Legislation (Deferral of Sunsetting—Aged Care Instruments) Amendment Certificate 2025
EXPLANATORY STATEMENT
Issued by the Attorney-General in compliance with
section 15J of the Legislation Act 2003
INTRODUCTION
The Legislation (Deferral of Sunsetting—Aged Care Instruments) Amendment Certificate 2025 (the Amendment Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003 (Legislation Act). It amends the Legislation (Deferral of Sunsetting—Aged Care Instruments) Certificate 2024 (the Principal Certificate). It is a legislative instrument for the purposes of the Legislation Act. The Amendment Certificate will be subject to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the Amendment Certificate is after the first anniversary of the originally scheduled sunsetting day, which means that subsection 51(4) of that Act (which provides an exemption for disallowance for deferrals of 12 months or less) does not apply.
OUTLINE
Sunsetting is the automatic repeal of legislative instruments after a fixed period. The Australian Government’s sunsetting framework is established under Part 4 of Chapter 3 of the Legislation Act. The purpose of the sunsetting framework is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.
Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.
Under paragraph 51(1)(c) of the Legislation Act the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day. This allows instruments to continue to be in force for a further but limited period of time after the date on which they would otherwise sunset. This removes the administrative burden of remaking instruments which would have a limited duration prior to their repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.
Through the operation of subsection 33(3) of the Acts Interpretation Act 1901, the Attorney‑General’s power under paragraph 51(1)(c) includes the power to repeal, rescind, revoke, amend or vary such a certificate.
The Amendment Certificate amends the Principal Certificate, extending the previously granted deferral of sunsetting for the following instruments (together, the Aged Care Instruments) by an additional 12 months, resulting in a deferral of 24 months in total:
- Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014
- Aged Care (Transitional Provisions) Principles 2014
- Aged Care (Transitional Provisions) (Residential Care Subsidy) Determination 2014
- Subsidy Principles 2014
- Quality of Care Principles 2014
- Approval of Care Recipients Principles 2014
- Fees and Payments Principles 2014 (No. 2)
- Records Principles 2014
- User Rights Principles 2014
- Allocation Principles 2014
- Accountability Principles 2014
- Extra Service Principles 2014
- Grant Principles 2014
- Information Principles 2014
- Aged Care (Subsidy, Fees and Payments) Determination 2014
- Classification Principles 2014.
The Aged Care Instruments, for which the original sunsetting date of 1 October 2024 was deferred by 12 months to 1 October 2025, will now sunset on 1 October 2026.
The ability to defer sunsetting dates is an integral part of the sunsetting framework. It provides the necessary flexibility to ensure the standard 10-year sunsetting period does not result in unintended consequences or impose an unreasonable administrative burden on Commonwealth agencies or the Parliament. In this case, the Aged Care Instruments are expected to be remade within 24 months of their original sunsetting date following the repeal of their enabling legislation, the Aged Care Act 1997 and Aged Care (Transitional Provisions) Act 1997 (together, the 1997 Aged Care Acts), and the commencement of the new Aged Care Act 2024 as part of the Australian Government’s aged care reforms. If the Amendment Certificate were to be disallowed, there would not be enough time to make replacement instruments under the Aged Care Act 2024 prior to the current sunsetting day of the Aged Care Instruments.
PROCESS BEFORE CERTIFICATE WAS MADE
Regulatory impact analysis
Certificates of deferral of sunsetting are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Impact Analysis (OIA). The OIA reference for this standing exemption is ID19633.
Consultation before making
Before the Amendment Certificate was issued, the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act.
The Aged Care Instruments detail aspects of the aged care legislative framework under the 1997 Aged Care legislation, such as the requirements for the allocation of aged care places, the approval and classification of care recipients, the responsibilities of approved providers, funding, and the subsidies paid by the Australian Government. The framework also sets out the responsibilities of providers, including in relation to record keeping, user rights, accountability and quality of care expected for recipients of aged care.
The 1997 Aged Care legislation will be repealed on 1 November 2025, upon commencement of the Aged Care Act 2024. The Aged Care Act 2024 responded to recommendations of the Royal Commission into Aged Care Quality and Safety, and was subject to extensive consultation with experts, older Australians and their families, peak bodies, unions representing aged care workers and other stakeholders.
The Aged Care Act 2024 was passed by the Parliament on 25 November 2024. On 4 June 2025, the Australian Government announced it would recommend to the Governor-General, the Hon Sam Mostyn AC, that she proclaim the commencement of the Aged Care Act 2024 on 1 November 2025. This followed consultation with older people, their families and carers, and the wider aged care sector, with feedback supporting a brief deferral of the new legislation’s original commencement date of 1 July 2025, to allow the aged care sector further time to better understand and prepare for the reforms.
