EXPLANATORY STATEMENT

Issued by the authority of the Deputy Secretary of the Ageing and Aged Care Group of the Department of Health, Disability and Ageing

Aged Care (Consequential and Transitional Provisions) Act 2024.

Aged Care (Consequential and Transitional Provisions) (Registration of Entities) Determination 2025 (No. 2)

Purpose and operation

The purpose of the Aged Care (Consequential and Transitional Provisions) (Registration of Entities) Determination 2025 (No. 2) (the Determination) is to ensure uninterrupted delivery of aged care services by providers following commencement of the new Aged Care Act 2024 (new Act). This Determination is made under the Aged Care (Consequential and Transitional Provisions) Act 2024. For approved providers (within the meaning of the Aged Care Act 1997 (old Act)) taken to be registered providers on commencement of the new Act, the determination provides for the period of registration and the places and beds associated with these providers. This will ensure continuity of services to older people through the transition from the old Act to the new Act.

Background

The new Act has seen a shift from ‘approved’ providers to ‘registered’ providers under a new, universal provider registration model. Universal provider registration means a single registration across all forms of aged care that an entity offers and has brought providers of existing grant-funded programs under the new regulatory model.

This Determination will facilitate the transition of five approved providers to registered providers under the new Act through the deeming of their registration period.

Authority 

Item 5 of Schedule 2 of the Aged Care (Consequential and Transitional Provisions) Act 2024 provides that the System Governor may make a determination for the purposes of paragraph 105(1)(a) and section 115 of the Aged Care Act 2024.

Specifically, the Determination provides for matters under:

• subitem 5(3), which provides that, for the purposes of subitem 5(1), the entity’s registration period for the purposes of section 115 of the new Act is taken to be the period determined by the System Governor to be appropriate for the provider. That period is to be no less than 3 months and no more than 3 years and 3 months.
• subitem 5(7), which provides that, for the purposes of subitem 5(1), each of the places taken, as determined by the System Governor to be, or be part of, an approved residential care home in relation to the entity for the purposes of the new Act.
• Subitem 5(11), which provides that, for the purposes of subitem 5(7), the determination by the System Governor of an approved residential care home must include a determination of the total number of beds for the home.

Commencement

This Determination commences on 1 November 2025.

Consultation

The Department of Health, Disability and Ageing consulted the Aged Care Quality and Safety Commission (Commission) in the preparation of 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. 

Details of the Aged Care (Consequential and Transitional Provisions) (Registration of Entities) Determination 2025 (No. 2)

Part 1—Preliminary

Section 1  Name

This section provides as the name of the instrument is the Aged Care (Consequential and Transitional Provisions) (Registration of Entities) Determination 2025 (No. 2).

Section 2  Commencement

This section sets out the date the instrument commences. It commences on 1 November 2025, which is at the same time as the Aged Care Act 2024.

Section 3  Authority

This section provides that the authority for making this Determination is provided by item 5 of Schedule 2 to the Aged Care (Consequential and Transitional Provisions) Act 2024.

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.

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)
• transitional rules (which means the rules made under item 65 of the Aged Care (Consequential and Transitional Provisions) Act 2024)
• transition time (means the time the new Act 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  Deemed registration periods and approved residential care homes for deemed registered providers.

Section 5 provides that, for the purposes of subitems 5(3), (7) and (11) of Schedule 2 to the CTP Act, for an entity specified in column 1 of an item of the table in Schedule 1 to this instrument:

• the period that is taken to be the entity’s registration period for the purposes of section 115 of the new Act is the period between the registration start day specified in Column 3 of the item and the registration end day specified in Column 4 of the item; and
• the places that are taken to be, or be part of, approved residential care homes in relation to the entity for the purposes of paragraph 105(1)(b) and section 112 of the new Act are the places (if any) specified in Column 5 of the item; and
• the total number of beds for each approved residential care home is the number of beds (if any) specified in Column 5 of the item.

The providers listed in Schedule 1 to this Determination do not have any places or beds attached to them, as they either provide care in a home or community setting, or are residential providers who have not yet begun to deliver care, and do not have any approved places.

Under subitem 5(4) of the CTP Act, the System Governor must seek and take into account the advice of the Aged Care Quality and Safety Commissioner (Commissioner) before making a determination under subitem 5(3) in relation to registration periods. In providing that advice to the System Governor, the Commissioner must have regard to the recency of any audits conducted in relation to the entity and the desirability of ensuring a smooth sequence of audits conducted under section 110 of the new Act.

Registration periods are represented by a start and end date, inclusive of the end date listed. Advice from the Commissioner was taken into account in determining these periods, which necessarily included the Commissioner having regard to the matters discussed above. When setting registration end dates, many factors were considered, including risk, regulatory intelligence and recency of audits as well as workforce management for the Aged Care Quality and Safety Commission.

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) (Registration of Entities) 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 Aged Care (Consequential and Transitional Provisions) (Registration of Entities) Determination 2025 (No. 2) (the Determination) will ensure uninterrupted delivery of aged care services by providers following commencement of the new Aged Care Act 2024 (new Act). This Determination is made under the Aged Care (Consequential and Transitional Provisions) Act 2024. For approved providers (within the meaning of the Aged Care Act 1997 (old Act)) taken to be registered providers on commencement of the new Act, the determination provides for the period of registration and the places and beds associated with these providers. This will ensure continuity of services to older people through the transition from the old Act to the new Act.

The new Act has seen a shift from ‘approved’ providers to ‘registered’ providers under a new, universal provider registration model. Universal provider registration means a single registration across all forms of aged care that an entity offers and has brought providers of existing grant-funded programs under the new regulatory model.

This Determination will facilitate the transition of three approved providers to registered providers under the new Act through the deeming of their registration period.

Human Rights Implications

The Determination directly engages the following human rights:

• The right to the highest attainable standard of physical and mental health

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 that the providers approved to provide aged care services which individuals rely upon for provision of those services can continue to deliver uninterrupted care across transition between the legislative frameworks established by the old Act to the new Act. This will ensure continuity of care for older people, including the continued access to health services, such as nursing and personal care, medication management and other therapeutic and allied health services. The objectives of this Determination therefore promote and are compatible with the right to the highest attainable standard of physical and mental health. 

Conclusion

This Determination is consistent with human rights as it provides transitional arrangements for providers delivering aged care services, to transition to the new legislative framework established by the Aged Care Act 2024. This Determination promotes human rights, including the right to the highest attainable standard of physical and mental health.

Sonja Stewart

Deputy Secretary of the Ageing and Aged Care Group of the Department of Health, Disability and Ageing