Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017

Administered by Department of Health, Disability and Ageing

Legislation au F2017L00743 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Aged Care and

Minister for Indigenous Health

 

Aged Care Act 1997

 

Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017

 

The Aged Care Act 1997 (the 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 and supplement payments in respect of the care they provide to approved care recipients.

 

The Act provides that for each type of aged care, the Minister may determine the amount of subsidy and supplement payable to an approved provider for the provision of that type of aged care.

 

The purpose of the Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017 (the Amending Determination) is to implement a pause in the indexation of the Aged Care Funding Instrument amounts of basic subsidy payable to approved providers of aged care services in respect of a day from 1 July 2017. 

 

The Amending Determination gives effect to the measure announced on 6 December 2016 by the (then) Assistant Minister for Health and Aged Care to pause the indexation of Aged Care Funding Instrument amounts during 2017-18 in order to ensure the sustainability of the existing funding arrangements.

 

The Amending Determination applies only in respect of care recipients who are not continuing care recipients.  Continuing care recipients are those who entered a care service before 1 July 2014 and since that time have not left the service for a continuous period of more than 28 days (other than because the person is on leave), or before moving to another service, have not made a written choice to be subject to the new rules relating to fees and payments that took effect on 1 July 2014. 

 

The same indexation pause is applied to continuing care recipients through the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017.

 

Authority

The authority for making this determination is set out in the following table:

Aged Care Act 1997                                                    Section

Basic subsidy amount

44-3(2)

 

Reliance on subsection 33(3) of the Acts Interpretation Act 1901

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

Consultation

This Amending Determination gives effect to the measure announced by the (then) Assistant Minister for Health and Aged Care on 6 December 2016 on which consultation with key stakeholders took place.

 

 

Commencement

This Amending Determination commences immediately after the commencement of the Aged Care (Subsidy, Fees and Payments) Amendment (July Indexation) Determination 2017.

 

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


ATTACHMENT

 

Details of the Aged Care (Subsidy, Fees and Payments) Determination 2017

 

Section 1 states that the name of the determination is the Aged Care (Subsidy, Fees and Payments) Determination 2017.

 

Section 2 states that the determination commences immediately after the commencement of the Aged Care (Subsidy, Fees and Payments) Amendment (July Indexation) Determination 2017.

 

Section 3 provides that the authority for the making of the determination is section 44-3 of the Aged Care Act 1997.

 

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

 

Schedule 1 – Amendments

 

Aged Care (Subsidy, Fees and Payments) Determination 2014

 

1 Subsection 7(3) (table)

This item provides for the repealing of amounts in relation to Aged Care Funding Instrument amounts by repealing the table to subsection 7(3) and substituting a new table with the new amounts.

 


Statement of Compatibility with Human Rights
 

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

 

Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017
 

The Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017 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) Act 2011.

 

Overview of Legislative Instrument

This legislative instrument amends the Aged Care (Subsidy, Fees and Payments) Determination 2014 to implement a pause in the indexation of Aged Care Funding Instrument amounts during 2017-18 in order to ensure the sustainability of the existing funding arrangements.

 

Human Rights Implications

This legislative instrument is compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health as contained in article 11(1) and article 12(1) of the International Covenant on Economic, Social and Cultural Rights, and article 25 and article 28 of the Convention on the Rights of Persons with Disabilities.

 

This legislative instrument continues the current rate of payment of the amount of basic subsidy payable to approved providers for the provision of care and services to people with a condition of frailty or disability who require assistance to achieve and maintain the highest attainable standard of physical and mental health.

 

Conclusion

This legislative instrument is compatible with human rights as it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health.

 

The Hon Ken Wyatt

Minister for Aged Care and Minister for Indigenous Health

 

Overview

The Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017, enacted by the Australian government, aims to implement a temporary pause in the indexation of Aged Care Funding Instrument (ACFI) amounts during the 2017-18 period. This measure was introduced to ensure the sustainability of existing funding arrangements for aged care services. The determination was made under the authority of the Aged Care Act 1997 and applies to approved providers of aged care services, except for continuing care recipients who are governed by a separate determination. The policy objective is to maintain the current rate of payment of the amount of basic subsidy payable to approved providers for the care and services provided to people with frailty or disability, thus supporting their right to an adequate standard of living and the highest attainable standard of physical and mental health. This aligns with international human rights commitments, ensuring that the aged care funding remains equitable and sustainable.

Scope and Application

The Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017 applies to approved providers of aged care services who are eligible to receive subsidy and supplement payments under the Aged Care Act 1997. It specifically addresses the pause in the indexation of Aged Care Funding Instrument amounts for basic subsidy, targeting care recipients who are not continuing care recipients. Continuing care recipients, who have been in a care service since before 1 July 2014 and have not left for more than 28 days, are covered by a different set of rules in the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017. The determination is enacted under the authority of section 44-3(2) of the Aged Care Act 1997, and it relies on subsection 33(3) of the Acts Interpretation Act 1901 to allow for amendments to existing rules and regulations. The measure was announced on 6 December 2016 by the then Assistant Minister for Health and Aged Care, with consultations held with relevant stakeholders. This legislative instrument is designed to ensure the sustainability of the existing funding arrangements for aged care services across Australia.

Key Provisions

The Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017 (the Amending Determination) is a legislative instrument made under the Aged Care Act 1997 (the Act). It amends the Aged Care (Subsidy, Fees and Payments) Determination 2014 to implement a pause in the indexation of Aged Care Funding Instrument amounts for the year 2017-18 (section 2). The pause aims to ensure the sustainability of the existing funding arrangements for aged care services (section 1). Specifically, the Amending Determination applies to basic subsidy amounts payable to approved providers for the care of non-continuing care recipients, which are defined as those who entered a care service after 1 July 2014 or have made a written choice to be subject to the new rules on fees and payments that took effect on 1 July 2014 (section 1). The authority for making this determination is provided by section 44-3(2) of the Act, and the determination commences immediately after the Aged Care (Subsidy, Fees and Payments) Amendment (July Indexation) Determination 2017 (section 2). The Amending Determination imposes obligations on approved providers of aged care services to continue receiving the same amount of basic subsidy for the year 2017-18, without the indexation increase that would otherwise apply. This means that the amount of subsidy payable to approved providers for the care of non-continuing care recipients will remain the same as it was in the previous year, and will not be adjusted for inflation or other factors. Approved providers must continue to provide aged care services to their approved care recipients in accordance with the terms of their approval under the Act. The Amending Determination also imposes obligations on the Minister for Aged Care to make the determination and to ensure that it is compatible with human rights. Breaching the Amending Determination may result in civil or criminal consequences, depending on the nature and severity of the breach. The Act provides for various offences and penalties for non-compliance with its provisions, including fines and imprisonment. The maximum penalties for offences under the Act vary depending on the offence and the circumstances of the case. The Amending Determination itself does not specify any particular offences or penalties, but rather gives effect to the measure announced by the (then) Assistant Minister for Health and Aged Care on 6 December 2016, which was subject to consultation with key stakeholders. The Amending Determination is also compatible with human rights, as it promotes the human right to an adequate standard of living and the highest attainable standard of physical and mental health (Statement of Compatibility with Human Rights).

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Aged Care Law
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