The Amendment Certificate will allow sufficient time to bridge the gap between the current sunsetting date of the Aged Care Instruments and the deferred commencement date of the Aged Care Act 2024. The Amendment Certificate will avoid the need to remake the Aged Care Instruments in their current form for the short period of time before they are repealed and replacement instruments are made under the new legislation. As such, given that deferral of the sunsetting date of the Aged Care Instruments is consistent with the policy intent of the sunsetting regime and does not significantly alter existing arrangements, appropriate consultation has occurred for the purposes of section 17 of the Legislation Act.
Statutory preconditions relevant to the Amendment Certificate
If the statutory conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for 6, 12, 18 or 24 months by means of a certificate made under that section. In terms of process, the Legislation Act requires:
- the responsible rule-maker to apply to the Attorney-General in writing, and
- the Attorney-General to be satisfied that:
- the instrument would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 24 months after its sunsetting day
- the proposed replacement instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided
- the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed, or
- the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to that instrument, and
- the Attorney-General to issue a certificate. The explanatory statement for the certificate must include a statement of reasons for the issue of the certificate.
The rule-maker for the Aged Care Instruments, the Minister for Health and Ageing, the Hon Mark Butler MP, provided a written application to the Attorney‑General seeking an amendment of the previous deferral certificate to extend the deferral of sunsetting for the Instruments for a further 12 months, making a total of 24 months. On the basis of the information contained in the statement of reasons below, the Attorney‑General is satisfied that the Aged Care Instruments would, apart from the operation of Part 4 of Chapter 3 of the Legislation Act, be likely to cease to be in force within 24 months after their original sunsetting day. As such, the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.
Statement of Reasons for issuing of the Amendment Certificate
For the purposes of subsection 51(5) of the Legislation Act this section sets out the statement of reasons for issuing the Amendment Certificate.
On 26 August 2024, the then Attorney‑General, the Hon Mark Dreyfus MP, issued the Principal Certificate under section 51 of the Legislation Act, deferring the sunsetting of the Aged Care Instruments from 1 October 2024 to 1 October 2025. The Minister for Health, Disability and Ageing subsequently sought the Attorney‑General’s approval to defer the sunsetting of the Aged Care Instruments by a further 12 months through the issuing of the Amendment Certificate. The new sunsetting date for the Aged Care Instruments is 1 October 2026.
Deferring the sunsetting date will allow replacement instruments to be made under the Aged Care Act 2024 following the commencement of the new Act on 1 November 2025, and avoid the need to remake the Aged Care Instruments in their current form for the short period of time before they are repealed and replacement instruments are made under the new legislation.
The Government’s reforms to the aged care sector have included extensive consultation to respond to recommendations of the Royal Commission into Aged Care Quality and Safety by designing a framework that improves the way services are delivered to older people in their homes, community settings and approved residential care homes. With the commencement of the Aged Care Act 2024 on 1 November 2025, the Aged Care Instruments will be repealed on that date.
Accordingly, the Aged Care Instruments will likely cease to be in force in their current form within 24 months of their original sunsetting date.
More information
Further details on the provisions of the Amendment Certificate are provided in Attachment A.
As the Amendment Certificate is a purely amending instrument, it will be automatically repealed by the operation of section 48A of the Legislation Act at the conclusion of the disallowance period.
The Aged Care Instruments, which will now be repealed on a later day as specified in the Amendment Certificate, are available on the Federal Register of Legislation.
Further information may be requested from the Attorney‑General’s Department about the operation of the Amendment Certificate, and from the Department of Health, Disability and Ageing about the Instruments to which the Amendment Certificate applies.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Legislation (Deferral of Sunsetting—Aged Care Instruments) Amendment Certificate 2025 (the Amendment Certificate) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Human Rights Act).
Overview of the Amendment Certificate
The Amendment Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003. Under that paragraph the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the originally scheduled sunsetting day.
Through the operation of subsection 33(3) of the Acts Interpretation Act 1901, the Attorney‑General’s power under paragraph 51(1)(c) includes the power to repeal, rescind, revoke, amend or vary such a certificate.
The Amendment Certificate amends the Legislation (Deferral of Sunsetting—Aged Care Instruments) Certificate 2024 (the Principal Certificate), which previously granted deferral of sunsetting for the following instruments (together, the Aged Care Instruments) by 12 months from 1 October 2024 to 1 October 2025:
- Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014
- Aged Care (Transitional Provisions) Principles 2014
- Aged Care (Transitional Provisions) (Residential Care Subsidy) Determination 2014
- Subsidy Principles 2014
- Quality of Care Principles 2014
- Approval of Care Recipients Principles 2014
- Fees and Payments Principles 2014 (No. 2)
- Records Principles 2014
- User Rights Principles 2014
- Allocation Principles 2014
- Accountability Principles 2014
- Extra Service Principles 2014
- Grant Principles 2014
- Information Principles 2014
- Aged Care (Subsidy, Fees and Payments) Determination 2014
- Classification Principles 2014.
The effect of the Amendment Certificate is that the Aged Care Instruments, for which the previous sunsetting day was 1 October 2025, will now sunset on 1 October 2026.
