EXPLANATORY STATEMENT
Issued by the authority of the Assistant Minister for Social Services
Aged Care Act 1997
Aged Care (Subsidy, Fees and Payments) Amendment (Removal of Certification and Other Measures) Determination 2015
The Omnibus Repeal Day (Autumn 2014) Act 2014 amended the Aged Care Act 1997 (the Act) and the Aged Care (Transitional Provisions) Act 1997 (TP Act) to repeal the requirement for residential care services to be certified. The repeal of the certification provisions occurred as part of the Government’s red tape reduction agenda.
Certification requirements under the Act were duplicative, in that a number of these requirements replicated building regulations administered by state, territory and local governments. Aspects of certification under the Act also replicated certain requirements under the Accreditation Standards administered by the Australian Aged Care Quality Agency.
The Aged Care (Subsidy, Fees and Payments) Amendment (Removal of Certification and Other Measures) Determination 2015 (Amending Determination) addresses consequential changes required as a result of the repeal of certification from the Act and the TP Act and clarifies existing calculations made under the Aged Care (Subsidy, Fees and Payments) Determination 2014.
The Amending Determination repeals references to certification in relation to the respite supplement and makes technical corrections to clarify the operation of the accommodation supplement.
The Amending Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
This Amending Determination commences the day after it is registered on the Federal Register of Legislative Instruments.
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
The amendments in Part 1 are consequential amendments that flow from the Omnibus Repeal Day (Autumn 2014) Act 2014. As such no specific consultations were undertaken in regard to the changes in this instrument.
The amendments in Part 2 make technical corrections. As Part 2 is of a machinery nature and does not substantially alter existing arrangements no consultation has occurred (section 18, Legislative Instruments Act 2003).
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required in respect of the repeal of certification requirements (OBPR ID: 16379) or the technical corrections to the amount of accommodation supplement payable (OBPR ID:17541).
Details of the Aged Care (Subsidy, Fees and Payments) Amendment (Removal of Certification and Other Measures) Determination 2015
Clause 1 states that the name of the determination is the Aged Care (Subsidy, Fees and Payments) Amendment (Removal of Certification and Other Measures) Determination 2015.
Clause 2 sets out the commencement date of the Amending Determination.
Clause 3 provides that the authority for the making of the determination is the Aged Care Act 1997.
The authority for making some specific amendments is section 44‑5 and subsection 44‑28(4) of the Aged Care Act 1997.
Clause 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
Part 1 – Amendments relating to removal of certification
Aged Care (Subsidy, Fees and Payments) Determination 2014
Item 1 – Section 16 (definition of certified residential care service)
This item repeals the definition of certified residential care service.
Item 2 – Section 17
This item repeals the section and substitutes a new section 17. The effect of the substituted section means there are no longer different amounts of respite supplement payable based on whether the service was certified or not.
Item 3 – Subsections 18(1) to (3)
This item repeals the subsections and substitutes a new subsection (1). The effect of the substituted subsection means there are no longer different amounts of respite supplement payable based on whether the service was certified or not.
Item 4 – Subsection 18(4)
This item repeals references to paragraphs 2(b) and 3(b) as they have been removed by Item 3 above.
Part 2 – Amendments relating to accommodation supplement
Aged Care (Subsidy, Fees and Payments) Determination 2014
Item 5 – Section 49
This item inserts the definitions for ‘post-reform resident’, ‘relevant resident’, and ‘significantly refurbished residential care service’. These terms are referred to in Items 6 to 9 below.
Item 6 – Subsection 51(1)
This item inserts a requirement for a residential care service to comply with the building requirements specified in Schedule 1 to the Aged Care (Transitional Provisions) Principles 2014 in order to receive the accommodation supplement amount outlined in subsection 51(1).
Item 7 – Paragraph 51(1)(b)
This item substitutes the paragraph as the entire paragraph now simply relies on the definition of a ‘significantly refurbished residential care service’ inserted by item 5 above.
Item 8 – Subsection 51(3)
This item repeals references to paragraph 51(1)(b) which is repealed by Item 7 above.
Item 9 – Subsection 51(4)
This item makes technical corrections to clarify the operation of the accommodation supplement, by repealing the section and substituting a new section.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aged Care (Subsidy, Fees and Payments) Amendment (Removal of Certification and Other Measures) Determination 2015
This Aged Care (Subsidy, Fees and Payments) Amendment (Removal of Certification and Other Measures) Determination 2015 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 (Subsidy, Fees and Payments) Amendment (Removal of Certification and Other Measures) Determination 2015 removes references to certification from the respite supplement, and corrects drafting errors by clarifying how to calculate the amount of accommodation supplement in certain circumstances.
Human Rights Implications
The legislative instrument is compatible with the right to an adequate standard of living contained in article 11 of the International Covenant on Economic, Social and Cultural Rights. Aged care facilities must continue to comply with state and territory building requirements.
The legislative instrument is also 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. The Amending Determination continues to enable the payment of supplements 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.
Senator the Hon Mitch Fifield
Assistant Minister for Social Services