Aged Care (Consequential and Transitional Provisions) Determination 2025

Administered by Department of Health, Disability and Ageing

Legislation au F2025L01321 In force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the authority of the System Governor

Aged Care (Consequential and Transitional Provisions) Act 2024

Aged Care (Consequential and Transitional Provisions) Determination 2025

 

Purpose

The purpose of the Aged Care (Consequential and Transitional Provisions) Determination 2025 (the Determination) is to ensure older people accessing aged care services under the Aged Care Act 1997 (old Act) or certain other aged care programs when transitioning across to the Aged Care Act 2024 (new Act) maintain their approval and access to funded aged care services once the new Act commences on 1 November 2025. For classes of individuals transitioning to the new Act, the Determination establishes the classification level for a classification type for a service group that each of the individuals in the class is taken to be approved for under the new Act, as well as allocation of a place or priority category where applicable.

Background

The new Act requires a classification level to be established for each classification type in each service group for which an individual is approved to access funded aged care services. Where applicable, an individual will also be allocated a place and priority category. While similar concepts exist under the old Act, older people accessing services under the old Act or certain other aged care programs must be brought within the legislative framework of the new Act to continue accessing funded aged care services after 1 November 2025.

The System Governor must therefore make this Determination under the Aged Care (Consequential and Transitional Provisions) Act 2024 to ensure these individuals are smoothly transitioned across to the new Act when it commences on 1 November 2025. This Determination works together with items 2 and 3 in Schedule 2 of the Aged Care (Consequential and Transitional Provisions) Act 2024, which provide the System Governor is taken to have made certain access and approval decisions for transitioning individuals upon commencement of the new Act.

Authority

Item 4 of Schedule 2 to the Aged Care (Consequential and Transitional Provisions) Act 2024 provides that the System Governor must determine, by legislative instrument, for one or more classes of individuals transitioning from the old Act and certain other aged care programs to the new Act (that is, individuals to whom subitems 2(2) or 3(2) of the Aged Care (Consequential and Transitional Provisions) Act 2024 applies):

  • the classification level taken to be established for each of the individuals in the class at the transition time for a classification type for a service group;
  • the priority category that each of those individuals is taken to have been assigned for the classification type for the service group (if applicable);
  • that a place is taken to have been allocated for the classification type for the service group (if applicable).

 

Reliance on section 4 of the Acts Interpretation Act 1901

Section 4 of the Acts Interpretation Act 1901 provides that where an Act is enacted and at a time after its enactment the Act will confer a power to make an appointment, or to make an instrument of a legislative or administrative character, the power may be exercised before the Act’s commencement as if the commencement had occurred.

Commencement

This Determination commences on 1 November 2025.

Consultation

Due to the mechanical nature of this Determination, public consultation was not considered to be required. Consultation was undertaken between the Department of Health, Disability and Ageing, the Department of Social Services and Services Australia to prepare this Determination.

General

This Determination is a legislative instrument for the purposes of the Legislation Act 2003.

 

Details of this Determination are set out in Attachment A.

 

This Determination is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.


ATTACHMENT A

 

Details of the Aged Care (Consequential and Transitional Provisions) Determination 2025

Section 1 – Name

This section provides that the name of the instrument is the Aged Care (Consequential and Transitional Provisions) Determination 2025.

Section 2 – Commencement

This section sets out when the instrument commences. The commencement date is 1 November 2025, which is the same time as the Aged Care Act 2024 commences.

Section 3 – Authority

This section provides that the authority for making this instrument is item 4 of Schedule 2 to the Aged Care (Consequential and Transitional Provisions) Act 2024 (CTP Act).

Section 4 – Definitions

This section sets out the definitions for terms referred to in this instrument as follows:

CTP Act means the Aged Care (Consequential and Transitional Provisions) Act 2024.

CTP Rules means the Aged Care (Consequential and Transitional Provisions) Rules 2025.

Subsection (2) provides that an expression used in a provision of this instrument and defined in subitem 1(1) of Schedule 2 to the CTP Act has the same meaning in that provision as it has in that Schedule.

