You decide whose interests are at stake in protecting information here...

Excerpt from: Standing Committee on Community Affairs: Discussion, 22 February, 2008 (pages 37-41)
In attendance: Senator Humphries; Ms Jane Halton (Secretary, Department of Health and Ageing); Ms Mary Murnane (Deputy Secretary Department of Health and Ageing); Ms Carolyn Smith, First Assistant Secretary, Office of Aged Care Quality and Compliance; Senator Jan McLucas; Senator Colbeck

Senator HUMPHRIES—I am afraid I have to return to the Murwillumbah Nursing Home. I am a bit concerned about some answers that were given on Wednesday to the committee about this. You will recall that Senator Patterson asked a number of questions repeatedly about the home, and she was told that the information could not be provided because the decision had been made on the accreditation of the home on 8 February and that a 14-day appeal period operated to protect the release of information about the home’s accreditation status. That is what you told Senator Patterson on Wednesday. She specifically asked how many of the standards Murwillumbah Nursing Home failed, and she was told repeatedly that that was protected information. As it happens, today is the 14th day so, presumably, I could now proceed to ask those questions about how many standards the home failed. However, I do not need to, because in the House of Representatives yesterday the minister, Mrs Elliot, provided that information. She said:

I am advised that from 14 to 18 January this year, the Aged Care Standards and Accreditation Agency conducted a review audit of the Murwillumbah Nursing Home and the agency found the home to be noncompliant with 14 of the 44 accreditation outcomes.

Ms Halton—There is a simple answer to this, Senator, which I will ask Ms Smith to explain to you. I should also tell you by way of interest—although you have no interest at all—that it happened that my 14-year-old son was having Senate estimates demonstrated to him by my husband. At precisely that moment they were watching on the net and when I got home he said, ‘Why was Senator Patterson so cross, Mum?’ I then had to explain to him about protected information. At that point his eyes glazed over and he said, ‘Oh, it’s very boring, Mum.’ So I do not know whether it was necessarily a good introduction to the democratic process. But there is a very good answer to your question.

Senator HUMPHRIES—I am glad to hear it.

Ms Smith—There is a range of information that is protected information under the Aged Care Act. It is certainly true that in the general course of events we would not make available information about the nature and number of non-compliant outcomes before the 14-day reconsideration period had expired. That was the discussion we had on Wednesday night.

Senator HUMPHRIES—Yes.

Ms Smith—But we have had instances on more than one occasion when there has been a degree of community interest in the issue. There are also provisions within the Aged Care Act that enable a delegate of the secretary to make certain information available. The delegate has to sign an instrument authorising the release of that information. That instrument has now been signed and that information was duly made available yesterday.

Senator HUMPHRIES—To Minister Elliott.

Ms Smith—To Minister Elliott, who then made it publicly available.

Senator HUMPHRIES—For what reason did the delegate make the instrument available? Was there a request from Minister Elliott for the information to be made available?

Ms Smith—I think it was clear from the discussion on Wednesday night that there was a degree of community interest in having that information available.

Senator HUMPHRIES—There was a degree of Senate committee interest as well. If the instrument was signed yesterday to release information, why couldn’t that have been provided to this committee, because it requested it repeatedly on Wednesday night.

Ms Smith—The instrument had not been signed on Wednesday night, so we could not have made that information available on Wednesday night.

Senator HUMPHRIES—You misunderstand my question. I appreciate that the instrument was not signed on Wednesday night; it was obviously signed on Thursday, some time before 3.22 pm, when the question was asked of Minister Elliott. But this committee has been meeting since nine o’clock this morning and there were questions about Murwillumbah Nursing Home this morning and the information was not provided to us, even though it had been asked for repeatedly on Wednesday night. If I had not raised it, when was it going to be provided to us?

Ms Halton—There were a number of questions that were taken on notice on Wednesday night.

Senator HUMPHRIES—Not that one.

Ms Halton—Which one?

Senator HUMPHRIES—The one about how many standards the Murwillumbah Nursing Home had failed.

Ms Halton—All the questions that were asked today were answered. And Ms Smith is indicating—

Senator HUMPHRIES—Today’s questions have been answered but not Wednesday’s.

Ms Halton—Yes, because the instrument had not been signed. The delegate had not taken a decision in respect of the public interest element of this to release the information. Based on the level of interest, there was a consideration by the delegate and the delegate decided that it would be an appropriate step to release the information.

Senator HUMPHRIES—Ms Halton, I put it to you that if this committee asked for that information and was told that it could not be provided because it was protected and subsequently an order was made by a delegate to unprotect the information, it should have been brought back here and provided to the committee. Are there any other questions that were asked on Wednesday night that we were told we could not have answers to that we can now have answers to because the information has been unprotected by the delegate?

