Allocation Amendment (People with Special Needs) Principles 2012

Administered by Department of Health, Disability and Ageing

Legislation au F2012L01469 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Ageing

 

Aged Care Act 1997

 

Allocation Amendment (People with Special Needs) Principles 2012

 

The Aged Care Act 1997 (the Act) provides for the 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. 

 

Section 96-1 of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act.  One set of Principles made under the Act is the Allocation Principles 1997 (the Allocation Principles).

 

The purpose of the Allocation Amendment (People with Special Needs) Principles 2012 (the Amending Principles) is to specify a further class of people, namely people who are Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) as people with special needs within the Allocation Principles.  The Amending Principles is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Allocation Amendment (People with Special Needs) Principles 2012

 

An approved provider can only receive subsidy under Chapter 3 of the Act for providing aged care in respect of which a place has been allocated.  The Commonwealth plans the distribution between regions of the available places in respect of types of subsidies.  In doing so, it takes account of ‘people with special needs’.

 

Section 11-3 of the Act defines ‘people with special needs’ as follows:

(a) people from Aboriginal and Torres Strait Islander communities;

(b) people from non-English speaking backgrounds;

(c) people who live in rural or remote areas;

(d) people who are financially or socially disadvantaged; and

(e) people of a kind (if any) specified in Allocation Principles.

 

Currently the Allocation Principles specify veterans, people who are homeless or at risk of becoming homeless and care-leavers as groups of people who have special needs for the purposes of the Act.

 

These Amending Principles specify a further class of people, namely people who are Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI). 

 

All approved providers have a responsibility not to act in a way that is inconsistent with the rights of care recipient that are specified in the User Rights Principles 1997.  These rights include the right to be treated with dignity and respect and without discrimination.  An approved provider must act in a way that is consistent with such rights when dealing with a person to whom the approved provider provides, or is to provide, care whether or not the approved provider has an allocation of places in respect of which care must be provided to people with special needs.

 

Consultation

As part of the living longer living better aged care reform package extensive consultation was undertaken with relevant Commonwealth Departments, the aged care industry, consumer groups, unions, older Australians their families and carers, and the broader community.

 

Details of the amendments to the Allocation Principles are listed in the Attachment.

 

These Amending Principles commence on 1 July 2012.

 

This instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
                                                                                                                         ATTACHMENT

 

NOTES ON CLAUSES

 

 

Clause 1 – Name of Principles

Clause 1 states that the name of the Amending Principles is the Allocation Amendment (People with Special Needs) Principles 2012.

 

Clause 2 - Commencement

Clause 2 states that the Principles commence on 1 July 2012.

 

Clause 3 – Amendment of Allocation Principles

Clause 3 states that Schedule 1 amends Allocation Principles 1997 (Allocation Principles).

 

Schedule 1 Amendments

 

Item 1

This item inserts a new definition of intersex people into section 4.3 of the Allocation Principles. The term is used in the definition of LGBTI and makes it clear that intersex people are neither wholly male nor wholly female because of physical, hormonal or genetic features. Further, it does not matter whether the person identifies as male, female or neither.

 

Item 2
This item inserts a new definition of LGBTI in section 4.3 of the Allocation Principles.  The definition is inclusive and recognizes the diversity of sexuality and gender identity-based cultures.

 

Item 3

This item inserts a new definition of transgender into section 4.3 of the Allocation Principles.  This term is used in the definition of LGBTI and refers to people who identify, affirm or live as a gender other than the gender assigned in infancy.

 

Item 4

This item inserts a new section (section 4.4E LGBTI) in the Allocation Principles.  The effect of the amendment is to include people who are LGBTI within the definition of “people with special needs” in section 11-3 of the Aged Care Act 1997 (the Act).  Other people defined as “people with special needs” for the purposes of the Act are:

  • people from Aboriginal and Torres Strait Islander communities;
  • people from non-English speaking backgrounds;
  • people who live in rural or remote areas;
  • people who are financially or socially disadvantaged;
  • veterans;
  • people who are homeless or at risk of becoming homeless; and
  • people who are care-leavers.

 


Statement of Compatibility with Human Rights

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

Allocation Amendment (People with Special Needs) Principles 2012

 

This Legislative Instrument 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 201.

Overview of the Legislative Instrument

The Aged Care Act 1997 (the Act) provides for the 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. 

An approved provider can only receive subsidy under Chapter 3 of the Act for providing aged care in respect of which a place has been allocated.  The Commonwealth plans the distribution between regions of the available places in respect of types of subsidies.  It then invites applications and allocates the places to approved providers.  In doing so, it takes account of ‘people with special needs’.

Section 11-3 of the Act defines ‘people with special needs’ as follows:

(a) people from Aboriginal and Torres Strait Islander communities;

(b) people from non-English speaking backgrounds;

(c) people who live in rural or remote areas;

(d) people who are financially or socially disadvantaged; and

(e) people of a kind (if any) specified in Allocation Principles 1997 (the Allocation Principles).

 

Currently Part 2A of the Allocation Principles specifies veterans, people who are homeless or at risk of becoming homeless and care-leavers as groups of people who have special needs for the purposes of the Act.  The Allocation Amendment (People with Special Needs) Principles 2012 (the Amending Principles) specify a further class of people, namely people who are LGBTI.  LGBTI is defined as ‘lesbians, gay men, bisexual, transgender and intersex people (including people who are perceived or imputed to be, or have in the past lived as such)’.  The definition is inclusive and recognizes the diversity of sexuality and gender identity-based cultures.