The legislative note explains that the following expressions used in this instrument are defined in subitem 1(1) of Schedule 2 to the CTP Act:

  • new Act (which means the Aged Care Act 2024);
  • new law (which means the Aged Care Act 2024 and an instrument made under the Aged Care Act 2024);
  • old Act (which means the Aged Care Act 1997);
  • old law (which means any of the following laws: the Aged Care Act 1997; the Aged Care Quality and Safety Commission Act 2018; the Aged Care (Transitional Provisions) Act 1997; the Principles made under section 96‑1 of the Aged Care Act 1997; the Aged Care Quality and Safety Commission Rules 2018; Principles made under section 96‑1 of the Aged Care (Transitional Provisions) Act 1997)
  • transition time (which means the time the Aged Care Act 2024 commences).

 

Subsection (3) provides that, subject to subsection (4), an expression used in a provision of this instrument and in the new law has the same meaning in that provision as it has in the new law. 

Subsection (4) provides that an expression used in a provision of this instrument and in the old law has the same meaning in that provision as it had in the old law to the extent that:

  • the use of the expression in that provision relates to an event that occurred, or a state of affairs that existed, under the old law before the transition time; or
  • the provision has the effect that a provision of the old law continues to apply despite the repeal of the old law. 

Section 5 – Service groups home support, assistive technology and home modifications

Section 5 provides for the classification level, priority category and place allocation under the new Act for classes of transitioning individuals who will be taken at transition time to be approved to access funded aged care services in the service groups home support, assistive technology and home modifications.

 

Subsection (1) provides that this section is made for the purpose of subitem 4(1) of Schedule 2 to the CTP Act.

 

This section should be read in conjunction with Divisions 2 to 4 of Part 3 of the CTP Rules which provide for the period of effect for each classification level and prioritisation category taken to be established for individuals and places taken to be allocated to those individuals at the transition time through the operation of this Determination.

Individuals approved under section 22‑1 of the old Act as recipients of home care

For individuals approved under section 22-1 of the old Act as a recipient of home care (to whom paragraph 2(2)(a) of Schedule 2 of the CTP Act applies) subsection (2) establishes the classification level, assigns a priority category and allocates a place (as applicable) for each individual in that class depending on the classification type and service group they are taken to be approved for under the new Act and the circumstances that applied to them immediately before transition time. The table at subsection 5(2) includes the following:

  • Classification type (column 1)
  • Service group (column 2)
  • Classification level (column 3)
  • Circumstances for priority category (column 4)
  • Priority category (column 5)
  • Circumstances for place allocation (column 6)

 

Each item in the table describes the circumstances that could apply to an individual who has, by operation of item 2 of Schedule 2 to the CTP Act, taken to have been approved at the transition time for a classification type (column 1) for a service group (column 2). One or more of the items could apply to an individual concurrently. The circumstances for each item are set out below.

 

Item 1

This applies to individuals who have taken to be approved under paragraph 65(2)(a) of the new Act for the classification type ongoing for the service group home support, in accordance with subparagraph 2(1)(c)(i) of Schedule 2 to the CTP Act. Classification level, priority category and place allocation depend on the individual’s circumstances immediately before the transition time.

  • For an individual who, as at immediately before the transition time, was a prioritised home care recipient, the classification level taken to be established for the individual under subsection 78(1) of the new Act is:  
    • if the individual’s level of care as a prioritised home care recipient was level 1—HCP class 1; or
    • if the individual’s level of care as a prioritised home care recipient was level 2—HCP class 2; or
    • if the individual’s level of care as a prioritised home care recipient was level 3—HCP class 3; or
    • if the individual’s level of care as a prioritised home care recipient was level 4—HCP class 4.
  • For an individual who, as at immediately before the transition time, was approved as a recipient of home care but was not a prioritised home care recipient, the classification level taken to be established for the individual under subsection 78(1) of the new Act is: 
    • if the level of care to which the individual’s approval was limited was level 1—HCP class 1;
    • if the level of care to which the individual’s approval was limited was level 2—HCP class 2;
    • if the level of care to which the individual’s approval was limited was level 3—HCP class 3;
    • if the level of care to which the individual’s approval was limited was level 4—HCP class 4.
  • For an individual who, as at immediately before the transition time, was not a prioritised home care recipient, the priority category that the individual is taken to have been assigned under subsection 86(1) of the new Act is:
    • For an individual whose priority for home care services under section 22-2A of the old Act was high—urgent.
    • For an individual who was being provided with flexible care through an innovative care service—high.
    • For an individual whose priority for home care services under section 22-2A of the old Act was medium—established under section 27 of the CTP Rules, which provides that an individual in this cohort is allocated a priority category dependent upon their circumstances as prescribed in section 87-5 of the Aged Care Rules 2025 modified such that the relevant period for item 6 in the table at that section is taken to have commenced on the day individual’s priority for home care services was determined to be medium under the old Act.