The Aged Care Instruments are expected to be repealed and replaced within 24 months of their scheduled sunsetting day as part of the implementation of the Australian Government’s aged care reforms in response to the Royal Commission into Aged Care Quality and Safety, and following extensive stakeholder consultation.
Specifically, the Aged Care Instruments will be repealed on 1 November 2025 upon commencement of the Aged Care Act 2024. The Act was originally planned to commence on 1 July 2025, however this was later deferred to 1 November 2025 to allow greater time to prepare for implementation of the reforms.
The Amendment Certificate allows the Aged Care Instruments to continue to be in force for a further, but limited, period of time when they would otherwise sunset. This removes the administrative burden of remaking the Instruments which would have a limited duration prior to their expected repeal and replacement.
Human Rights Implications
An amending certificate of deferral of sunsetting extends the operation of the instruments but does not change or affect the rights engaged under the original instruments.
The Aged Care Instruments engage certain rights and freedoms declared by the international instruments set out in section 3 of the Human Rights Act.
The instruments are 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 instruments promote these rights by making provision for the allocation of aged care places, the approval and classification of care recipients, the responsibilities of approved providers, and funding and subsidies paid by the Australian Government. The object of these instruments is to ensure access to high quality aged care that is affordable by people who require it and appropriate to their needs. To the extent that a person's eligibility to receive aged care may be limited to receiving a specified level of care, this limitation is necessary, reasonable and proportionate having regard to the resources available to support aged care services and the need to consider equity in accessing those resources.
The instruments similarly promote the right to the enjoyment of the highest attainable standard of physical and mental health by setting out the responsibilities of providers, including in relation to user rights, accountability and quality of care expected for recipients of aged care.
The instruments also engage the right to protection from situations of risk, and the right to protection within their home from all forms of exploitation, violence and abuse (as contained in articles 11 and 16 of the Convention of the Rights of Persons with Disabilities) through the provision of appropriate legislative protections and independent monitoring.
The instruments engage the right to privacy contained in article 17 of the International Covenant on Civil and Political Rights in that they require an approved provider to keep records relating to care recipients' health and the fees they have been charged for their care. Insofar as the instruments limit the right to privacy of those whose personal information is required to be kept by an approved provider, the limitation is a necessary, reasonable and proportionate measure to protect the safety, health and well-being (including the financial well-being) of vulnerable care recipients.
Therefore, overall, the Aged Care Instruments are compatible with human rights because they positively promote and engage some rights. To the extent that the engagement limits human rights, those limitations are reasonable, necessary and proportionate to achieving the objective of ensuring access to high quality aged care by people who require it.
Before issuing the Amendment Certificate, the Attorney-General was satisfied that the Aged Care would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of their original sunsetting date. Issuing a certificate of deferral therefore avoids the need to replace the Instruments in their current form for a short period of time before they are expected to be repealed and replaced.
Any new equivalent instruments made under the Aged Care Act 2024 will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the remade Aged Care Instruments will be assessed at the time they are made, including through the requirement to prepare a Statement of Compatibility with Human Rights.
Conclusion
This Amendment Certificate is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act, because to the extent that it limits human rights, those limitations are reasonable, necessary and proportionate to achieving the objective of ensuring access to high quality aged care by people who require it.
ATTACHMENT A
NOTES ON THE AMENDMENT CERTIFICATE
Section 1 Name
This section provides that the Amendment Certificate is named the Legislation (Deferral of Sunsetting—Aged Care Instruments) Amendment Certificate 2025. The Amendment Certificate may be cited by this name.
Section 2 Commencement
This section provides for the Amendment Certificate to commence on the day after it is registered.
Section 3 Authority
This section provides that the Amendment Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003.
Section 4 Schedules
This section provides that each instrument specified in a Schedule to the Amendment Certificate is amended or repealed as set out in that Schedule, and any other items have effect according to their terms.
Schedule 1 Amendments
This schedule sets out the amendments to the Principal Certificate that are necessary to further defer the sunsetting of the following instruments to 1 October 2026:
- Aged Care (Transitional Provisions) (Subsidy and Other Measures) Determination 2014
- Aged Care (Transitional Provisions) Principles 2014
- Aged Care (Transitional Provisions) (Residential Care Subsidy) Determination 2014
- Subsidy Principles 2014
- Quality of Care Principles 2014
- Approval of Care Recipients Principles 2014
- Fees and Payments Principles 2014 (No. 2)
- Records Principles 2014
- User Rights Principles 2014
- Allocation Principles 2014
- Accountability Principles 2014
- Extra Service Principles 2014
- Grant Principles 2014
- Information Principles 2014
- Aged Care (Subsidy, Fees and Payments) Determination 2014
- Classification Principles 2014
Item 1 Section 4
This item amends section 4 of the Principal Certificate by substituting the sunsetting date of 1 October 2025 with the amended date of 1 October 2026.
Item 2 Section 5
This item changes the self-repealing provision of the Principal Certificate so that it takes effect on 2 October 2026, rather than 2 October 2025.