EXPLANATORY STATEMENT
Issued by the authority of the Minister for Aged Care and Seniors
Aged Care Act 2024
Aged Care (Leave from Approved Residential Care Homes) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Amendment (Extending Situation of Emergency) Determination 2025
Purpose and operation
Subsection 245(1) of the Aged Care Act 2024 (the Act) enables the Minister to determine, in writing, that there is a situation of emergency for a specified day for an approved residential care home, or a class of approved residential care homes, if the Minister is satisfied that an emergency is affected or has affected the home or homes for that day, or the community in which the home or homes are located for that day. Under the Act, individuals are taken to have been delivered ongoing funded aged care services on each day they are on leave during a determined situation of emergency (paragraph 244(3)(b) of the Act). Registered providers may therefore be eligible to receive residential care subsidy payments in respect of the individuals on leave on those days.
The Aged Care (Leave from Approved Residential Care Homes) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Amendment (Extending Situation of Emergency) Determination 2025 (the Amendment Determination) amends the Aged Care (Leave from Approved Residential Care Homes) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Determination 2025 (the Determination) to extend the existing situation of emergency for all approved residential care homes in Australia until 31 December 2026.
The Aged Care (Leave from Residential Care Services) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Determination 2020 (the 2020 Determination) was made in 2020 under paragraph 42-2(3B)(c) of the Aged Care Act 1997 (1997 Act) and has since been repealed by operation of law with the commencement of the Act (due to the repeal of the 1997 Act by the Aged Care (Consequential and Transitional Provisions) Act 2024). The 2020 Determination declared a situation of emergency for the period 1 April 2020 to 30 September 2020, therefore making emergency leave available to individuals for this period. This period was subsequently extended on six occasions, with the last extension until 31 December 2025. This current Amendment Determination extends emergency leave for the seventh time, until 31 December 2026.
Background
Under section 244 of the Act, an individual may be taken to have been delivered ongoing funded aged care services on each day that they are on leave from an approved residential care home. The leave may include any period during which an individual attends hospital and for periods of non‑hospital leave (also known as social leave) if the number of days on which the individual has been on social leave has not exceeded 52 days.
The Act also allows for emergency leave to be made available to individuals during a situation of emergency. A situation of emergency may include disasters (natural or otherwise), pandemics or epidemics, and is determined by legislative instrument made by the Minister.
Specifically, subsection 244(3) of the Act provides that an individual is considered to be on emergency leave from an approved residential care home (the affected home) on a day if:
- they are absent from the affected home during the whole of that day, and
- the Minister determines under subsection 245(1) of the Act that there is a situation of emergency for that day for the affected home or a class of approved residential care homes that includes the affected home.
If an individual is absent from an approved residential care home and not on leave in accordance with the provisions in section 244 of the Act, the registered provider may not be eligible for residential care subsidy in respect of that individual. It is then open for registered provider to charge the individual a fee to reserve a bed. Section 282 of the Act sets a maximum amount for the fee that may be charged for reserving a bed.
The availability of emergency leave avoids individuals having to utilise their social leave for a situation that is outside of their control.
Emergency leave also ensures that registered providers cannot elect to charge individuals a fee to reserve their place in a residential care service during a declared emergency. Whilst not all individuals will need to use this leave, it ensures they and their families are supported to make decisions about personal health and safety during a situation of emergency.
Authority
Subsection 245(1) of the Act provides that the Minister may determine, in writing, that there is a situation of emergency for a specified day for an approved residential care home, or a class of approved residential care homes, if the Minister is satisfied that an emergency is affecting or has affected the home or homes for that day, or the community in which the home or homes are located for that day.
Commencement
The Amendment Determination starts on the day after the instrument is registered.
Consultation
At the development of the initial instrument, the Department of Health, Disability and Ageing (the Department) undertook broad consultation occurred with a range of peak bodies, relevant experts and aged care providers. This Amendment Determination continues with the current situation, so further direct consultation is not required. The Department will, however, ensure there is ongoing communication with the aged care sector and members of the public regarding the availability of emergency leave.
Regulation Impact Statement (RIS)
The Office of Best Practice Regulation (OBPR) was consulted on Thursday 30 April 2020 and confirmed that no Regulatory Impact Statement would be required for the measure introducing emergency leave (OBPR reference 26445).
General
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Details of the Amendment Determination are set out in Attachment A.
The Amendment 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 (Leave from Approved Residential Care Homes) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Amendment (Extending Situation of Emergency) Determination 2025
Section 1 – Name
This section provides that the name of this instrument is the Aged Care (Leave from Approved Residential Care Homes) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Amendment (Extending Situation of Emergency) Determination 2025 (the Amendment Determination).