 

  • For an individual who, as at immediately before the transition time, was a prioritised home care recipient, a place is taken to have been allocated to the individual under subsection 92(1) of the new Act where the individual:
    • was a prioritised home care recipient but had not entered a home care service; or
    • had entered a home care service and had not ceased to be provided with home care through the home care service.

Column 3 of item 1 provides that an individual may have more than one classification level established in the classification type ongoing for the service group home support. However, under the new Act only one classification level will be in effect. For example, an individual may be accessing home support services with a classification level of HCP class 1 and may also be on the queue for a higher classification level such as HCP class 2. These individuals will have a priority category established for the classification level for which they are currently in the queue and a place will be allocated to them for the classification level which corresponds to the care that that individual is accessing at the transition time (it is this classification level which will be in effect).

Item 2

This applies to individuals who have taken to be approved under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group assistive technology, in accordance with subparagraph 2(1)(c)(ii) of Schedule 2 to the CTP Act.

The classification level taken to be established for the individual under subsection 78(1) of the new Act is AT Transitional and a place is also taken to have been allocated to the individual under subsection 92(1) of the new Act.

Item 3

This applies to individuals who have taken to be approved under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group home modifications, in accordance with subparagraph 2(1)(c)(iii) of Schedule 2 to the CTP Act.

The classification level taken to be established for the individual under subsection 78(1) of the new Act is HM Transitional and a place is also taken to have been allocated to the individual under subsection 92(1) of the new Act.

Individuals approved under section 221 of the old Act as recipients of flexible care in the form of short-term restorative care

Subsection (3) establishes classification levels and allocates places under the new Act in relation to individuals who were approved under section 22‑1 of the old Act as recipients of flexible care in the form of short‑term restorative care (the class of individuals to whom paragraph 2(2)(b) of Schedule 2 to the CTP Act applies).

Item 1

Subparagraph 2(1)(d)(i) of Schedule 2 to the CTP Act provides these individuals are taken to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group home support. In accordance with item 1 of the table at subsection 5(3) of the Determination, the classification level taken to be established under subsection 78(1) of the new Act is either:

  • For an individual for whom, as at immediately before the transition time, an episode of short-term restorative care had not commenced—SAH restorative care pathway; or
  • For an individual for whom, as at immediately before the transition time, an episode of short-term restorative care had commenced but had not been completed—STRC class.

Item 2

Subparagraph 2(1)(d)(ii) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group assistive technology. In accordance with item 2 of the table, the classification level taken to be established under subsection 78(1) of the new Act is either:

  • For an individual for whom, as at immediately before the transition time, an episode of short-term restorative care had not commenced—AT medium; or
  • For an individual for whom, as at immediately before the transition time, an episode of short-term restorative care had commenced but had not been completed—AT transitional.

Item 3

Subparagraph 2(1)(d)(iii) of Schedule 2 to the CTP Act provides these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group home modifications. In accordance with item 2 of the table at subsection 5(3) of the Determination, the classification level taken to be established under subsection 78(1) of the new Act is either:

  • For an individual for whom, as at immediately before the transition time, an episode of short-term restorative care had not commenced—HM medium; or
  • For an individual for whom, as at immediately before the transition time, an episode of short-term restorative care had commenced but had not been completed—HM transitional.

Under paragraph 5(3)(b) of the Determination, a place is also taken to have been allocated under subsection 92(1) of the new Act at the transition time to each individual corresponding to the established classification level for the classification type short-term for each of the service groups home support, assistive technology and home modifications.

Individuals approved under section 22‑1 of the old Act as recipients of flexible care in the form of transition care

Subsection (4) provides a classification level is taken to be established at the transition time if an individual was approved under section 22‑1 of the old Act as a recipient of flexible care in the form of transition care (the class of individuals to whom paragraph 2(2)(d) of Schedule 2 to the CTP Act applies).

Item 1

Subparagraph 2(1)(e)(i) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type hospital transition for the service group home support. In accordance with item 1 of the table at subsection 5(4) of the Determination their classification level taken to be established under subsection 78(1) of the new Act is HS HT class. These individuals are not allocated a place in relation to this classification level because these places are allocated to the provider under section 95 of the new Act.

