Aged Care Legislation Amendment (Aboriginal and Torres Strait Islander Aged Care Commissioner and Other Measures) Bill 2026

Senator RUSTON (South Australia—Deputy Leader of the Opposition in the Senate) (11:45): I would like to make a contribution in relation to the contingent motion that's been moved by the Greens in relation to this bill. At the outset, I say that the bill is important for a number of reasons. The bill is four separate schedules, three of which were put forward by an original bill that went through a committee process and came back, and had universal support, in the committee report, for those three schedules being supported.

Schedule 1 is the establishment of an Aboriginal and Torres Strait Islander commissioner. In a formalised sense, this commissioner has already been in operation for a reasonable length of time as an interim commissioner, and this particular bill, in schedule 1, seeks to make sure that the Aboriginal and Torres Strait Islander commissioner is a permanent feature on the landscape of advice to the Australian government in relation to supporting older Australians who are of Aboriginal and Torres Strait Islander descent.

The opposition absolutely won't stand in the way of formalising the commissioner as a permanent commissioner, because we understand the unique challenges that are faced by older Australians who are Aboriginal or Torres Strait Islander. The second schedule of the bill is time-critical. The government allowed itself a series of Henry VIII powers in the introduction of the original legislative piece that put in place the reforms that started on 1 November 2025 and has used a number of those provisions.

But, as part of the process of having Henry VIII provisions, they have to be brought to this place and have to be approved for their ongoing use in this place in order for them to remain in place. Those provisions sunset on 1 November 2026. We understand that the government has a time-critical necessity to pass schedule 2 of this bill.

The third schedule of the bill relates to a series of other measures that are all important. Some of them are requiring providers to refund overcharged contributions and overpaid resident fees and contributions. There are 13 parts to schedule 3, all of which seek to make changes that will be largely to the benefit of older Australians who are receiving care.

I put on the record that the coalition absolutely supports the passage of schedules 1, 2 and 3, for the reasons I have just outlined. However, at the last minute, after the original legislation had passed through the House of Representatives and been referred off to committee in the Senate and been reported back to the Senate, the government sought to move an additional amendment, which is schedule 4 of this bill, that had a completely different purpose to the original purpose of the bill—that is, to put in place an escalation pathway in relation to the integrated assessment tool, which is the computer generated algorithm that has been the subject of much debate not only in this place but in the wider community.

It would be no surprise to anybody listening that I have, and I know that all of my colleagues have, received numerous representations by older Australians and their families, where they or their loved one have received an assessment using this computer generated algorithm that has no human override. They believe this is inadequate and has under-assessed the needs of older Australians.

On top of that, the algorithm also has a prioritisation component. The amount of times people have said that, even if their loved one has been assessed as needing a level 8 package—and we all know that a level 8 package is only a small degree short of that person needing residential aged care, so they have very significant care needs. They're being told sometimes to wait eight, 10 or 12 months to get this, because the algorithm is not prioritising those people.

The algorithm also does not prioritise—the government does not prioritise—people who are stranded in hospitals to get them quicker access to packages so they are able to go home. The government, for the first time, in introducing this particular amendment, has acknowledged that the assessment algorithm is producing the wrong results for older Australians. You only have to go to the additional comments that the coalition made in relation to the very short inquiry that we were afforded—I think it was 90 minutes with the department—where the department failed to provide answers; was somewhat misleading in the answers that it gave, on many occasions; and was, quite frankly, contemptuous of the questions that were being asked by crossbench and coalition senators at the time.

The overwhelming evidence that came from everybody that presented to that inquiry was that schedule 4 is a bandaid on a symptom and is not a fix for the cause. Everybody who gave evidence believed that this was an interim measure at best and that it did not negate the need for a review and reconstruction of the process that this algorithm is used for. That would include getting under the bonnet of the algorithm itself and understanding that the algorithm is not fit for purpose to deliver correct, accurate and fair assessments for older Australians put through this process.

As we know, we put a bill through this place to say that, because of the flaws, we needed human override. Human override is one part of fixing this problem, but the other very serious part is that we need to fix the algorithm itself. The other thing the evidence shows is that the fundamental problem in the assessment system lies in the algorithm; it doesn't lie in the review process after somebody believes that they've got the wrong decision.

Schedule 4 leaves the algorithm untouched. I think that is the point that needs to be clearly put on the record. Schedule 4 does nothing to fix the problem.

Officials in the inquiry—the short inquiry that we were allowed—were also unable to explain whether anything in the act prevents the existing rules being amended to restore clinical decision-making at the point of assessment, which is the very discretion assessors were told that they would have. It appears the minister could reinstate human override as part of the original decision-making process with the stroke of a pen.

In saying that, coalition senators remain open to working with the government on amendments to address all of the concerns that were expressed during this process. We also acknowledge and thank the many people who provided so much evidence to the plethora of inquiries that have been forced upon this place because of the botched implementation of the aged-care reforms that were brought into being on 1 November 2025.

I can say that we absolutely are genuinely committed to fixing the assessment problem, but we're committed to fixing it at its source. I want to read the final statement in the additional comments put forward by the coalition in relation to the inquiry into this amendment to the original bill. It says: Unless the Government is prepared to acknowledge that the algorithm has failed and set out a clear plan to correct it, Coalition Senators are not willing to support a measure that treats only the symptom.

Doing so risks entrenching a flawed system and relieving pressure on the Government to undertake the fundamental reform that is required. As I said, we are supportive of and committed to making sure the government gets the amendments and changes to the Aged Care Act that it needs for the Aboriginal and Torres Strait Islander Aged Care Commissioner to become a permanent fixture in our landscape.

We also absolutely support the 'Henry VIII' provisions being approved to continue after 1 November. We also absolutely support the additional 'other measures' changes that are listed in schedule 3 in order for the government to be able to make those changes to the benefit of older Australians. But more work needs to be done in order for the Australian public—including older Australians and their families, the stakeholders who have made representations in this particular debate—to have confidence that the government actually is addressing the most critical problem in our aged-care system at the moment, and that is that we have a computer generated algorithm that is making decisions about the care needs of older Australians and the prioritisation of those care needs and that has no human override in the initial assessment process.

For the last 11 months, we have seen so many cases of Australians coming forward and saying that the assessment that they have received is below their care needs. Obviously, the families and the people who are in a position to make an assessment know it is below the care needs of the people that are before them. We are asking the government: please, please address the problem that is causing these older Australians to not get the care that they need.

That's what we're asking you to do. We're happy to continue to work with the government and others in this place, and we thank the Greens for their constructive involvement in this whole process of debate. We are absolutely here to support sensible reform that addresses the problem, and that commitment remains on the table today and going forward.

But we cannot in all conscience accept a half-measure that only addresses the symptoms. We want the cause of the problem addressed as well.