Section 2 – Commencement
This section provides that the Amendment Determination commences on the day after the Amendment Determination is registered.
Section 3 – Authority
This section provides that the Amendment Determination is made under subsection 245(1) of the Aged Care Act 2024.
Section 4 –Schedules
This section provides that the Aged Care (Leave from Approved Residential Care Homes) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Determination 2025 (the Determination) is amended as set out in Schedule 1.
Schedule 1 – Amendments
Schedule 1 sets out amendments to the Determination.
Item 1 – Section 4
Item 1 amends section 4 of the Determination to omit the words “31 December 2025” and substitute it with “31 December 2026”.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aged Care (Leave from Approved Residential Care Homes) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Amendment (Extending Situation of Emergency) Determination 2025
The Aged Care (Leave from Approved Residential Care Homes) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Amendment (Extending Situation of Emergency) Determination 2025 (the Amendment Determination) 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 the instrument
Under subsection 244(2) of the Aged Care Act 2024 (the Act), an individual may be taken to have been delivered ongoing funded aged care services on each day that they are on leave from an approved residential care home. The leave may include any period during which an individual attends hospital and for periods of non‑hospital leave (also known as social leave) if the number of days on which the individual has been on social leave has not exceeded 52 days.
The Act also allows for emergency leave to be made available to individuals during a situation of emergency. A situation of emergency may include disasters (natural or otherwise), pandemics or epidemics, and is determined by the Minister in writing.
Specifically, subsection 244(3) of the Act provides that an individual is considered to be on emergency leave from an approved residential care home (the affected home) on a day if:
- they are absent from the affected home during the whole of that day; and
- the Minister determines under section 245(1) of the Act that there is a situation of emergency for that day for the affected home or a class of approved residential care homes that includes the affected home.
If an individual is absent from an approved residential care home and not on leave in accordance with the provisions in section 244 of the Act, the registered provider may not be eligible for residential care subsidy in respect of that individual. It is then open for a registered provider to charge the individual a fee to reserve their bed in the service. Section 282 of the Act sets a maximum amount for the fee that may be charged for reserving a bed.
For the purposes of section 245 of the Act, the Amendment Determination declares the ongoing COVID‑19 pandemic as a situation of emergency. This ensures that emergency leave will continue to be available until 31 December 2026, to those individuals living in approved residential care homes across Australia.
There are still individuals in residential care who continue to wish to temporarily relocate with family to reduce their risk of exposure to the COVID-19 virus, even though that situation has eased. This emergency leave determination is also available for use in other situations, such as natural disasters. The availability of emergency leave avoids individuals having to utilise their social leave for either situation, which are both outside of their control.
The continued availability of emergency leave also ensures that approved providers cannot elect to charge individuals a fee during a declared emergency in order to reserve their bed in an approved residential care service. Whilst not all individuals will need to use this leave, it ensures they and their families are supported to make decisions about personal health and safety during a situation of emergency and not suffer unnecessary financial burden as a result.
Human rights implications
The Amendment Determination engages the following human rights as contained in Article 11 and Article 12(1) of the International Convention on Economic, Social and Cultural Rights (ICESCR), and Article 25 and Article 28 of the Convention of the Rights of Persons with Disabilities (CRPD):
- the right to an adequate standard of living, including with respect to food, clothing and housing, and to the continuous improvement of living conditions, and
- the right to the enjoyment of the highest attainable standard of physical and mental health.
The United Nations Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not a right for each individual to be healthy, but is a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.
Under the Statement of Rights, all people receiving Australian Government funded aged care services have the right to be treated with dignity and respect, and to be able to make their own choices about their care.
The COVID‑19 pandemic remains a distressing situation for both individuals in residential and their families, who rely on their surroundings and care staff for assurance they are secure and protected. Outbreaks of COVID‑19 continue to have an impact on the way care is delivered, such as changes in routine and visitor restrictions. This causes high levels of stress for individuals, leading to concern from families about the impact on physical and mental health and wellbeing. The ability to use emergency leave provides reassurance about resident safety in these situations.
By enabling approved providers to remain eligible for aged care subsidy for individuals who are absent during an emergency situation, the Australian Government will also reduce any financial pressure that may be placed on individuals who may otherwise be subject to a fee to retain their place in a residential care home, for a situation that is out of their control.
Assisting an individual to retain their place in a residential care home helps reduce potential economic burden and supports ongoing access to an adequate standard of living once the period of emergency has ended.
Conclusion
The Amendment Determination 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 as it promotes the human right of everyone, including those with a disability, to the enjoyment of the highest attainable standard of physical and mental health and the right to an adequate standard of living, including with respect to food and housing and continuous improvement of living conditions.
The Hon Sam Rae MP
Minister for Aged Care and Seniors