Item 2

Subparagraph 2(1)(e)(ii) of Schedule 2 of the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type hospital transition for the service group assistive technology. Their classification level taken to be established under subsection 78(1) of the new Act is AT HT class. These individuals are not allocated a place in relation to this classification level because these places are allocated to the provider under section 95 of the new Act.

Individuals accessing, or to access, flexible care provided in a community setting through a multi‑purpose service

This section should be read in conjunction with Divisions 2 to 4 of Part 3 of the CTP Rules which provide for classification level taken to be established and, in certain circumstances, a priority category taken to be assigned at the transition time for individuals in the class of individuals to whom paragraph 2(2)(d) of Schedule 2 to the CTP Act applies. This is individuals who either:

  • were accessing flexible care provided in a home or community setting through a multi-purpose service (within the meaning of the old Principles); or
  • were party to a written agreement with an approved provider (within the meaning of the old Act) of a multi‑purpose service (within the meaning of the old Principles) which provides for the individual to commence accessing flexible care provided in a home or community setting through that service within the period of 3 months beginning at the transition time.

It is noted that the classification level or priority categories awarded will have no impact where the person continues to access services in a home or community setting delivered by a registered provider under the Multi-Purpose Service Program (MPSP).

Item 1

Subparagraph 2(1)(f)(i) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type ongoing for the service group home support.

In accordance with item 1 of the table at subsection 5(5) of the Determination the classification level taken to be established under subsection 78(1) of the new Act is HSO MPSP.

These individuals are taken to have a priority category under subsection 86(1) of the new Act of standard (if they do not already have a priority category assigned to them under item 1 of the table in subsection (2) (classification level HCP class 1, HCP class 2, HCP class 3 or HCP class 4) or item 1 of the table in subsection (7) (classification level HSO NATSIFACP)). This is because an individual can only have one priority category in effect for a service group and classification type at any one time. However, it means that an individual who is accessing ongoing services in the home support service group through a MPSP provider can also be on the queue to be allocated a place with an ongoing classification type and level for the service group home support with the priority category assigned to them through item 1 of the table under subsection (2).

Item 2

Subparagraph 2(1)(f)(i) of Schedule 2 to the CTP Act also provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group home support.

In accordance with item 2 of the table at subsection 5(5) of the Determination, these individuals are taken to have a classification level established under subsection 78(1) of the new Act of HSST MPSP. The priority category does not apply to these individuals because priority categories do not apply to short-term home support (see section 84 of the new Act). 

Item 3

Subparagraph 2(1)(f)(ii) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group assistive technology.

In accordance with item 3 of the table at subsection 5(5) of the Determination, the classification level taken to be established under subsection 78(1) of the new Act is AT transitional and an immediate priority category is taken to be assigned under subsection 86(1) of the new Act.

Item 4

Subparagraph 2(1)(f)(iii) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group home modifications.

In accordance with item 4 of the table, the classification level taken to be established under subsection 78(1) of the new Act is HM transitional and an immediate priority category is taken to be assigned under subsection 86(1) of the new Act.

Individuals assessed as eligible for Commonwealth Home Support Program services

This section should be read in conjunction with Divisions 2 to 4 of Part 3 of the CTP Rules which provide for a classification level taken to be established and, in certain circumstances, a priority category is taken to be assigned at the transition time for an individual who had been assessed as eligible for Commonwealth Home Support Program (CHSP) services.

Item 1

Subparagraph 2(1)(c)(i) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type ongoing for the service group home support. In accordance with item 1 of the table at subsection 5(6) of the Determination, the classification level taken to be established under subsection 78(1) of the new Act is CHSP transitional. A priority category is not applicable to this classification level. 

Item 2

Subparagraph 2(1)(c)(ii) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group assistive technology. In accordance with item 2 of the table, the classification level taken to be established under subsection 78(1) of the new Act is AT CHSP. In relation to this classification level, the priority category taken to be assigned under subsection 86(1) of the new Act is immediate.

Item 3

Subparagraph 2(1)(c)(iii) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group home modifications. the classification level taken to be established under subsection 78(1) of the new Act is HM CHSP. In relation to this classification level, the priority category taken to be assigned under subsection 86(1) of the new Act is immediate.