 

Human Rights Implications

This legislative instrument engages Articles 1 and 11 of the International Covenant on Economic, Social and Cultural Rights.  Article 1 guarantees the right to self-determination (and to freely determine their economic, social and cultural development), while Article 11 guarantees the provision of an adequate standard of living including, amongst other things, adequate housing.  This legislative instrument also engages Article 26 of the International Covenant on Civil and Political Rights which provides for effective protection against discrimination on any grounds, including sex.  The provision of subsidies under the Act


assists with the advancement of these human rights by providing that all approved providers of aged care have a responsibility not to act in a way that is inconsistent with the rights of care recipient that are specified in the User Rights Principles.  These rights include the right to be treated with dignity and respect and without discrimination. 

 

Conclusion

This Legislative Instrument is compatible with human rights because it advances the protection of human rights.

 

Mark Butler

Minister for Mental Health and Ageing

 

 

Overview

The Aged Care Act 1997 provides the legislative framework for the funding and delivery of aged care services in Australia, including the allocation of subsidies to approved providers for the care of approved recipients. One of the key provisions of the Act is the ability of the Minister for Ageing to make principles under section 96-1 that specify various matters required or permitted by the Act, including the allocation of places for the provision of aged care services. The Allocation Amendment (People with Special Needs) Principles 2012 were introduced to address a gap in the existing framework by recognising an additional class of people with special needs within the Allocation Principles. This amendment was enacted to better support the diverse needs of the aged care population, particularly those from the LGBTI community. The policy objective of the Amending Principles is to ensure that LGBTI individuals receive equitable access to aged care services, consistent with the broader rights of care recipients to be treated with dignity and respect and without discrimination. The Allocation Amendment (People with Special Needs) Principles 2012 were developed following extensive consultation with various stakeholders, including Commonwealth departments, industry representatives, consumer groups, and the broader community, as part of the living longer living better aged care reform package. The Amending Principles came into effect on 1 July 2012 and amend the existing Allocation Principles 1997 to include LGBTI individuals within the definition of 'people with special needs'. This legislative instrument is compatible with human rights as it advances the protection of rights under the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights by ensuring that all approved providers of aged care services act in a manner consistent with the rights of care recipients, including the right to be treated without discrimination.

Scope and Application

The Allocation Amendment (People with Special Needs) Principles 2012 amends the Allocation Principles 1997 under the Aged Care Act 1997 to expand the definition of 'people with special needs' to include Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) individuals. This legislative instrument applies to approved providers of aged care services who receive subsidy payments under Chapter 3 of the Act, ensuring they consider the needs of LGBTI individuals when providing care. These principles are applicable nationally as they pertain to the Commonwealth's allocation of aged care subsidies across regions, thereby extending their reach to all approved providers operating within Australia. The Amending Principles specify that LGBTI individuals are to be recognised as people with special needs, alongside other groups such as veterans, people from non-English speaking backgrounds, and those from rural or remote areas. The legislation ensures that all approved providers must act in accordance with the User Rights Principles 1997, which include the right to be treated with dignity and respect without discrimination. The Amending Principles are a legislative instrument under the Legislative Instruments Act 2003 and commenced on 1 July 2012.

Key Provisions

The main sections of the Allocation Amendment (People with Special Needs) Principles 2012 (the Amending Principles) provide for the inclusion of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people within the definition of 'people with special needs' under the Aged Care Act 1997. This legislative instrument is designed to ensure that the distribution of aged care subsidies by the Commonwealth takes into account the specific needs of LGBTI individuals. Section 4.4E of the Allocation Principles explicitly includes LGBTI people in the definition of 'people with special needs', which is already inclusive of Aboriginal and Torres Strait Islander people, those from non-English speaking backgrounds, people in rural or remote areas, those who are financially or socially disadvantaged, veterans, homeless or at-risk-of-homelessness individuals, and care-leavers. The Amending Principles also define key terms such as 'intersex' and 'LGBTI' to clarify the scope of this inclusion and to ensure that all approved providers of aged care services adhere to the rights of care recipients as outlined in the User Rights Principles 1997. The obligations imposed by the Amending Principles primarily revolve around ensuring that approved providers of aged care services do not act in ways that are inconsistent with the rights of care recipients, which include the right to be treated with dignity and respect and without discrimination. These obligations necessitate that all approved providers, whether they have an allocation of places for care or not, must act in a manner that respects and upholds the rights of LGBTI individuals. This includes providing care that is sensitive to the specific needs and circumstances of LGBTI people, ensuring that care is non-discriminatory and respects their identity and background. The Amending Principles also outline potential consequences for breaches of these obligations. Although specific penalties are not detailed within the Amending Principles, the Aged Care Act 1997 provides a framework within which penalties can be applied. Breaches of the obligations under the Act could potentially result in civil or criminal consequences, including fines and other penalties as stipulated by the Act. The exact penalties would depend on the nature and severity of the breach, but they serve as a deterrent against non-compliance and ensure that the rights of LGBTI individuals are protected. In summary, the Allocation Amendment (People with Special Needs) Principles 2012 are a significant legislative step towards ensuring that LGBTI individuals receive appropriate and respectful aged care services. By explicitly including LGBTI people within the definition of 'people with special needs', the Amending Principles mandate that all approved providers of aged care must act in a manner that respects and upholds their rights. The obligations and potential consequences for non-compliance are designed to ensure that LGBTI individuals receive the care they need without discrimination, thereby advancing their human rights within the aged care system.

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