EXPLANATORY STATEMENT
Issued by the Assistant Minister for Social Services
Aged Care Act 1997
Aged Care Act 1997 - Determination under paragraph 44-19(1)(b) (ACA Ch. 3 No. 5/2007) Revocation Determination 2013
The purpose of this Revocation Determination is to revoke the Aged Care Act 1997 - Determination under paragraph 44-19(1)(b) (ACA Ch. 3 No. 5/2007), also known as F2007L01960.
Background to the legislative instrument being revoked
Paragraph 44-19(1)(b) of the Aged Care Act 1997 (the Aged Care Act) provides for the Minister to determine in writing that a residential care service, or part of a residential care service through which the care is provided, is an ‘adjusted subsidy’ residential care service.
Under the National Health Act 1953, nursing homes that had transferred from state government funding to Commonwealth nursing home funding were known as “adjusted fee government nursing homes”. They were paid a discounted rate of standard infrastructure funding on the basis of an agreement between the Commonwealth and the states that the Commonwealth would not pay the state governments an amount representing a return on the state and territory governments’ capital investment in these nursing homes.
The discounted subsidy was translated into the Aged Care Act as the adjusted subsidy reduction.
Subsection 44-19(1A) of the Aged Care Act was inserted by the Aged Care Amendment (2008 Measures No. 1) Act 2008 and provides that a determination made under paragraph (1)(b) is not a legislative instrument. Determinations made under paragraph 44‑19(1)(b) of the Aged Care Act were treated as legislative instruments prior to the insertion of subsection 44-19(1A).
A new determination (‘Determination of Adjusted Subsidy ACA Ch. 3 No.1/2014’) will commence on 1 February 2014. The new Determination reflects changes to adjusted subsidy residential care services. Such changes are made periodically and may occur if residential care places are relinquished, or if the name of a service changes. In accordance with the operation of subsection 44-19(1A) of the Aged Care Act, the new Determination will not be a legislative instrument.
Revocation of the legislative instrument
A Determination which is not a legislative instrument should not revoke a legislative instrument. This Revocation Determination is required to revoke the previous determination Aged Care Act 1997 - Determination under paragraph 44-19(1)(b) (ACA Ch. 3 No. 5/2007) which was a legislative instrument.
Subsection 33(3) of the Acts Interpretation Act 1901 specifies that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
This Revocation Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
No consultation with industry or stakeholders was necessary as this Revocation Determination solely revokes a previous legislative instrument.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required.
Commencement
This Revocation Determination commences on 1 February 2014, immediately following the commencement of the Determination of Adjusted Subsidy ACA Ch. 3 No.1/2014 made under paragraph 44-19(1)(b) of the Aged Care Act 1997.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Adjusted Subsidy Residential Care Services Revocation Determination 2013
This Revocation Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of this Revocation Determination is to revoke the Aged Care Act 1997 - Determination under paragraph 44-19(1)(b) (ACA Ch. 3 No. 5/2007), also known as F2007L01960. This Determination contains out-of-date information in respect of, for example, residential care places and names of residential care services.
A new Determination (‘Determination of Adjusted Subsidy ACA Ch. 3 No.1/2014’) will commence on 1 February 2014. This new Determination will specify all adjusted subsidy residential care services.
In accordance with the operation of subsection 44-19(1A) of the Aged Care Act 1997, the new Determination will not be a legislative instrument.
This Revocation Determination is required to revoke the previous Determination which was a legislative instrument.
Human Rights Implications
The revocation of the redundant legislative instrument reduces the complexity of aged care legislation. The revocation does not engage any human rights issues.
Conclusion
This Revocation Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as it does not engage any of the applicable rights or freedoms or alter any human rights safeguards currently in place.
Senator the Hon Mitch Fifield, Assistant Minister for Social Services