Individuals are not required to be allocated a place to access funded aged care services under the CHSP classification levels and so places are not allocated to individuals in relation to the following:

  • CHSP transitional;
  • AT CHSP;
  • HM CHSP.

Individuals who had accessed services under the National Aboriginal and Torres Strait Islander Flexible Aged Care Program

Subsection (7) provides a classification level is taken to be established and, in certain circumstances, a priority category is taken to be assigned at the transition time for an individual that had, at any time in the 12 months immediately before transition, accessed services under the National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP). These are individuals in the class of individuals to whom s 2(2)(f) of Schedule 2 to the new Act applies.

Item 1

Paragraph 2(1)(h) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type ongoing for the service group home support.

In accordance with item 1 of the table at subsection 5(7) of the Determination, the classification level taken to be established under subsection 78(1) of the new Act is HSO NATSIFACP.

In relation to this classification level, the priority category taken to be assigned under subsection 86(1) of the new Act is urgent (if they do not already have a priority category assigned to them under item 1 of the table in subsection (2) (classification level HCP class 1, HCP class 2, HCP class 3 or HCP class 4)). This is because an individual can only have one priority category in effect for a service group and classification type at any one time. However, it means that an individual who is accessing services under a NATSIFACP provider can also be on the queue with an ongoing classification type and level for the service group home support with the priority category assigned to them through item 1 of the table under subsection (2).

Item 2

Paragraph 2(1)(h) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group home support.

In accordance with item 2 of the table, the classification level taken to be established under subsection 78(1) of the new Act is HSST NATSIFACP. A priority category is not applicable to this classification level as priorities are not established for short-term home support.

Item 3

Paragraph 2(1)(h) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group Assistive Technology.

In accordance with item 3 of the table, the classification level taken to be established under subsection 78(1) of the new Act is AT transitional. In relation to this classification level, the priority category taken to be assigned under subsection 86(1) of the new Act is immediate.

Item 4

Paragraph 2(1)(h) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group home modifications.

In accordance with item 4 of the table, the classification level taken to be established under subsection 78(1) of the new Act is HM transitional. In relation to this classification level, the priority category taken to be assigned under subsection 86(1) of the new Act is immediate.

Section 6 – Service group residential care

Section 6 of the Determination provides for the classification level and place allocation for transitioning individuals in specified classes to whom subitem 3(2) of Schedule 2 to the CTP Act applies. They are individuals who will be taken to be approved to access funded aged care services in the service group residential care under the new Act. This includes individuals who were:

  • approved under section 22-1 of the old Act as recipients of residential care; or
  • approved under section 22‑1 of the old Act as a recipient of residential care and flexible care in the form of transition care (within the meaning of the old Principles); or
  • accessing flexible care provided in a residential setting through a multi‑purpose service (within the meaning of the old Principles); or
  • party to a written agreement with an approved provider (within the meaning of the old Act) of a multi‑purpose service (within the meaning of the old Principles) which provides for the individual to commence accessing flexible care provided in a residential setting through that service within the period of 3 months beginning at the transition time; or
  • at any time in the previous 12 months, receiving services under NATSIFACP.

These individuals have, by operation of item 3 of Schedule 2 to the CTP Act, taken to be approved at the transition time for a classification type in the service group residential care.  

Subsection 6(a) provides that a classification level is taken to be established for an individual in each specified class depending on the classification type in the service group residential care they are taken to be approved for and their circumstances as at immediately before the transition time.

This section should be read in conjunction with Divisions 2 to 4 of Part 3 of the CTP Rules which provide for the period of effect for each classification level and prioritisation category taken to be established for individuals and places taken to be allocated to those individuals at the transition time through the operation of this Determination.

Item 1

For individuals within the cohort established by paragraphs 3(2)(a) or (c) of Schedule 2 to the CTP Act, subparagraphs 3(1)(c)(i) and (iii) of Schedule 2 to the CTP Act respectively provide that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type ongoing for the service group residential care. This includes individuals who were:

  • approved under section 22‑1 of the old Act as a recipient of residential care and that approval did not include a limitation under paragraph 22‑2(1)(c) of the old Act (which deals with the provision of respite care); or
  • approved under section 22‑1 of the old Act as a recipient of residential care and the terms of that approval expressly covers the provision of respite care.

