Dead Fish, Criminal Bankers, Aged Care Abuse - Where are the Regulators?

The popular media debate about government performance often focuses on political games and short-term point scoring, but what matters most in our communities is the quality of government services and effective regulation that protects us all, writes Community Council for Australia CEO David Crosbie in Pro Bono News, 14 February 2019.

Dead Fish, Criminal Bankers, Aged Care Abuse – Where are the Regulators? Pro Bono News, 14 February 2019.

As the federal election looms and politics becomes increasingly shrill, it is timely to reflect on one of the most important roles of government: the development, implementation and oversight of national laws and regulations.

Australians are generally opposed to the idea of regulations. Most of us want less, not more, regulation. We do not like the idea of big brother looking over our shoulder, restricting our freedoms, imposing obligations, seeking to reduce risk when risk is so often part of the adventure.  

But Australians also take pride in the idea that fairness is a national value. Fairness is not a given when individual and organisational greed drive behaviour. In an increasingly commodified community, greed is not only rewarded, but in some cases revered. Competition between vested interests has placed our regulators under significant pressure.

In the last few months, royal commissions have exposed the unethical behaviour of primary producers taking water out of the environment and contributing to massive fish kills, bankers making money by preying on vulnerable (in one case dead) customers, and abuse of people in aged care residential settings.

The reaction of most people to these shocking events has been to condemn the individuals involved, point to a failure of organisational culture and seek both vindication and redress.

Australians take as a given that their governments will ensure there are adequate protections in place for all of us. We want our food and water to be safe, our buildings and bridges not to break, our workplaces not to make people sick, our animals not to be tortured. While resenting some regulations, Australians also want boundaries in place so unsafe products cannot be sold, limits so environments cannot be ripped apart and destroyed for short-term profit, and protections for the vulnerable whether they be children, the marginalised or the elderly.

Governments have a core responsibility to put in place safeguards, regulations, and regulators to oversee the boundaries of fairness.

Former prime minister Robert Menzies, when outlining his view of post-war Australia in his Forgotten People speech said: “The functions of the state will be much more than merely keeping the ring within which the competitors will fight. Our social and industrial obligations will be increased. There will be more law, not less; more control, not less.”

When the royal commissioner charged with investigating the Murray Darling Basin plan, Bret Walker SC, released his 746 page report, he argued that there needed to be a review of the northern basin, which had been subject to: “gross maladministration by the Murray Darling Basin Authority. It (the northern basin) is an example of how the current management of the MDBA has shown itself unwilling and incapable of fulfilling its statutory functions and obligations”.

The banking royal commission repeatedly criticised the performance of our financial services regulators, and the Productivity Commission report into superannuation nicely summed up the problems in the financial services sector with the finding that: “ASIC and APRA have not been held fully to account by the government”.  

As the Royal Commission into Aged Care begins hearings, the focus is rightly on quality of care.

In 1997, the Howard government’s Aged Care Act was successful in encouraging increased private investment in the aged care residential sector with superannuation funds, foreign investors, private equity and real estate investment firms all buying into aged care residential service provision. The Dean of the University of South Australia’s law school Professor Wendy Laceyhas argued the 1997 Aged Care Act offers: “a complete absence of any positive and mandatory legal obligation on the part of facilities to take proactive measures to promote mental health and wellbeing of their residents”.

Governments have used the term “quality” in the names of the various accreditation agencies that have had responsibility for licensing the aged care sector over the last 20 years. In 2013, the Australian Aged Care Quality Agency replaced the Aged Care Standards and Accreditation Agency as the sole agency that approved providers under the Aged Care Act 1997 with a focus on “the quality assurance of the aged care services that they deliver”. At the same time, the government established the Aged Care Quality Advisory Council. We now have the recently established Aged Care Quality and Safety Commission. Despite the use of the word quality in naming all these organisations, not one of these regulators have put in place reportable measures in relation to the experience of aged care residents. So where are the measures of quality and where is the oversight?

We all want justice for those who have been poorly treated, accountability for the organisations that have failed to be fair or exercise a duty of care. We also move beyond these reactions to putting in place regulatory structures that ensure good practice is rewarded and bad practice is punished. This can only happen if we have effective regulators.

During the early debates about establishing the Australian Charities and Not-for-profit Commission, I was repeatedly asked why CCA would seek to establish a regulator overseeing our sector? Our response was that the sector would be strengthened if the vast majority of charities were better protected through a regulator with the capacity to address the harm being done by a very small minority of charities damaging public trust and confidence.  

The popular media debate about government performance is often focused on the political games and short-term point scoring, but what matters most in our communities is the quality of government services and effective regulation that protects us, our communities and our environment.  

If we are to achieve the Australia we want, we need governments that can ensure regulators do their job. Any takers?


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