Ms Halton—I will ask Ms Smith to answer that question; however, I do not agree with you, Senator. At the end of the day, we come and we answer questions. That is what we are doing. If that question had been specifically asked it would have been answered. Essentially, the delegate decided that, because of the interest, this matter should be considered. The matter was considered and the delegate took that decision. The information is now in the public arena. And indeed, you are aware of it.

Senator HUMPHRIES—I understand that there is information which you cannot provide because it is not available to you. For example, if I had asked, ‘How many nursing homes are there in Queensland?’ and you had said, ‘We can’t tell you. We’ll get the information and provide it to you later,’ you could not have given me the answer because you did not have the information available to provide to the committee. Isn’t this exactly the same? You could not provide the information because it was not available to you on Wednesday night, but it was available as of this morning.

Ms Halton—It was available to us. We were not permitted to disclose it, because it was protected.

Senator HUMPHRIES—You were this morning.

Ms Halton—Because a decision has been taken to release it publicly.

CHAIR—Ms Halton, who is the delegate?

Ms Halton—Ms Smith, in this particular case.

CHAIR—I will work as part of the committee and do a follow-up at the end of the hearing, when we do our response and so on, but I tend to agree with Senator Humphries in terms of the process. I am just interested in when we went through the series of questions the other evening and Senator Patterson was quite persistent in her questions around this. The fact that there was a place where the delegate could make such a decision was not given in evidence to the committee. Senator Patterson asked several times and she disagreed about whether it was privileged or not. I am interested to note that, when she was questioning, no-one from the department said, ‘The only way this could happen would be if there was a decision done by a delegate that it could be released.’ That option was not shared with the committee. That interests me.

Senator McLucas—I can provide some assistance in a historical context. I recall last year the previous minister took the, I think, unusual action to release information that would usually be protected under the act. It is because there is a level of community interest. The previous minister used the opportunity only on one occasion. That may be incorrect, but I only know of one occasion in the last 12 months and possibly even longer. It is an unusual step and it is because of increased community interest in a particular matter that the step to release information that would be protected under the act is taken. I do not think that departmental officials have been trying to be unhelpful at all. The instrument has to be signed. If it is not signed, anybody who releases information that is protected under the act will be prosecuted. It is a very significant—

CHAIR—That is understood, Senator McLucas.

Senator McLucas—offence under the Aged Care Act.

CHAIR—Can we have a copy for our records of that guideline or the provision that actually makes that statement about how delegates can make that decision. It would be a useful thing for our committee to have in terms of process. Then we will follow up.

Ms Halton—Can I make one more comment. You made a comment that we should have told you about that. Again, I actually do not agree with that. I have to say that, exactly as Senator McLucas says, this is an unusual step and it has to be considered on balance. I think to have speculated about that in front of the committee would have been improper—and that is what it would have been, because a delegate actually has to consider the evidence and whether or not this is actually in the public interest. A process of consideration is not something that should be speculated about in evidence to a Senate committee. In fact, if any of my officers did that I would regard it—

Senator HUMPHRIES—No-one is suggesting that it should have been, Ms Halton.

Ms Halton—No, but my point—

Senator HUMPHRIES—It is today’s lack of information I am talking about, not Wednesday’s.

CHAIR—Senator Humphries, we have the issue on the record. We have the process and we will follow up with it, if we can have a copy of that.

Ms Halton—Yes. I am happy to give you that.

CHAIR—And I take it Senator Patterson has received this information?

Senator HUMPHRIES—Not that I am aware.

CHAIR—We will do it, but I think it might be useful for the department to send something to Senator Patterson—

Ms Halton—Yes, I am happy to do that.

CHAIR—about the process and to follow up on her questions the other evening.

Senator COLBECK—Was the delegate asked by anybody to consider the release of the information?

Ms Halton—Not by me.

Senator COLBECK—No, that is not the question. It is a good answer, but it is not the question. Was the delegate asked by anybody to consider the release of the information and signing the document?

Ms Murnane—Yes. I suggested to the delegate that she could give her attention to that matter.

Senator COLBECK—Were you asked by anybody to consider it?

Ms Murnane—I was not.

Senator COLBECK—Okay, so essentially you instigated that process?

Ms Murnane—I did.

Senator COLBECK—Thank you.

Ms Halton—Senator, I should say that, after the estimates hearing and after that matter was canvassed, we actually did have a conversation about the level of interest in this matter. So, reflecting on that conversation and the level of interest in it, we did have that conversation the other evening.

Ms Murnane—I should say that, in terms of the exercise of any delegation, the decision was the delegate’s and the delegate’s alone.

Senator COLBECK—I understand that. I understand that fully.

Senator HUMPHRIES—At this stage, I will put some other questions on notice about this matter.

CHAIR—On that basis, we will call an end to questions on aged care.