In accordance with item 1 of the table at section 6 of the Determination, the classification level taken to be established under subsection 78(1) of the new Act for these individuals is as follows:

  • For an individual for whom, as at immediately before the transition time, a classification for non-respite care was not in effect—class 0, or
  • For an individual for whom, as at immediately before the transition time, a classification for non-respite care was in effect—the class corresponding to their class immediately before the transition time. For example, if the individual had a class of 2 under the old Act, then their classification level is taken to be class 2 under the new Act at the transition time.

Item 2

For individuals within the cohort established by paragraph 3(2)(b) or (c) of Schedule 2 to the CTP Act, subparagraphs 3(1)(c)(ii) and (iii) of Schedule 2 to the CTP Act respectively provide that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group residential care. This includes individuals who were:

  • approved under section 22‑1 of the old Act as a recipient of residential care and that approval included a limitation under paragraph 22‑2(1)(c) of the old Act (which deals with the provision of respite care); or
  • approved under section 22‑1 of the old Act as a recipient of residential care and the terms of that approval expressly covers the provision of respite care.

In accordance with item 2 of the table, these individuals are taken to have a classification level established under subsection 78(1) of the new Act as follows:

  • For an individual for whom, as at immediately before the transition time, a classification for respite care was not in effect—respite class 0, or
  • For an individual for whom, as at immediately before the transition time, a classification for respite care was in effect—the class corresponding to their respite class immediately before the transition time. For example, if the individual had a respite class of 2 under the old Act, then their classification level is taken to be respite class 2 under the new Act at the transition time.

Item 3

For individuals in the cohort established by paragraph 3(2)(d) of Schedule 2 to the CTP Act, subparagraph 3(1)(c)(iv) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type hospital transition for the service group residential care. This includes individuals who were:

  • approved under section 22‑1 of the old Act as a recipient of residential care and flexible care in the form of transition care (within the meaning of the old Principles).

In accordance with item 3 of the table, these individuals are taken to have a classification level established under subsection 78(1) of the new Act of RC HT class.

Item 4

For individuals in the cohort established by paragraph 3(2)(e) of Schedule 2 to the CTP Act, subparagraph 3(1)(c)(iii) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type ongoing for the service group residential care. This includes individuals who were:

  • accessing flexible care provided in a residential setting through a multi‑purpose service (within the meaning of the old Principles) (subparagraph (3)(2)(e)(i)); or
  • party to a written agreement with an approved provider (within the meaning of the old Act) of a multi‑purpose service (within the meaning of the old Principles) which provides for the individual to commence accessing flexible care provided in a residential setting through that service within the period of 3 months beginning at the transition time (subparagraph (3)(2)(e)(ii)); or
  • at any time in the previous 12 months, receiving services under NATSIFACP (subparagraph (3)(2)(e)(iii)).

In accordance with item 4 of the table, these individuals are taken to have a classification level established under subsection 78(1) of the new Act as follows:

  • For an individual referred to in subparagraph 3(2)(e)(i) or (ii) of Schedule 2 to the CTP Act, the classification level is RCO MPSP, or
  • For an individual referred to in subparagraph 3(2)(e)(iii) of Schedule 2 to the CTP Act, the classification level is RCO NATSIFAP.

Item 5

For individuals in the cohort established by paragraph 3(2)(e) of Schedule 2 to the CTP Act, subparagraph 3(1)(c)(iii) of Schedule 2 to the CTP Act provides that these individuals are determined to have an approval under paragraph 65(2)(a) of the new Act for the classification type short-term for the service group residential care. This includes individuals who were:

  • accessing flexible care provided in a residential setting through a multi‑purpose service (within the meaning of the old Principles) (subparagraph (3)(2)(e)(i)); or
  • party to a written agreement with an approved provider (within the meaning of the old Act) of a multi‑purpose service (within the meaning of the old Principles) which provides for the individual to commence accessing flexible care provided in a residential setting through that service within the period of 3 months beginning at the transition time (subparagraph (3)(2)(e)(ii)); or
  • at any time in the previous 12 months, receiving services under NATSIFACP (subparagraph (3)(2)(e)(iii)).

In accordance with item 5 of the table, these individuals are taken to have a classification level established under subsection 78(1) of the new Act as follows:

  • For an individual referred to in subparagraph 3(2)(e)(i) or (ii) of Schedule 2 to the CTP Act, the classification level is RCST MPSP, or
  • For an individual referred to in subparagraph 3(2)(e)(iii) of Schedule 2 to the CTP Act, the classification level is RCST NATSIFAP.

