EXPLANATORY STATEMENT

Issued by the authority of the Secretary 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

Purpose and operation

The purpose of the Aged Care (Consequential and Transitional Provisions) (Registration of Entities) Determination 2025 (Determination) is to ensure uninterrupted delivery of aged care services by providers after 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)) who are taken to be registered providers on commencement of the new Act, the determination provides for the period of registration and establishes registration categories that are aligned to the services they deliver. This will ensure continuity of services to older people on transition from the old Act to the new Act. It also determines the kinds of providers who are not to be taken as registered providers under the new Act because they were inactive at the time of transition from the old Act to the new Act. 

Background

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

Under the new Act, only registered providers can deliver funded aged care services. They must be registered in at least one of the six registration categories. Therefore, all active approved providers under the old Act must become registered providers under the new Act to ensure continuity of services for older people.

This Determination will facilitate the transition of approved providers to registered providers under the new Act. A separate determination, to be made under Item 6 of Schedule 2 of the Aged Care (Consequential and Transitional Provisions) Act 2024, will provide for the registration of providers who are not currently approved providers within the meaning of the old Act, such as those providers delivering grant-funded aged care services.

Through the operation of this Determination, approved providers will be registered in registration categories aligned to the services they delivered under the old Act or in line with the services delivered under their funding agreement, immediately before transition time (being when the new Act commences). This approach allows for a planned, orderly transition between regulatory frameworks that will maintain the continuity of service, ensuring all older people receiving care experience no interruption in the aged care services on which they rely.

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(2), which provides that subitem 5(1) (which deems certain entities to be registered providers at the transition time) does not apply in relation to entity if the System Governor determines that the entity is an inactive provider because the entity had not, before the transition time, claimed subsidy (within the meaning of the old Act) for a period of time that the System Governor considers significant.
• 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(6), which provides that, for the purposes of subitem 5(1), the entity is for the purposes of paragraph 105(1)(a) of the new Act taken to be registered in the registration categories determined by the System Governor to be appropriate for the entity, having regard to the matters set out in paragraphs (a) to (d).
• subitem 5(7), which provides that, for the purposes of subitem 5(1), each of the following places is taken, as determined by the System Governor having regard to any rules made for the purposes of subsection 10(5) of the new Act and in accordance with any determination under subitem 5(9), to be, or be part of, an approved residential care home in relation to the entity for the purposes of paragraph 105(1)(b) and section 112 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, having regard to the matters set out in paragraphs (a) and (b).

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

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

Engagement with the aged care sector, commencing in October 2024, consisted of a multi-stage deeming validation activity with providers to ensure the business rules which underpin the transition of approved providers to registered providers with registration categories under the new Act works as intended. These stages included: 

• A request was sent to 1,921 providers to nominate an appropriate contact to review the providers registration categories, details and where applicable residential care homes. Not all providers received a request to nominate a contact due to other engagements in train such as government providers.
• 1,358 (71%) providers completed contact nomination requests.
• The department sent 1,191 providers a deeming validation survey to review and provide feedback on their registration categories, details and where applicable residential care homes. 

Some providers who nominated a contact did not receive the deeming validation survey because they:

• were directly engaged by the department to discuss their specific circumstances and how they will be deemed, for example current providers who are the trustees of a trust.
• completed the contact nomination survey after the final deeming validation survey release. The nominated contacts of these providers were collected to support future provider engagement on deeming.  

A Provider Registration Preview was an additional opportunity for the sector to determine the correct registration categories and details for each registered provider.

Commencing in April 2025, provider registration previews were sent to 1,959 providers. The preview period was open from 1 April to 1 June 2025.

The preview period allowed providers to review their proposed registration categories and other relevant details based on the services they are currently delivering or are required to deliver under a funding agreement.

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

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.

