of approval as an approved provider or withdrawal of accreditation of a service investigate and respond to complaints about the aged care system provide timely and accurate data as specified by the Department for inclusion in the national information service, including information on compliance and accreditation activities, serious incident reporting and complaints by provider and service publish information on the outcomes of regulatory actions, including information on system-wide regulatory activity and outcomes, and publication of enforcement action taken against individual providers do anything incidental or conducive to the performance of any of the above functions. The Authority should be fully funded from Budget appropriations. The Authority’s staff will be employed under the Public Service Act 1999 (Cth). The Authority should ensure that it maintains an appropriate regulatory capability, including regulatory and investigatory skills, clinical skills, assessment skills, and enforcement skills.

Recommendation 104: By 1 May 2021, the Australian Government should commission an independent review of the capabilities of the Aged Care Quality and Safety Commission. By 1 January 2022, the Australian Government should implement the recommendations of the review and provide the resources identified in the review that are needed for the Quality Regulator to engage and develop a skilled and dedicated compliance and enforcement workforce, with the regulatory and investigatory skills, clinical knowledge, assessment skills, and enforcement skills required for it to meet its regulatory mandate….”


I enboldened (and additionally italicised) certain sections

Copied and pasted by Freeman 31st of July 2023


Extract 2:

Quotations from the Law Council of Australia’s report to the
Department of Health on October the 27th 2021

The report is entitled “Aged Care Quality Principles”
“Royal Commission recommendations…”


“… 16. The Final Report recommended reform to the Standards. It found that the Standards do not:-

. define quality, or high quality, aged care – they set out the minimum acceptable
standards for accreditation;11

. set sufficiently high standards of quality and safety12 and lack of objectively
measurable standards

  1. The Final Report also noted that there is no guidance in the Aged Care Act as to the process to be followed to make the Principles, and while the experts are consulted
    by the Department in the development of the Standards, the views of those experts are
    not always followed…”

“… 48. The following comments are made in context of the KPMG evaluation of the current Standards, noting the parameters cited above.

  1. In summary, the Law Council considers that the existing Standards:
  • can be confusing and impractical in that they impose multiple, potentially
    conflicting obligations on organisations;
  • confer potentially conflicting rights for consumers and obligations on
    organisations, without providing guidance as to how such conflict might be
    resolved; and
  • require clarity as to how decisions are made by or on behalf of consumers in the aged
    care system, in the context of relevant State and Territory legislation…”

“… 51. The Quality of Care Principles do not expressly specify how to read the consumer outcome and organisational statement against the requirements. They are all articulated to form part of the ‘standard’.44 The terms used in the Standards do not link to any particular language in section 54-1 of the Aged Care Act, which relevantly provides that an approved provider must ‘comply with the Standards’…” 51…”

Note: I randomly italicised some of the in between headings of the text.

Copied and pasted by Freeman

Full article

The following link is an extended extract of the above shorter quotation

Extended extract [there are overlaps with the above article]

Leave a Reply

Your email address will not be published. Required fields are marked *