Subsection 6(b) provides that all individuals to whom subitem 3(2) of the CTP Act applies are taken to have been allocated a place under subsection 92(1) of the new Act for each classification type and classification level in the service group residential care taken to have been approved for them at the transition time.

Despite an individual being able to hold approvals which establish a number of classification levels that could apply to the same classification type within the service group residential care by the operation of this section, only one classification level may be in effect for a classification type at any one time. For example, an individual who is accessing residential care under MPSP as at immediately before the transition time may continue to access that care from the transition time under an approval which provides for the service group residential care with a classification type ongoing and classification level RCO MPSP while also holding an approval and a place to access funded aged care services in the service group residential care with a classification type of ongoing with a classification level of Class 0. Should that individual choose to leave the Multi-Purpose Service where they are a resident and access services at a mainstream residential care home, the RCO MPSP classification level would then cease to be in effect, with a new classification level to come into effect once an AN-ACC classification assessment has been completed and a new classification level determined.


ATTACHMENT B

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Aged Care (Consequential and Transitional Provisions) Determination 2025

 

This Disallowable Legislative Instrument 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 Legislative Instrument

The purpose of the Aged Care (Consequential and Transitional Provisions) Determination 2025 (the Determination) is to ensure care recipients accessing aged care services under the Aged Care Act 1997 (old Act) or certain other aged care programs who are transitioning across to the Aged Care Act 2024 (new Act) maintain their approval and access to funded aged care services once the new Act commences on 1 November 2025. For classes of individuals transitioning to the new Act, the Determination establishes the classification level for a classification type for a service group that each of the individuals in the class is taken to be approved for under the new Act as well as allocation of a place or priority category where applicable.  

The new Act requires individuals approved to access funded aged care services to be given a classification level for a classification type for each service group. Where applicable, an individual will also be allocated a place and priority category. While similar concepts exist under the old Act, aged care recipients receiving services under the old Act or certain other aged care programs must be brought within the legislative framework of the new Act to continue receiving funded aged care services after 1 November 2025

The System Governor must therefore make this Determination under the Aged Care (Consequential and Transitional Provisions) Act 2024 (CTP Act) to ensure these care recipients are smoothly transitioned across to the new Act when it commences on 1 November 2025. This Determination works together with items 2 and 3 in Schedule 2 of the CTP Act, which provide the System Governor is taken to have made certain access and approval decisions for transitioning individuals upon commencement of the new Act.

 

Human Rights Implications

The Determination directly engages the following human rights:

  • The right to equality and non-discrimination in articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR), article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 5 of the Convention on the Rights of Persons with Disabilities (CRPD);
  • the right to privacy in article 17 of the ICCPR and article 22 of the CRPD;
  • the right to social security in article 9 of the ICESCR;
  • the right to health in article 12 of the ICESCR and article 25 of the CRPD;
  • the rights of older persons and persons with disability in articles 10, 25 and 28 of the CRPD.

Right to equality and non-discrimination

The right to equality and non-discrimination are contained in articles 2 and 26 of the ICCPR, article 2(2) of the ICESCR and article 5 of the CRPD. These articles affirm that all individuals are equal before the law and entitled to the equal protection of the law without discrimination. They require that laws and administrative measures are non-discriminatory in both purpose and effect.

The Determination applies equally to all care recipients transitioning from the old Act to the new Act. This Determination ensures continuity of access to funded aged care services regardless of disability, gender, or cultural background. This Determination recognises the continuity of care for individuals receiving services under diverse programs such as residential care, home care, the Commonwealth Home Support Programme (CHSP), the National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP), the Transition Care Program (TCP), and Multi-Purpose Services Program (MPSP).

By maintaining uninterrupted access to care for individuals, the Determination promotes equity of treatment. Transitional deeming arrangements apply uniformly, and any differential treatments (such as the treatment of individuals accessing funded aged care services under specialist aged care programs including the MPSP and NATSIFACP) is based on objective and reasonable criteria reflecting operational differences. This Determination is compatible with the right to equality and non-discrimination and advances it by ensuring all individuals continue to receive funded aged care services on an equal basis during the transition. 

