Any law student—or indeed, any large language model AI—can quickly enumerate the purposes of laws: maintaining order, resolving disputes, protecting individual rights, and establishing societal standards.
Yet, there's one less cited purpose: affording politicians the opportunity to issue press releases. Perhaps I’m cynical? Well, a closer look at the aged care sector in Australia reveals a glaring mismatch between legislative actions and real-world outcomes. In a bold move, the Labor government, upon assuming power, committed to a significant uplift in aged care standards: mandating the provision of 24/7 registered nurses and stipulating a minimum of 200 care minutes per resident per day in all aged care facilities nationwide. They legislated (amending the Aged Care Act 1997 (Cth)) on this point in 2022 and this became the law in 2023. Yet, the reality post-enactment is starkly different, with numerous providers failing to meet these stipulated requirements. This outcome should hardly be a surprise, given the government's own admission last year to Senate Estimates that the sector was grappling with a shortfall of 8,100 registered nurses (RNs).
Since the introduction of the legislation, the Aged Care Quality and Safety Commission (ACQSC) has not taken enforcement action against a single provider for non-compliance with the 24/7 registered nurse requirement. This inaction may seem reasonable, considering that for many providers, especially those in regional, rural, and remote areas, meeting these standards is an insurmountable challenge. But this lack of enforcement raises a critical question: what, then, was the true aim of this legislation?
It is not typically my approach to gauge the success of legislation solely by the regulator's enforcement actions. Nor am I advocating for the ACQSC to adopt a more punitive stance. However, this scenario compels us to ponder the effectiveness of such legislative measures. If widespread non-compliance is met with regulatory inaction, one must question the purpose and efficacy of the initial legislative effort. Was the substantial effort and resources expended by the sector really worth it? In an environment where resources are already stretched thin, was this truly the best allocation of taxpayer money to achieve 'high-quality care'?
Creating laws is an expensive endeavour. Drafting legislation, discussing it in parliamentary sessions, conducting senate reviews, and all the associated bureaucratic machinery incur significant costs. These resources, one could argue, might have been more effectively allocated directly to aged care services, rather than fuelling government and regulatory narratives.
Furthermore, the situation brings into question the legitimacy of both the government and the ACQSC. Setting unattainable compliance targets not only undermines their authority but also casts doubt on the practicality and relevance of the policies they champion. This concern is particularly pressing as we stand on the cusp of the introduction of a new Aged Care Act. It does leave us wondering. What would the public policy buffs think of this?
In conclusion, while legislative efforts aimed at improving aged care standards are commendable, the disconnect between policy aspirations and on-the-ground feasibility must be acknowledged and addressed. Laws should not merely serve as vehicles for political messaging but should be practical, enforceable and, above all, serve the genuine needs of the community. As we navigate these complex issues, a balanced, realistic approach to legislation and enforcement, informed by the realities of the sector, is crucial. Only then can we ensure that our aged care system is not only compliant on paper but also compassionate, effective, and sustainable in practice.
Thanks to Andreas Geronimos, Solicitor - Aged Care for his contribution to this article.
This article first appeared in Amber Crosthwaite's article for Business News Magazine on 22nd of March 2024.
