On November 1, Australia’s new Aged Care Act will come into effect, heralded as a “once in a generation reform” to transform the nation’s beleaguered aged care system. The Act, responding to 58 of the 148 recommendations from the Royal Commission into Aged Care Quality and Safety, promises a rights-based, person-centred model of care.
Central to this is a statement of human rights, a beacon of hope for older Australians seeking dignity and respect. But Natalie Siegel-Brown, the Inspector-General of Aged Care, has sounded a warning: the Act’s lofty rhetoric may be little more than words on a page, with no robust mechanisms to enforce the rights it champions.
“I’m absolutely stoked to see the human rights statement within the Act,” Siegel-Brown told SBS Radio’s Weekend One on One. “It is absolutely imperative that we see this Act commence on the first of November. I don’t think we can wait any longer for that to occur.” Yet, her optimism is tempered by a stark reality: “There are no solid enforcement mechanisms within the Act for the entrenchment of those human rights.”
Siegel-Brown’s 200-page report, a meticulous review of the government’s progress on the Royal Commission’s recommendations, lays bare the Act’s shortcomings. The human rights statement, while a “brilliant place to start,” lacks the teeth to ensure providers deliver on its promises.
“While we have a statement of rights that covers a lot,” she said, “there is still very little to enable you to enforce your human rights within the Act.” The Act relies on a complaints-based system, where residents must raise breaches of their rights with the Aged Care Quality and Safety Commission.
But as Siegel-Brown pointed out, this approach is deeply flawed: “Leaving the enforcement of your human rights down to making a complaint means that we are relying on a breach of human rights as the only mechanism by which rights can be realised.”
This setup places an unfair burden on older Australians, many of whom face significant barriers. “We’re relying on people to have the self-efficacy to raise a breach of their rights,” Siegel-Brown explained. “When we’re talking about people for whom cognitive decline and difficulty in navigating complex bureaucracy is seriously a tough thing.”
For those with dementia or without advocates, the system is effectively inaccessible. “Unless people have an advocate in their life or a loved one who can help negotiate the complaints process for them, we are really limiting or narrowing the kinds of people who can make a complaint,” she added. “It’s actually perhaps those who have the least self-efficacy, who we most need to know about, whether their human rights are being achieved and promoted.”
The absence of proactive enforcement is particularly glaring in the Act’s failure to codify freedom from restraint as a right.
The Royal Commission highlighted the overuse of restrictive practices, such as physical or chemical restraints, as a major abuse in aged care, yet Siegel-Brown’s report found “not enough is being done to reduce the use of restrictive practices.”
She noted, “They are still being over-relied upon,” a damning indictment given that this issue was “one of the fundamental matters that brought about the Royal Commission.” The disability sector, she argued, offers a better model: “The disability sector, while it still has a long way to go, is actually far further ahead in this regard.”
She highlighted how the disability sector’s mantra of “reducing and eliminating the use of restraints” contrasts with aged care’s lag, where such practices remain entrenched due to inadequate workforce training.
“There’s a whole range of things relating to the education of the workforce around, for example, the psychological symptoms of dementia,” she said. “The way people communicate that actually could vastly reduce and eliminate the use of restrictive practices.” Siegel-Brown’s critique extends beyond enforcement to the Act’s broader regulatory framework. Providers are required to state their compatibility with the human rights statement, but there’s little to hold them accountable.
“Providers have to state their compatibility with the statement of rights, but really, there’s nothing solid that is about anything other than the breach of your rights within the enforcement mechanism,” she said. This reactive approach fails to incentivise providers to proactively promote rights.
“I’m really keen in seeing the aged care system administered in a way that incentivises the promotion of rights and disincentivises their breach through the way we fund the system, through the way we regulate the system more broadly,” she urged. Without such mechanisms, the Act risks becoming, as she put it, “pretty words on a page.”
The Act’s reliance on complaints also raises questions about cultural safety, particularly for First Nations and culturally diverse communities. Siegel-Brown’s report notes ongoing issues with the complaints process, including “the opacity in receiving feedback” and “the fear of retribution” among residents and their families.
While she acknowledged “significant progress by the Aged Care Quality and Safety Commission to really increase the efficacy of complaints,” she stressed that “there is still a lot of work to do.” For vulnerable groups, the lack of mandatory cultural safety training exacerbates the problem, leaving the system ill-equipped to deliver “non-discriminatory, culturally responsive, trauma-aware, healing-informed care.”
Advocates have long called for a robust human rights framework, noting that Australia’s legal protections for older people are patchy, with human rights charters only in Victoria and the ACT. “Australia jurisdictionally only has human rights charters in the ACT and Victoria, and the Constitution is very limited in express human rights offered,” host Biwa Kwan observed.
Siegel-Brown agreed, suggesting that while the Act’s human rights statement is a step forward, its enforcement gaps undermine its potential. “There are still things that we can do to ensure rights are enforced through rules, through policy, through programmes,” she said, citing the need for a framework to guide how the Commission handles rights breaches. Yet, as she noted, “We’re still waiting to see the framework or the rules or the approach that the Commission will take to somebody raising a breach of their rights under this new statement of rights.”
Siegel-Brown remains cautiously hopeful, believing the Act could “set a new era for the aged care system.” She expressed optimism about working with the government to address these gaps: “I do believe that the government wants to see the right legacy derived from this Act.”
But her report serves as a sobering reminder that aspiration alone won’t suffice. “It’s a mandate, and I don’t think we have the mechanisms to enforce that mandate at the moment,” she warned. For older Australians, particularly those without the means or ability to advocate for themselves, the Act’s promise of dignity and respect risks ringing hollow unless these systemic flaws are addressed.
As Siegel-Brown put it, “We want to make sure this new Act is not just pretty words on a page, that it does actually have the mechanisms to breathe life into it.” The jury, she concluded, is still out.
