EXPLANATORY STATEMENT
Issued by the authority of the Secretary of the Department of Health
Aged Care Act 1997
Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016
Purpose
The Aged Care Act 1997 (the Act) provides for the allocation of aged care places to a person to provide aged care services for a region. The Act allows the Secretary to allocate places, in respect of a particular type of subsidy, to a person to provide aged care services for a region. Places may be allocated to a person who is approved under section 8-1 of the Act to provide aged care in respect of which the places are allocated, or will be approved to provide aged care in respect of which the places are allocated once the allocations take effect, or begins to be in force.
Allocations of places made under the Act may be subject to conditions with which the person receiving the allocation must comply. The Secretary may make conditions in respect of a particular allocation of places (section 14-5 of the Act), or conditions that apply either to general or a specified kind of allocation (section 14-6 of the Act). Approved providers must comply with any relevant condition of allocation made under sections 14-5 and 14-6 of the Act.
Conditions of allocation made under section 14-6 are currently contained within several separate determination instruments. Some of these conditions of allocation are due to sunset in October 2016 and need to be renewed, others are no longer relevant as the programs they relate to have ceased to operate, while others needed re-drafting to reflect current legislative amendments.
The purpose of the Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016 (this instrument) and the Aged Care (Conditions of Allocation) Determination 2016 (the consolidation instrument) is to consolidate all conditions of allocations made under section 14-6 of the Act into a single determination, and ensure that relevant conditions of allocation are not automatically repealed via the sunset clause set out in section 50 of the Legislation Act 2003.
As a result of this consolidation process, any conditions of allocation that are no longer relevant will be repealed by this instrument. This will assist the aged care industry to easily find the conditions of allocation that must be complied with as all section 14-6 conditions of allocations will be contained in the one instrument (that is, in the consolidation instrument).
Background
Section 14-6 of the Act provides that an allocation of places is also subject to such conditions as are from time to time determined by the Secretary, in writing, in respect of allocations of places generally or allocations of places of a specified kind that includes the allocation of places in question.
A number of determinations have been made under section 14-6 of the Act and have not been reviewed for some time. As a result, a number of the conditions of allocations in those determinations are no longer relevant, replicate provisions in the Principles or include information that is better located in the Principles (where the requirement is more transparent and more readily identified by approved providers).
This instrument repeals all previous section 14-6 determinations, so that a new section 14-6 determination can consolidate the relevant section 14-6 conditions of allocation into one determination. The consolidated section 14-6 determination will be created by the consolidation instrument.
Consultation
This instrument and the repeal instrument operate to repeal conditions of allocation which are no longer relevant (as the programs to which they relate have ceased operating), and will create a new determination under section 14-6 of the Aged Care Act 1997 which renews conditions of allocations that are still in operation so that they do not sunset under section 50 of the Legislation Act 2003.
Neither this instrument nor the consolidation instrument introduce new conditions of allocation. The instruments only consolidate existing conditions of allocation that are still in operation and make necessary updates to reflect recent legislative amendments. As there has been no impact to industry as a result of the operation of these instruments, no specific consultation was undertaken with respect to this instrument or the consolidation instrument.
Commencement
The instrument commences on the day of registration.
Regulation Impact Statement (RIS)
The Office of Best Practice Regulation (OBPR) has advised that no Regulation Impact Statement is required (OBPR ID 20636)
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Explanation of the provisions
Section 1
This section provides how the proposed instrument is to be cited, that is, as Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016.
Section 2
This section sets out the commencement of this instrument. The commencement date is the day this instrument is registered.
Section 3
This section provides that the authority for making this instrument. This instrument is made under subsection 14-6(1) of the Aged Care Act 1997 (the Act).
Under subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act), 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.
Accordingly, the power in subsection 14-6(1) of the Act is relied on, in conjunction with subsection 33(3) of the Acts Interpretation Act, to vary the Determination.
Section 4
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Repeals
The Schedule repeals the following determinations:
- Aged Care Act 1997—Determination under subsection 14‑6(1) made on 24 January 2002 (Federal Register of Legislation No. F2007B00651)
- Aged Care Act 1997—Determination under subsection 14‑6(1) made on 6 August 2002 (Federal Register of Legislation No. F2007B00988)
- Aged Care Act 1997—Determination under subsection 14‑6(1) made on 9 December 2003 (Federal Register of Legislation No. F2008B00054)
- Aged Care (Conditions of Allocation — Extra Service Places) Determination 2006 (No. 1) (Federal Register of Legislation No. F2006L02369)
- Aged Care Act 1997—Determination under subsection 14‑6(1) made on 19 July 2006 (ACA Ch 2 No 1/2006) (Federal Register of Legislation No. F2006L02449)
- Aged Care (Conditions of Allocation) Determination 2006 (No. 2) (Federal Register of Legislation No. F2006L04240)
- Aged Care (Conditions of Allocation ‑ Extended Aged Care at Home ‑ Dementia) Determination 2008 (No. 1) (Federal Register of Legislation No. F2008L03765)
- Aged Care (Conditions for Residential Care Allocations) Determination 2014 (Federal Register of Legislation No. F2014L00433)
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Humans Rights (Parliamentary Scrutiny) Act 2011
Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016
The Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016 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) Act 2011.
Overview of Legislative Instrument
This legislative instrument and the Aged Care (Conditions of Allocation) Determination 2016 together operate to consolidate conditions of allocation made under section 14-6 of the Aged Care Act 1997.
As at the date immediately before commencement, the conditions of allocation made under section 14-6 of the Act were contained in several determinations which made it difficult for the aged care sector to understand what conditions they were required to comply with. Further, as these conditions of allocation were not reviewed regularly, many are no longer relevant as the programs they relate to have ceased to operate, while some conditions of allocation that are still relevant are due to sunset in October 2016 due to section 50 of the Legislation Act 2003.
This instrument repeals all existing section 14-6 determinations, while Aged Care (Conditions of Allocation) Determination 2016 will create the new consolidated section 14-6 determination.
Human Rights Implications
This legislative instrument is compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health as contained in article 11(1) and article 12(1) of the International Covenant on Economic, Social and Cultural Rights, and article 25 and article 28 of the Convention on the Rights of Persons with Disabilities.
This legislative instrument repeals conditions of allocations for provisionally allocated places made under section 14-6 of the Aged Care Act 1997. Some of these conditions are no longer relevant as the program they relate to have ceased to operate. Conditions of allocation which are still relevant to programs in operation are being reproduced in the Aged Care (Conditions of Allocation) Determination 2016 to avoid sunsetting pursuant to section 50 of the Legislation Act 2003. These instruments will operate to ensure that care recipients receive appropriate care that is pursuant to specified conditions. Further, these conditions will ensure that care recipients enjoy an adequate standard of living and the highest attainable standards of physical and mental health and ensure that they are protected from exploitation, violence and abuse.
Conclusion
This legislative instrument is compatible with human rights as it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health.
[Delegate of the Secretary of the Department of Health, Kerrie Westcott]