Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016

Administered by Department of Social Services

Legislation au F2016L00356 Not in force Legislative Instrument

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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14-6 of the Act into a single determination, and ensure that relevant conditions of allocation are not automatically repealed via the sunset clause set out in section 50 of the Legislation Act 2003. 

As a result of this consolidation process, any conditions of allocation that are no longer relevant will be repealed by this instrument.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]

 

Overview

The Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016, enacted to streamline and modernise the regulatory framework governing aged care services in Australia, was introduced to address the issue of outdated and redundant conditions of allocation that had accumulated over time under the Aged Care Act 1997. This legislative instrument, made by the Secretary of the Department of Health, aims to consolidate all relevant conditions of allocation into a single determination, thereby improving clarity and accessibility for the aged care industry. It repeals outdated or irrelevant conditions while renewing those that remain necessary, ensuring that they do not lapse due to sunset clauses. This consolidation facilitates compliance by clearly outlining the conditions that approved providers must adhere to, thus supporting the overarching policy objective of maintaining high standards of care and safety for the elderly population. In summary, the Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016 seeks to rationalise the regulatory environment surrounding aged care allocations, ensuring that the conditions under which aged care services are provided are both current and enforceable. This is achieved through the repeal of outdated conditions and the consolidation of relevant provisions, thereby supporting the policy objective of delivering consistent and high-quality care to elderly Australians.

Scope and Application

The Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016 applies to the Secretary of the Department of Health, and it pertains to the allocation of aged care places for the provision of aged care services within Australia. The legislation is nationally applicable, aligning with the Commonwealth framework established by the Aged Care Act 1997. This instrument serves to repeal existing conditions of allocation determinations that have either become irrelevant due to discontinued programs or are due to sunset in October 2016. The repeal allows for the consolidation of relevant conditions into a single determination, thus simplifying compliance for approved providers and ensuring continued operation of relevant programs. The Aged Care (Conditions of Allocation) Determination 2016, made concurrently with this repeal instrument, consolidates the remaining conditions, thus avoiding automatic repeal and ensuring clarity and continuity in the provision of aged care services. No new conditions are introduced by these instruments, which only serve to update and streamline existing regulatory provisions.

Key Provisions

The Aged Care (Conditions of Allocation Instruments) Repeal Determination 2016 (the Repeal Determination) operates to repeal several determinations made under section 14-6 of the Aged Care Act 1997 (the Act) in order to facilitate the consolidation of the relevant conditions of allocation. The Repeal Determination repeals the Aged Care Act 1997—Determination under subsection 14-6(1) made on 24 January 2002 (Federal Register of Legislation No. F2007B00651), the Aged Care Act 1997—Determination under subsection 14-6(1) made on 6 August 2002 (Federal Register of Legislation No. F2007B00988), the Aged Care Act 1997—Determination under subsection 14-6(1) made on 9 December 2003 (Federal Register of Legislation No. F2008B00054), the Aged Care (Conditions of Allocation — Extra Service Places) Determination 2006 (No. 1) (Federal Register of Legislation No. F2006L02369), the 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), the Aged Care (Conditions of Allocation) Determination 2006 (No. 2) (Federal Register of Legislation No. F2006L04240), the Aged Care (Conditions of Allocation — Extended Aged Care at Home — Dementia) Determination 2008 (No. 1) (Federal Register of Legislation No. F2008L03765), and the Aged Care (Conditions for Residential Care Allocations) Determination 2014 (Federal Register of Legislation No. F2014L00433). These repealed determinations contained conditions of allocation that were either no longer relevant, duplicated provisions in the Aged Care Principles, or were better located in the Principles. The obligations imposed by the Repeal Determination are primarily concerned with the repeal of the specified determinations, ensuring that the aged care industry is not left with outdated or redundant conditions of allocation. The Act allows the Secretary to allocate places to a person to provide aged care services for a region, subject to conditions that the person receiving the allocation must comply with. The repealed determinations contained conditions of allocation that were made under section 14-6 of the Act, either in respect of allocations of places generally or allocations of places of a specified kind. By repealing these determinations, the Repeal Determination removes the conditions that are no longer relevant, ensuring that the aged care industry is not burdened with outdated requirements. There are no offences or penalties directly associated with the Repeal Determination itself, as it is a repealing instrument. However, failure to comply with the conditions of allocation that remain in effect after the repeal could result in administrative or legal consequences under the Act. For example, section 20 of the Act provides for the termination of an approval to provide aged care services if the approved provider fails to comply with a condition of the approval. Additionally, section 21 of the Act allows for the imposition of financial penalties on approved providers who fail to comply with the Act or the conditions of their approval. The maximum penalty for contravening a provision of the Act is 500 penalty units (currently AUD 57,500) for individuals and 2,500 penalty units (currently AUD 287,500) for bodies corporate. The Repeal Determination, in conjunction with the Aged Care (Conditions of Allocation) Determination 2016, aims to streamline the conditions of allocation under the Act, making it easier for the aged care industry to understand and comply with the relevant requirements. By repealing the outdated determinations and consolidating the relevant conditions of allocation into a single determination, the instruments ensure that care recipients receive appropriate care that is pursuant to specified conditions, thereby promoting their right to an adequate standard of living and the highest attainable standard of physical and mental health.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.