EXPLANATORY STATEMENT
Issued by the authority of the Secretary for Social Services
Aged Care Act 1997
Aged Care (Secretary’s Determinations) Repeal Instrument 2014
The Aged Care Act 1997 (the Aged Care Act) provides for the regulation and funding of aged care services. Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy payments in respect of the care they provide to approved care recipients.
On 20 April 2012, the former Government announced the Living Longer Living Better aged care reform package to reshape aged care. Included in the package of reforms was the enactment of the Aged Care (Living Longer Living Better) Act 2013 which amends the Aged Care Act and enacts the Aged Care (Transitional Provisions) Act 1997 (the Transitional Provisions Act).
From 1 July 2014, the Transitional Provisions Act will operate alongside the Aged Care Act. The Transitional Provisions Act will provide for ‘continuing care recipients’, that is those who were receiving care through an aged care service before 1 July 2014 and have not since 1 July 2014, left that service for more than 28 days (other than while on leave) or, have not moved services and elected to be subject to the new arrangements. The Transitional Provisions Act deals only with arrangements for fees, subsidies and payments which are required to be preserved for continuing care recipients.
All other provisions which apply consistently to both continuing care recipients and care recipients who enter care on or after 1 July 2014, are contained only within the Aged Care Act. The Aged Care Act will also describe the subsidy and fee arrangements for care recipients who enter care on or after 1 July 2014.
As part of these changes, new Principles and Determinations (delegated legislation) are required to support both the Aged Care Act and the Transitional Provisions Act.
Therefore, most Principles and Determinations made under the Aged Care Act and in operation as at 30 June 2014 will be repealed in order for new Principles and Determinations to commence on 1 July 2014. The Principles and Determinations that were made by the Secretary will be repealed through a single instrument – the Aged Care (Secretary’s Determinations) Repeal Instrument 2014 (the Repeal Instrument).
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make a legislative instrument, that power shall be construed as including a power to revoke the instrument. This provides the Secretary with the power to make this Repeal Instrument.
The Repeal Instrument repeals the following Determinations:
- Aged Care (Residential care subsidy - amount of maximum asset threshold) Determination 2008 made by the Secretary under paragraph 44-5B(1)(c) of the Aged Care Act 1997; and
- Aged Care (Residential Care Subsidy) (Viability Supplement - Eligible Residential Care Services) Determination 2005 (No.2) made by the Secretary under subsection 44-29(2) of the Aged Care Act 1997.
The two instruments are being repealed because, from 1 July 2014 the Aged Care Act will no longer include the provisions under which the two instruments were made. Equivalent provisions will exist in the Transitional Provisions Act which will commence on 1 July 2014.
It is intended that an instrument dealing with the same matters as the two instruments that are being repealed will be made by the Secretary under the Transitional Provisions Act and will commence on 1 July 2014.
The Repeal Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
In April 2012, the former Government launched a major program of aged care reforms. The reform agenda was developed in close consultation with the aged care sector, including consumers, industry and professional bodies.
As part of the consultation on the proposed changes to the Act, and to delegated legislation, arising from the reforms, the former Government communicated its intention to examine the delegated legislation and, where possible, simplify it.
This intent was communicated in November 2012, with the public release of a paper providing an overview of the proposed legislative changes. A video presentation detailing the proposed reforms was also made available online to assist members of the public to understand these changes.
During late 2012 and in the first half of 2013, briefing sessions were held across Australia to provide information and to explain, in detail, the proposed legislative changes included in the package of Bills introduced into Parliament on 13 March 2013. As part of these consultations, the intention to make related changes to delegated legislation was again discussed. For those interested members of the public unable to attend the briefings, the presentation, supporting handouts, a detailed Question and Answer document and an information video were made available online.
In early 2014, consultation was undertaken on those Principles that reflected significant policy changes. As part of this consultation it was noted that existing Principles and Determinations would be repealed and replaced with new Principles and Determinations from 1 July 2014.
As this Repeal Instrument is machinery only and does not include any policy issues, an exposure draft of the Repeal Instrument was not released for public comment.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no RIS is required
(OBPR ID 16682).
Commencement
This instrument commences on 1 July 2014.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aged Care (Secretary’s Determinations) Repeal Instrument 2014
The Aged Care (Secretary’s Determinations) Repeal Instrument 2014 (the Repeal Instrument) is compatible with the human rights and freedoms recognised and declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Repeal Instrument repeals the following two instruments:
- Aged Care (Residential care subsidy—amount of maximum asset threshold) Determination 2008 made by the Secretary under paragraph 44-5B(1)(c) of the Aged Care Act 1997; and
- Aged Care (Residential Care Subsidy) (Viability Supplement—Eligible Residential Care Services) Determination 2005 (No.2) made by the Secretary under subsection 44-29(2) of the Aged Care Act 1997.
The two instruments are being repealed because, from 1 July 2014 when Schedule 5 to the Aged Care (Living Longer Living Better) Act 2013 commences, the Aged Care Act 1997 will no longer include the provisions under which the two instruments were made. Equivalent provisions will exist in the Aged Care (Transitional Provisions) Act 1997, which will commence on 1 July 2014.
It is intended that an instrument dealing with the same matters as the two instruments that are being repealed will be made by the Secretary under the Aged Care (Transitional Provisions) Act 1997 and will commence on 1 July 2014.
Human rights implications
The two instruments that are being repealed engage the right to an adequate standard of living contained in article 11 of the International Covenant on Civil and Political Rights and article 28 of the Convention on the Rights of Persons with Disabilities.
The first instrument deals with the determination by the Secretary of a threshold amount that distinguishes between care recipients who are eligible for the supported resident supplement towards the cost of their care and care recipients who are ineligible for the supplement. The second instrument deals with the determination by the Secretary that a residential care service is eligible for the viability supplement, which is an additional amount payable to the approved provider for providing care to care recipients at an eligible service. Additional amounts payable in the form of supplements assist an approved provider to provide an adequate standard of residential care to care recipients.
Although the Repeal Instrument repeals two instruments that engage relevant rights and freedoms, it does so as part of a package of reforms that includes the making of a new instrument dealing with the same matters under a different Act.
Conclusion
The Instrument does not adversely affect any of the rights and freedoms recognised and declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Although the Instrument repeals two instruments that engage relevant rights and freedoms, it does so as part of a package of reforms that includes the making of a new instrument dealing with the same matters under a different Act.
Finn Pratt PSM
Secretary of the Department of Social Services