EXPLANATORY STATEMENT
Australian Hearing Services Act 1991
Australian Hearing Services (Declared Hearing Services) Amendment Determination 2026
Purpose and operation
The Australian Hearing Services (Declared Hearing Services) Determination 2026 (the Determination) defines declared hearing services, specified persons and designated persons for the purposes of the Australian Hearing Services Act 1991 (the Act).
The Determination is a legislative instrument for the purpose of the Legislation Act 2003. Section 8 of the Act sets out the functions of the Authority known as Hearing Australia. Under subsection 8(1), the Authority has the function of providing declared hearing services to: young Australians (paragraph (aa)); referred Comcare clients (paragraph (ab)); referred Commonwealth employees (paragraph (ac)); and designated persons (paragraph (ad)). The Determination sets out the hearing services that are declared hearing services for the purposes of those paragraphs, under subsections 8(4), (5), (6) and (8) of the Act. The Determination also specifies persons who are a designated person for the purposes of paragraph 8(1)(ad), under subsection 8(7) of the Act. A designated person is considered eligible for services under the Community Service Obligations (CSO) component of the Australian Government Hearing Services Program.
The Australian Hearing Services (Declared Hearing Services) Amendment Determination 2026 (the Amendment Determination) removes reference to bone conduction speech processor units from two items listed under declared hearing services. The inclusion of reference to these device types in the Determination was intended to provide clarity but instead caused unintended consequences not consistent with policy intent.
The Amendment Determination also further refines eligibility of designated persons. The effect of this amendment is that the Authority can only use one funding source (the Voucher scheme or Community Service Obligations (CSO) component of the Hearing Services Program) to support an eligible person. It does not disadvantage or have any material effect on the support available to eligible persons.
Background
The Act establishes the legislative framework for providing hearing services and devices to eligible Australians, including the creation and governance of the Authority known as Australian Hearing Services (trading as Hearing Australia).
Authority
Subsections 8(4), (5), (6), (7) or (8) of the Act provide that the Minister may make certain determinations. These determinations include that the Minister may, by writing, determine that a specified service is a declared hearing service and that a specified person is a designated person. The Determination is a legislative instrument (subsection 8(9) of the Act).
Reliance on subsection 33(3) of the Acts Interpretation Act 1901
Subsection 33(3) of the Acts Interpretation Act 1901 provides that 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.
Commencement
Sections 1 to 4 of the Amendment Determination and Items 1 and 2 of Schedule 1 to the Amendment Determination commence on 1 November 2025.
Section 12 of the Legislation Act 2003 relevantly provides that if a legislative instrument commences before it is registered, it does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) to the extent that as a result of that commencement:
- the person’s rights as at the time the instrument is registered would be affected so as to disadvantage the person; or
- liabilities would be imposed on the person in respect of anything done or omitted to be done before the instrument is registered.
The Department is not aware of any person, other than the Commonwealth, who would be disadvantaged by the retrospective commencement.
This retrospective commencement is to ensure no person would be disadvantaged by the change made to the Determination which came into effect on 1 November 2025. The amendments with retrospective commencement remove a barrier to accessing hearing services.
Items 3, 4 and 5 of Schedule 1 to this Amendment Determination commence on 1 July 2026.
Consultation
The Department of Health, Disability and Ageing has consulted with Australian Hearing Services (‘the Authority’ trading as Hearing Australia) during the drafting of the Amendment Determination.
General
This instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Details of this instrument are set out in Attachment A.
This instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.
ATTACHMENT A
Details of the Australian Hearing Services (Declared Hearing Services) Amendment Determination 2026
Section 1 – Name
Section 1 provides that the name of the instrument is the Australian Hearing Services (Declared Hearing Services) Amendment Determination 2026 (the Determination)
Section 2 – Commencement
Section 2 provides that sections 1 to 4 of the Amendment Determination and Items 1 and 2 of Schedule 1 to the Amendment Determination commence on 1 November 2025.
Items 3, 4 and 5 of Schedule 1 to the Amendment Determination commence on 1 July 2026.
Section 3 – Authority
Section 3 provides that the Determination is made under section 8 of the Australian Hearing Services Act 1991 (the Act). Specifically, the Minister can make determinations under subsections 8(4), 8(5), 8(6), 8(7) and 8(8) of the Act.
Section 4 – Schedules
Section 5 provides that each instrument that is specified in a Schedule to the Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule has effect according to its terms.
Schedule 1 – Amendments
Item 1 removes references to bone conduction implants or bone conduction speech processor units from item 2 of section 6 of the Determination, meaning provision of these devices are no longer excluded as a declared hearing service for the relevant classes of specified persons. This reverts to how the item appeared in the repealed Australian Hearing Services (Declared Hearing Services) Determination 2019.
Item 2 removes references to bone conduction implants or bone conduction speech processor units from item 9 of section 6 of the Determination, meaning replacement of these devices are no longer excluded as a declared hearing service for the relevant classes of specified persons. This reverts to how the item appeared in the repealed Australian Hearing Services (Declared Hearing Services) Determination 2019.
Items 3, 4 and 5 specify that eligible persons already receiving services from the Authority under the Voucher system (known as the Voucher scheme component of the Hearing Services Program) are not eligible to receive declared hearing services. The effect of this amendment is that the Authority can only receive funding through one source of Hearing Services Program funding to support the same individual. It does not disadvantage or have any material effect on the support available to eligible persons.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Hearing Services (Declared Hearing Services) Amendment Determination 2026
This Disallowable 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 2011.
Overview of the Disallowable Legislative Instrument
The Australian Hearing Services (Declared Hearing Services) Determination 2025 (the Determination) defines the specified persons who are eligible to receive declared hearing services.
It sets out the entitlement to subsidised hearing support for eligible people – including young Australians under 26 years of age, Aboriginal and Torres Strait Islanders over 50 years of age or that participate in the Remote Australia Employment Service (RAES), and people with specialist hearing needs or that live in remote areas.
Human rights implications
This legislative instrument amends the Determination and engages the following rights:
- the right to the enjoyment of the highest attainable standard of physical and mental health; and
- the right of persons with disabilities to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.
Right to the enjoyment of the highest attainable standard of physical and mental health
The overarching purpose of the Determination is to improve the accessibility of hearing services for vulnerable Australians. This instrument promotes the right in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to the enjoyment of the highest attainable standard of physical and mental health, as it facilitates the provision of Government-subsidised hearing services to eligible persons who require them.
The only substantive change to take effect through this instrument is to specify that the Authority can only receive funding to support an eligible person through one source of funding (either the Voucher scheme or the Community Service Obligations (CSO) component of the Hearing Services Program). It does not make a material difference to people eligible for the program, or services available to them.
The removal of references to bone conduction implants or bone conduction speech processor units reverts to the definition of the relevant declared hearing service as defined in the repealed Australian Hearing Services (Declared Hearing Services) Determination 2019. This amendment removes a potential disadvantage to relevant persons under the Determination owing to an unintended consequence of a previous revision to the definition of the relevant declared hearing service.
Rights of persons with disabilities
The instrument promotes the right in Article 25 of the Convention on the Rights of Persons with Disabilities for persons with disabilities to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability, as it facilitates the provision of Government-subsidised hearing services to persons living with hearing impairment. The effect of the Determination on this right is the same as its effect on the right to health in Article 12 of the ICESCR (as outlined above).
Conclusion
This Disallowable Legislative Instrument is compatible with human rights because it promotes the protection of human rights.
Mark Butler
Minister for Health, Disability and Ageing