Section 2  Commencement

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

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  Providers deemed to be inactive

Section 5(1) provides that, for the purposes of subitem 5(2) of Schedule 2 to the CTP Act, an entity of a kind to which this section applies is an inactive provider if the entity had not claimed subsidy (within the meaning of the old Act) at any time during the period of 12 months ending immediately before the commencement of the new Act.

Section 5(2) provides that this section applies to every kind of entity, other than the following:

• each provider of a kind who had been approved as an approved provider (within the meaning of the old Act) during the 12 months before the transition time
• each provider of a kind who had, during the 12 months before the transition time, been approved to provide a new type of aged care (within the meaning of the old Act)
• each provider of a kind who, immediately before the transition time and to the System Governor’s satisfaction, had taken reasonable steps to begin offering a residential care service
• each provider of a kind in relation to whom a provisional allocation (within the meaning of subsection 15-1(2) of the old Act) was in force immediately before the transition time.

Under subitem 5(2) of Schedule 2 to the CTP Act, the determination that a provider is inactive must take into account whether an entity had not claimed subsidy for a period the System Governor considers significant. This period has been determined to be 12 months as data analysis demonstrated that, after 12 months, most providers who had not claimed a subsidy did not intend to claim a future subsidy, the exceptions being those detailed above. This is also consistent with the approach for determining registration categories for a provider, where the System Governor must have regard to services delivered by an entity in the 12 months prior to commencement of the new Act.

Under the old law, there was no requirement for the revocation of a provider’s approval after a period of significant inactivity. While there was the ability for a provider to request revocation of their approval when they ceased delivering services, this pathway was not always taken up. If entities that do not intend to actively deliver funded aged care services are transitioned to the new Act, it would result in:

• increased Commission workload through renewal, monitoring and audits for providers who may remain inactive

• registering providers who are unable to meet the new registration requirements

• incorrect or obsolete data being transferred to new systems.

The exceptions to the determination of inactivity as set out in section 5(2) of the Determination are informed by feedback from the sector. To ensure providers are not unfairly disadvantaged, those who have recently joined the sector or who have been approved for a new care type under the old law but not yet commenced delivery or claimed subsidy for those services are excluded from the determination of inactivity. In addition, there will be recognition for the time it can take to open a residential care home. Providers who would not otherwise have been active (i.e. they have not claimed subsidy in the last 12 months) will not be included in the determination of inactivity if they have demonstrated they have taken reasonable steps towards delivering residential services. This could include construction or refurbishment of a residential care home being in progress, or where they have been allocated provisional places under the old law.

Section 6  Provider registration categories

Section 6(1) of the Determination provides that this section is made for the purposes of subitem 5(6) of Schedule 2 to the CTP Act.

 Residential care

Section 6(2) provides that an entity who, immediately before the transition time, was approved to provide residential care is taken to be registered in the provider registration category residential care at the transition time.

Home care

Section 6(3) provides that an entity who, immediately before the transition time, was approved to provide home care is taken to be registered in each of the following provider registration categories:

• home and community services
• assistive technology and home modifications
• advisory and support services
• personal and care support in the home or community
• nursing and transition care.

Section 6(4) provides that, despite subsection (3), an entity to whom that subsection applies is not taken to be registered in the provider registration category nursing and transition care if the entity notified the System Governor before the transition time that the entity did not provide nursing services before the transition time or did not want to be registered in that category.

Home care providers will be taken to be registered in all home or community setting registration categories in recognition that under the old Act, providers were required to deliver all services that an older person needed, but were not required to deliver all services an older person was eligible for under their home care package. Broadly deeming home care providers was the best way to support continuity of care, as under the new Support at Home program, an older person can only select a single provider through which they will access funded aged care services.

The only exception was the opt out for registration into registration category 5 – nursing and transition care. Not all providers delivered nursing services under the old framework, and as such, to reflect current arrangements, providers were given the opportunity to opt out of this registration category before transition.

