COMMITTEES

Senator SCARR (Queensland) (17:19): I acknowledge two colleagues who serve on the Standing Committee for the Scrutiny of Delegated Legislation. The chair, Senator O'Neill, does a wonderful job as chair, as she does on every committee she chairs. I also acknowledge Senator Ananda-Rajah for her thoughtful contribution.

If I can reinforce the point that Senator O'Neill made about the quality submission that was made to our committee by the department of the environment, led by Senator Murray Watt of this place, it really was a fulsome and quite substantial submission, especially noting the commitments that have been made in relation to the rewriting of the regulations under the EPBC Act.

I think the department should be rightly commended for the manner in which they engaged with the committee. I think it's an example that other departments should follow. If Senator Watt and the department can broadcast my congratulations to them far and wide, hopefully that will provide some encouragement for other departments with respect to the way in which they engage with the committee.

I do want to make some comments about the Aged Care Rules. Senator Ananda-Rajah touched on the Aged Care Rules in her contribution, but I want to enhance the discussion in relation to what is referred to as the integrated assessment tool, which is used to determine whether someone's eligible for home-care support and the degree of support which they are entitled to.

I've got to tell you, when those rules came before our committee—there were over 600 pages of rules that were exhaustively analysed by the committee—I was not aware of the fact that a guideline had been issued that sits outside of the rules and therefore is not subject to the scrutiny of our committee. It is a guideline which says to an assessor using the integrated assessment tool—which uses various differential techniques, predictive techniques, algorithms, whatever you want to call it—to assess the need for home-care support that the assessor is not permitted to override what the integrated assessment tool tells them.

The issues arising from that practice, or protocol, which has been promulgated through this guideline—which did not come before the scrutiny committee—have been well documented in some articles written by Melissa Davey in the Guardian over the course of the last month or two. Those articles have included quoting the person who designed this integrated assessment tool as being horrified with respect to the way in which it has been applied and the fact that the guidelines say that the assessor is not permitted to overrule the outcome of the application of the integrated assessment tool.

We have heard some terrible cases of people who desperately needed support, and they and their loved ones have not been able to access that support because of the nonsensical outcomes being generated by the integrated assessment tool, which are unable to be overridden. When you read the guideline—I hope the department is listening to this, and I have read the guideline—it cross-refers to aged-care rule 81.1 as providing some sort of justification for the guideline saying that the assessor cannot intervene and override the integrated assessment tool and what it is saying.

When you read aged-care rule 81.1, it's completely silent on the issue. Completely silent. It is terribly disappointing that the department is using this guideline to effectively override the scrutiny of these Aged Care Rules by the Scrutiny of Delegated Legislation Committee.

That was never countenanced in over 600 pages of Aged Care Rules. Every single scrutiny committee—I'm a member of all three of them in this parliament—is very much alive with respect to the dangers which lurk with automated decision-making. Every single senator in this place is aware of what happened during the robodebt crisis and the dangers with respect to automated decision-making where there isn't the possibility of human intervention in relation to decisions that can have devastating consequences on Australians, especially vulnerable Australians.

In this case, we're talking about a cohort of older Australians relying upon support, them and their families, and yet we have this terrible situation where the aged-care rules, over 600 pages, did not countenancethat an assessor would not be able to intervene in application of this integrated assessment too. Didn't countenance it at all, and yet the department then issued a guideline dictating to assessors they're not permitted to override it such that the Scrutiny of Delegated Legislation Committee was deprived of the opportunity, denied the opportunity, of considering the process as a whole.

That is unacceptable. It's certainly a matter which I'll be seeking to pursue. I think the department and the minister have a lot of explaining to do as to how that came about, who wrote that guideline, did that guideline come before the minister, who gave advice with respect to that guideline and whether any consideration given to the exhaustive examination of the aged-care rules by the Scrutiny of Delegated Legislation Committee and our keen interest to make sure that automated decision-making wasn't inappropriately used in the contexts of making decisions in relation to home care for some of our most vulnerable Australians.

I seek leave to continue my remarks. Leave granted. Question agreed to.