Right to privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. Article 22 of the CRPD outlines a similar right. Although the United Nations Human Rights Committee (Human Rights Committee) has not defined ‘privacy’, it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy under article 17 can be permissibly limited to achieve a legitimate objective and where the limitations are lawful and not arbitrary. The term ‘unlawful’ in article 17 of the ICCPR means that no interference can take place except as authorised under domestic law. Additionally, the term ‘arbitrary’ in article 17(1) of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in particular circumstances. The Human Rights Committee has interpreted ‘reasonableness’ to mean that any limitation must be proportionate and necessary in the circumstances.

This Determination relies on there being information about all approved care recipients of funded aged care services including whether they are accessing services immediately before the transition time, what program they are accessing the services, the level of care (as required) and whether they are accessing the services under a specialist aged care program, namely CHSP, NATSIFACP, MPSP or TCP. This information will be used to deem service groups, classification types, classification levels and priority categories and place allocations (as required).

These provisions engage the right to privacy as the CTP Act authorises the transfer and continued use of personal information held under the old Act or under a grant agreement. The engagement is lawful, reasonable and proportionate because it is necessary to ensure continuity of care and does not expand the scope of permissible information use beyond what was already authorised. Therefore, this Determination is compatible with the right to privacy. Any interference is neither arbitrary nor unlawful and is reasonable, necessary and proportionate to the legitimate objective of preserving uninterrupted care.

Right to social security

The right to social security is contained in article 9 of the ICESCR and includes the right to access and maintain benefits, whether in cash or kind, without arbitrary withdrawal. In the aged care context, this includes access to publicly funded aged care services that support an adequate standard of living.

This Determination ensures individuals who were approved aged care recipients under the old Act continue to be recognised and supported under the new Act. This Determination preserves existing entitlements and payment arrangements until new assessments or determinations occur under the new system.

By maintaining continuity of aged care benefits and funding, the rules advance the right to social security. No provisions limit the access to existing support; instead, they provide assurance that no person will experience a lapse in services or financial support due to legislative change. This Determination, therefore, promotes and is fully compatible with the right to social security.

Right to the highest attainable standard of physical and mental health

The right to health is contained under article 12(1) of the ICESCR and article 25 of the CRPD. These articles refer to the right of individuals, including persons with disability, to the highest attainable standard of physical and mental health. The UN Committee on Economic Social and Cultural Rights has stated it includes the right to control one’s health and body and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.

This Determination engages the right to the highest attainable standard of physical and mental health by ensuring individuals who entered the aged care system under the old Act can continue to receive the same level of care under the new Act. Subitems 2 to 4 of Schedule 2 to the CTP Act and Parts 3 and 4 of the Aged Care (Consequential and Transitional Provisions) Rules 2025 deal with transitioning individuals, where individuals who were approved under the old Act to receive residential care, home care, or flexible care, or were approved for the CHSP or the NATSIFAC Program, will be transitioned to the new Act. This Determination then provides for classification level, prioritisation and place allocation decisions to be taken to have been made in relation to these individuals to enable them to access funded aged care services under the new Act that correspond to the type of care they were receiving under the old Act. 

This ensures individuals will continue to be able to access health facilities and goods, including nursing and personal care services, medication management services, therapeutic and allied health services and leisure and interest activities. The objectives of this Determination therefore advance and are compatible with the right to health. 

Right to older persons and persons with disability

Right to older persons and persons with disability is contained in articles 10, 25 and 28 of the CRPD. These rights affirm the inherent dignity and equality of persons with disabilities and older persons and require States Parties to ensure access to health, rehabilitation, and social services on an equal basis with others.

This Determination ensures that individuals (many of whom are older persons or persons with disability) continue to receive appropriate aged care services during the legislative transition. By preventing service interruption and ensuring continued person-centred care, this Determination promotes the dignity, independence and inclusion of older persons and persons with disability. Therefore, this Determination advances the protection of the rights of older persons and persons with disability and are fully compatible with the CRPD.

Conclusion

This Determination is consistent with human rights as it provides transitional arrangements for current individuals accessing aged care services under the old Act and the CHSP and NATSIFAC programs to transition to the new aged care system under the new Act. This Determination promotes human rights, including the right to the highest attainable standard of health and the right to access information. To the extent that it may limit certain rights, such as the right to privacy, those limitations are lawful, reasonable, necessary and proportionate to the legitimate objective of ensuring continuity of funded aged care services and regulatory certainty during the transition to the new Act.

 

Blair Comley PSM

System Governor

 

 

 

Interactions

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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.