Flexible care—short‑term restorative care

Section 6(5) provides that an entity who, immediately before the transition time, was approved to provide flexible care as short-term restorative care is taken to be registered in each of the following provider registration categories:

• home and community services
• assistive technology and home modifications
• advisory and support services
• personal and care support in the home or community
• nursing and transition care.

This provision was informed by the incorporation of short-term restorative care delivered under the old Act into the new Support at Home program under the Restorative Care Pathway. This means providers of this kind of flexible care could only be registered into the categories that cover services in the home or community setting. As this is intended to be restorative care that is supported by a multidisciplinary team it was not appropriate for these providers to opt out of registration in the nursing and transition care category.

Flexible care—MPSP

Section 6(6) provides that an entity who, immediately before the transition time, was approved to provide flexible care through a multi‑purpose service is taken to be registered in each of the following provider registration categories:

• home and community services
• assistive technology and home modifications
• advisory and support services
• personal and care support in the home or community
• nursing and transition care
• residential care.

This provision reflects that the Multi-Purpose Services Program (MPSP) is delivered in both residential settings as well as home and community settings. It was therefore necessary and appropriate that providers delivering care under the MPSP were deemed to be registered in all 6 provider registration categories.

Flexible care—TCP

Section 6(7) provides that an entity who, immediately before the transition time, was approved to provide flexible care as transition care is taken to be registered in each of the following provider registration categories:

• home and community services
• assistive technology and home modifications
• advisory and support services
• personal and care support in the home or community
• nursing and transition care
• residential care

This provision reflects that the Transition Care Program (TCP) is delivered in both residential settings as well as home and community settings. It was therefore necessary and appropriate that providers delivering care under the TCP were deemed to be registered in all 6 provider registration categories.

Section 7  Deemed registration periods and approved residential care homes for deemed registered providers.

Section 7 provides that, for the purposes of subitems 5(3), (6), (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 2 of the item and the registration end day specified in Column 3 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 4 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.

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.

Registration end dates will be a minimum of 6 months from 1 November 2025, which is greater than the legislated minimum period of 3 months to support providers transitioning to the requirements under the new Act. Providers were given an indicative registration end date as part of the provider registration preview in April 2025. These dates may have shifted slightly in the interim, particularly with the commencement of the new Act being deferred to 1 November 2025.

The total number of beds for each approved residential care home has been informed by data the Department holds and is based on the number of both operational and “offline” places at residential care services under the old Act. Providers through the Places to People reform were able to apply for additional beds following the conclusion of the former Aged Care Approvals Rounds. In addition, providers were encouraged to review and update their details through processes under the old Act in the lead up to commencement. This provided the detail required to determine the total number of beds in each residential care home.

Accredited residential care services under the old law that will be deemed as approved residential care homes under the new Act with only “pre-operational” places will have their total number of beds set to zero. Once ready to commence delivery of funded aged care services, these providers will need to vary the total number of beds for that approved residential care home with the Commission under the ordinary processes to do so provided for under section 137 of the new Act.

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 (the Determination) will ensure uninterrupted delivery of aged care services by providers after 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)) who are taken to be registered providers on commencement of the new Act, the determination provides for the period of registration and establishes registration categories that are aligned to the services they deliver. This will ensure continuity of services to older people on transition from the old Act to the new Act. It also determines the kinds of providers who are not to be taken as registered providers under the new Act because they were inactive at the time of transition from the old Act to the new Act. 

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

Under the new Act, only registered providers can deliver funded aged care services. They must be registered in at least one of the six registration categories. Therefore, all active approved providers under the old Act must become registered providers under the new Act to ensure continuity of services for older people.

Through the operation of this Determination, approved providers will be registered in registration categories aligned to the services they delivered under the old Act or in line with the services delivered under their funding agreement, immediately before transition time (being when the new Act commences). This approach allows for a planned, orderly transition between regulatory frameworks that will maintain the continuity of service, ensuring all older people receiving care experience no interruption in the aged care services on which they rely.

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.

Blair Comley PSM

System Governor