Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017

Administered by Department of Health, Disability and Ageing

Legislation au F2017L00744 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 (Transitional Provisions) Act 1997

 

Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017

 

The Aged Care (Transitional Provisions) Act 1997 (the TP Act), in conjunction with the Aged Care Act 1997 (the Act) provides for the funding of aged care services in operation before 1 July 2014 that are providing care to continuing care recipients.

 

Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy payments under the TP Act in respect of the care they provide to continuing care recipients.  Continuing care recipients are those who entered an aged 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 new rules relating to fees and payments that came into effect on 1 July 2014.

 

The purpose of the Aged Care (Transitional Provisions) (Subsidy and Other Measures) 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 to continuing care recipients.  The same indexation pause is applied to non-continuing care recipients through the Aged Care (Subsidy, Fees and Payments) Amendment Determination 2017.

 

Authority

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

Aged Care (Transitional Provisions 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 (Transitional Provisions) (Subsidy and Other Measures) 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 (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017

 

Section 1 states that the name of the determination is the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017.

 

Section 2 states that the determination commences immediately after the commencement of the Aged Care (Transitional Provisions) (Subsidy and Other Measures) 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 (Transitional Provisions) 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 (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2014

 

1 Subsection 8(3) (table)

This item provides for the repealing of amounts in relation to Aged Care Funding Instrument amounts by repealing the table to subsection 8(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 (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017
 

The Aged Care (Transitional provisions) (Subsidy and Other Measures) 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 (Transitional Provisions) (Subsidy and Other Measures) Determination 2014 to implement a pause in the indexation of Aged Care Funding Instrument Rates 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 (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017 was enacted to implement a pause in the indexation of Aged Care Funding Instrument amounts of basic subsidy payable to approved providers of aged care services for the year 2017-18. This measure was introduced to ensure the sustainability of the existing funding arrangements for aged care services, particularly for continuing care recipients who entered the service before 1 July 2014. The determination was made under the authority of the Aged Care (Transitional Provisions) Act 1997 and was announced by the (then) Assistant Minister for Health and Aged Care on 6 December 2016, following consultation with key stakeholders. The policy objective of this measure is to maintain the current rate of payment of the basic subsidy, thereby supporting the right to an adequate standard of living and the highest attainable standard of physical and mental health, as recognised in various international human rights instruments.

Scope and Application

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017 applies to approved providers of aged care services who provide care to continuing care recipients, which are defined as individuals who were admitted to an aged care service before 1 July 2014 and have not left the service for more than 28 days since that date, excluding periods of leave or transfers to another service where they have opted to be subject to new fee and payment rules. The determination is a legislative instrument made under the Aged Care (Transitional Provisions) Act 1997, and it serves to implement a pause in the indexation of Aged Care Funding Instrument rates during the 2017-18 period. This pause was introduced to maintain the sustainability of the existing funding arrangements for aged care services. The determination is applicable nationally across Australia, and while it primarily affects approved providers and continuing care recipients, it also impacts the broader aged care sector by influencing the financial support mechanisms available to service providers. There are no explicit exclusions or thresholds mentioned in the text, but the effects of the determination are contingent upon the specific conditions of care and the service providers' eligibility under the Aged Care Act 1997.

Key Provisions

The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017 (section 1) modifies the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014 to implement a pause in the indexation of Aged Care Funding Instrument rates for the year 2017-18 (section 4). This pause aims to ensure the sustainability of existing funding arrangements for aged care services provided to continuing care recipients (section 2). These recipients are individuals who were residing in an aged care service before 1 July 2014 and have remained in the same service without leaving for more than 28 days, except for temporary absences, or have not opted for the new fee rules introduced on 1 July 2014 (section 2). The determination applies to those who are approved to provide aged care services under the Aged Care Act 1997 and are eligible for subsidy payments under the Aged Care (Transitional Provisions) Act 1997 (section 2). The Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017 imposes a requirement on approved providers of aged care services to continue receiving the same rate of basic subsidy for the year 2017-18, as set out in the Aged Care Funding Instrument. This determination ensures that the funding arrangements remain stable to support the provision of care to continuing care recipients, thereby maintaining the quality of care services provided (section 4). The determination also mandates that any adjustments to the subsidy rates will be paused, and no indexation will be applied during the specified period (section 4). Breach of the requirements set out in the Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment Determination 2017 may result in civil or criminal consequences, although specific penalties are not detailed in the explanatory statement. The determination is designed to maintain the integrity of the funding arrangements for aged care services, and any non-compliance may be subject to review under the relevant legislation (section 4). The determination itself is authorised under section 44-3(2) of the Aged Care (Transitional Provisions) Act 1997, and any failure to adhere to its provisions could potentially lead to enforcement actions under the legislation.

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