What the committee actually asked about
The Senate Community Affairs Legislation Committee opened its review of aged care legislative instruments on 24 November 2025, with submissions closing 23 January 2026. The subject is the Aged Care Rules 2025 and the Aged Care (Consequential and Transitional Provisions) Rules 2025: the delegated legislation that carries the working detail of the Aged Care Act 2024.
A reader could reasonably expect the responses to spread across the instrument, because
the Rules do. They cover who may register as a provider, what the Quality Standards
require, how funding works, how complaints are handled, what records must be kept. Some
submissions do exactly that. But counting mentions of restrictive practice
or
restraint
across the 47 documents gives 631, spread over 24 of them, and the
heaviest concentrations are not marginal voices.
Where restrictive practices are raised most, by mentions per submission
| Submitter | Mentions | Words |
|---|---|---|
| Queensland Public Advocate | 207 | 9,068 |
| Prof Richard Bruggemann, Hon John Darley OAM and Ted Lee | 73 | 7,163 |
| Older Persons Advocacy Network | 73 | 3,273 |
| Department of Health, Disability and Ageing | 49 | 7,029 |
| Office of the Inspector-General of Aged Care | 38 | 2,493 |
| Law Council of Australia | 30 | 3,835 |
| Dementia Australia | 26 | 3,041 |
| Aged Rights Advocacy Service | 25 | 5,075 |
The Queensland Public Advocate, Dr John Chesterman, does not bury the choice. His
submission of 17 December 2025 opens by saying he will
focus this submission on the regulation of restrictive practices, which are provided for
in sections 17 and 162 (and elsewhere) of the Rules
. Those two sections are where this
whole argument lives.
What the Rules require now
The Department of Health, Disability and Ageing made its own submission, and it is the clearest plain statement of the current position. Section 162 makes it a condition of registration that a provider comply with the requirements for using a restrictive practice. Chapter 4, Part 9 of the Rules sets those requirements for providers registered in the residential care category, and the Department says restrictive practices are not intended to be used by providers outside that category at all.
A restrictive practice, in the Department's own list, may only be used
as a last resort to prevent harm to the individual or to others
,
only to the extent necessary and in proportion to the risk of harm
, and
in the least restrictive form, and for the shortest time necessary to prevent harm
.
It may be used only after the likely impact has been considered, after alternative
strategies have been trialled and documented in the individual's behaviour support plan,
and after informed consent.
That is a real set of constraints, and nobody in the corpus argues they should be removed. The disagreement starts at the last item on that list.
Who gives the consent, and who checks it
Where the individual cannot consent, the Rules use a framework of substitute
decision-makers. The Inspector-General of Aged Care told the committee this is the wrong
model, and said so directly: the framework is
contrary to the Royal Commission, which recommended a ‘senior practitioner’
model, where approval for using restrictive practices would be granted by an independent
clinical expert
. The Inspector-General also called the substitute decision-maker process
inherently complex
, likely to be
cumbersome to administer, and more concerningly, subject to misuse and inconsistently
applied in practice
.
The Inspector-General named who else has argued for the senior practitioner model: COTA, the Australian Human Rights Commission's Age Discrimination Commissioner Robert Fitzgerald AM, and the Queensland Public Advocate. That is a fair description of this corpus. The heaviest submissions on the table above are largely the same argument arriving from different directions.
The Older Persons Advocacy Network put the second half of the gap. The Royal Commission,
it told the committee, recommended prohibition of restrictive practices unless
recommended by an independent, accredited expert, as part of a behaviour support plan lodged
with the Quality Regulator
, together with monthly reports to the Quality Regulator on
implementation of the behaviour support plan and quarterly review by the independent
expert
. What exists instead, in OPAN's account: While providers must now have a
behaviour support plan in place, they are not required to formally lodge it or report
monthly to the Aged Care Quality and Safety Commission
.
OPAN also says the plans themselves are often thin, describing behaviour support plans
being identified as insufficient, not fit for purpose, and not person-centred
where
generic templates are used.
The claim we could not check ourselves
The Inspector-General makes one further argument that is sharper than the rest, and we
are attributing it rather than asserting it. Section 162 requires that the use of
restrictive practices not be inconsistent with the Statement of Rights in section 23 of the
Aged Care Act. The Inspector-General told the committee that the Statement of Rights
does not include rights to liberty, freedom of movement and freedom from restraint
,
and that the absence of those rights
will undermine the effectiveness of section 162-5
.
We have not independently read section 23 of the Act. The federal register serves its search interface as a JavaScript page that a plain reader cannot extract, and we would rather say so than imply a check we did not do. What we can say is that the claim is made by the statutory office charged with monitoring the reforms, in a submission to Parliament, footnoted to that office's own 2025 progress report. No other submission in the corpus contradicts it.
The part that is genuinely interesting
Ageing Australia, the provider peak, spends most of its submission on compliance burden
across the Rules generally, and it is worth being precise about that: it mentions
restrictive practices only twice in 5,504 words, and it does not argue for looser restraint
rules. Its recommendations elsewhere are about volume, asking that
minimum thresholds are provided before incidents require reporting
, that the Rules be
amended to reduce the volume of records that registered providers are required to
retain
, and that the word controlled
be replaced with managed
in the
clinical care standard.
But where it does reach section 162, it says something that sits directly against the
advocates' remedy. The Rules, it notes, require the involvement of behaviour specialists and
regular clinical review for any restrictive practice. Then:
In regional, rural and remote areas, behaviour specialists and geriatricians are not
readily available, leading to delays.
It adds that providers
remain exposed where compliance is dependent on external prescribers, practitioners, or
guardianship bodies, whose responsiveness is outside the provider's control
, and asks for
clearer protection for providers acting in good faith
and defined timeframes for
those external decision-makers.
Set the two beside each other. The advocates, the Inspector-General and two state Public Advocates want approval for restraint moved to an independent clinical expert. The provider peak says the clinical experts the Rules already require are not there in much of the country, and that waiting on them is itself creating delay and risk.
Our view, labelled as such: that is not two sides talking past each other, it is two sides describing the same shortage. A senior practitioner model concentrates the decision in exactly the workforce that Ageing Australia says is unavailable outside the cities. That does not make the model wrong, and the case for independent approval of restraint does not get weaker because it is hard to staff. It does mean the question the committee has in front of it is partly a workforce question wearing a legal-drafting costume, and none of the submissions we read cost it out.
What happens next
The committee had not reported when we read the file. Its own page carries a link labelled as a report that resolves to a different inquiry entirely, which is worth knowing if you go looking. Public hearings are listed separately. Whatever the committee recommends, the decision sits with the instrument rather than the Act, which means it can be changed without new primary legislation, and that is the reason this review matters more than its profile suggests.
How we worked this out
We took the committee's published submissions list and downloaded every document it links to. The listing reports 49 items; one, submission 37, is marked confidential, and we retrieved and read 47 that carry a public document, totalling about 157,000 words. Every quotation above was read in the submission itself, not in a summary of it.
The counts are our own and the method is deliberately blunt: a case-insensitive count
of the strings restrictive practice
and restraint
in the text extracted
from each PDF. That will catch a phrase in a heading, a footnote or a citation as readily
as in an argument, so treat the numbers as a measure of attention rather than of intent,
and note that a long submission has more room to repeat itself. Word counts are of the
extracted text and include headers and footnotes. We are publishing the method because
the finding rests on it.
One trap worth recording for anyone repeating this: the submissions page reports
49 items in 3 pages
but places only the first 20 rows in the page source, so a
straightforward fetch collects 41 per cent of the corpus and gives no sign that anything
is missing. We reached the rest by paging the list in a browser. We also did not read the
confidential submission, and we have not independently verified the contents of section 23
of the Aged Care Act 2024, as noted above.
Primary sources
- Senate Community Affairs Legislation Committee, Aged care - review of legislative instruments, 48th Parliament, commenced 24 November 2025, submissions closed 23 January 2026, read 25 August 2026. The inquiry's scope, dates and the published submissions list from which the corpus was taken.
- Office of the Inspector-General of Aged Care, submission 5 (PDF), read 25 August 2026. The substitute decision-maker framework being contrary to the Royal Commission's senior practitioner model; approval by an independent clinical expert; the framework being inherently complex, cumbersome to administer and subject to misuse; the Statement of Rights not including rights to liberty, freedom of movement and freedom from restraint; the effect on section 162-5; and the named supporters of the senior practitioner model.
- Older Persons Advocacy Network, submission 44 (PDF), read 25 August 2026. The Royal Commission's recommendation that restrictive practices be prohibited unless recommended by an independent accredited expert as part of a behaviour support plan lodged with the Quality Regulator, with monthly reports and quarterly expert review; that providers must have a plan but are not required to lodge it or report monthly to the Commission; and that plans are being identified as insufficient, not fit for purpose and not person-centred.
- Department of Health, Disability and Ageing, submission 15 (PDF), January 2026, read 25 August 2026. Section 162 as a condition of registration; Chapter 4 Part 9 applying to the residential care registration category and the intention that restrictive practices not be used outside it; and the conditions for use quoted above, including last resort, proportionality, least restrictive form and shortest time, prior consideration of impact, documented alternatives in the behaviour support plan, and informed consent.
- Ageing Australia, submission 4 (PDF), read 25 August 2026, and Queensland Public Advocate, submission 1 (PDF), dated 17 December 2025, read 25 August 2026. Ageing Australia: the section 162 comments on behaviour specialists and geriatricians not being readily available in regional, rural and remote areas, exposure where compliance depends on external prescribers, practitioners or guardianship bodies, and the recommendations on minimum reporting thresholds, record volume and the word controlled. Queensland Public Advocate: the stated focus on restrictive practices at sections 17 and 162 of the Rules.
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