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2022-2023-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AGED CARE BILL 2024
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by the authority of the Minister for Aged Care,
the Hon Anika Wells MP)
AMENDMENTS TO AGED CARE BILL 2024
OUTLINE
These amendments are designed to address key concerns that have been raised by the aged
care sector and older people since the Aged Care Bill 2024 (the Bill) was introduced on
12 September 2024. This includes responding to matters raised through the Senate
Community Affairs Legislation Committee (the Committee) inquiry into the Aged Care Bill
2024, which received 189 submissions and heard evidence from a number of witnesses and
key stakeholders over 9 days of public hearings throughout October 2024.
The purpose of the proposed amendments to the Bill is to:
• amend a number of key definitions and concepts in response to stakeholder feedback
including:
o serious injury or illness,
o aged care worker,
o high quality care,
o responsible person.
• remove ambiguity relating to the responsible person duty;
• make key changes to the enforceability of the Statement of Rights and the
corresponding condition of registration;
• implement the recommendation that a review of accommodation pricing be brought
forward to report to 1 July 2026 and included in the Bill;
• mandate financial hardship as a circumstance for the fee reduction supplement;
• remove decision-making supporters and streamline and strengthen the safeguards in
place for the supported decision-making framework;
• sunset the immunity provision;
• make technical amendments to address errors in the Bill.
Financial Impact Statement
These amendments will not alter the financial impact of this Bill.
Consultation
These amendments respond to matters raised through the Senate Community Affairs
Legislation Committee inquiry into the Aged Care Bill 2024 [Provisions], the Parliamentary
Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of
Bills.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
AMENDMENTS TO THE AGED CARE BILL 2024
This Bill 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 Bill
These amendments are designed to address key concerns that have been raised by the aged
care sector and older people since the Aged Care Bill 2024 (the Bill) was introduced on
12 September 2024. This includes responding to matters raised through the Senate
Community Affairs Legislation Committee (the Committee) inquiry into the Aged Care Bill
2024, which received 189 submissions and heard evidence from a number of witnesses and
key stakeholders over 9 days of public hearings throughout October 2024.
The purpose of the proposed amendments to the Bill is to:
• amend a number of key definitions and concepts in response to stakeholder feedback
including:
o serious injury or illness,
o aged care worker,
o high quality care,
o responsible person.
• remove ambiguity relating to the responsible person duty;
• make key changes to the enforceability of the Statement of Rights and the
corresponding condition of registration;
• implement the recommendation that a review of accommodation pricing be brought
forward to report to 1 July 2026 and included in the Bill;
• mandate financial hardship as a circumstance for the fee reduction supplement;
• remove decision-making supporters and streamline and strengthen the safeguards in
place for the supported decision-making framework;
• sunset the immunity provision;
• make technical amendments to address errors in the Bill.
Amendment implications
The amendments to the Bill engage the following human rights:
• the right to protection from exploitation, violence and abuse in article 16(1) of the
Convention on the Rights of Persons with Disabilities (CRPD);
• the right to health in article 12 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and article 25 of the CRPD;
• the right to equal recognition before the law in article 12(2) of the CRPD;
• the right to an adequate standard of living in article 11(1) of the ICESCR and article 28(1)
of the CRPD.
Right to protection from exploitation, violence and abuse
The right to protection from exploitation, violence and abuse is contained in article 16 of the
CRPD.
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Various amendments have been made to the Bill to respond to stakeholder feedback
regarding the enforceability of the Statement of Rights which promote the right to protection
from exploitation, violence and abuse. This includes a new legislative note under subclause
24(3) to clarify provider obligations under clause 144. Consequently, subclause 144(1)(b) has
also been amended to strengthen the language around what is required from registered
providers, to provide that providers of a kind prescribed by the rules must 'have in place
practices to act compatibility with the Statement of Rights, in accordance with subsection
24(2) (compatibility with the Statement of Rights). Similar amendments have been made to
clause 62 to ensure the assessment process is linked to the Statement of Rights. The
legislative note under clause 24(3) also explicitly states that a person can make a complaint to
the Complaints Commissioner about a registered provider acting in a way that is
incompatible with the Statement of Rights (as provided for in clause 358).
These amendments engage article 16 of the CRPD by implementing measures to protect
individuals accessing funded aged care services who may have impediments to their full and
effective participation in society. This reflects that the Government has no tolerance for abuse
and neglect in aged care.
Right to health
Amendments to clause 20 promote the right to health under Article 12(1) of the ICESCR and
Article 25 of the CRPD. These articles refer to the right of individuals to the highest
attainable standard of physical and mental health.
Amendments have been made to the definition of high quality care to include reference to
supporting the improvement of the individual's wellbeing, independence, autonomy, and
physical and cognitive capacity through reablement approaches. Including these concepts in
the definition of high quality care highlights the importance of prioritising an individual's
independence, autonomy and freedom of choice in the provision of high quality care.
Additional amendments to clause 20 seek to promote access to bilingual aged care workers
and interpreters for individuals, as well as to accurately reflect the need for a sufficient
number of workers as conditions of high quality care.
The amendments address stakeholder feedback and engage this right by actively promoting
and protecting the individual's physical and mental health, as well as their lifestyle, wellbeing
and cultural needs.
Right to equal recognition before the law
These amendments further promote the rights engaged by the Bill, particularly the right to
equal recognition before the law by clarifying that the immunity at clause 163 (related to
restrictive practices) will cease to have effect on 1 December 2026.
This amendment reaffirms individuals right to enjoy capacity on an equal basis with others,
with appropriate measures being taken to provide access and support in exercising their legal
capacity, including appropriate safeguards. This will provide additional protection to
individuals receiving funded aged care services and ensure that the scope of this immunity is
strictly limited to use that aligns with the consent that has been provided. The amendment
removes the risk of a registered provider, or relevant individual, relying on consent by a
person who is authorised to give that consent under the Commonwealth's aged care laws, but
who may not have the requisite authority under the relevant State or Territory laws.
3
The combination of the existing requirements and the amendment to clause 163 will ensure
that restrictive practices are only used as a necessary and proportionate response in certain
circumstances.
The amendments also promote this right by ensuring that people with disability can exercise
legal capacity in all aspects of their life and receive appropriate support to do this if required
in the context of aged care.
Amendments have been made to remove 'decision-making supporters' from the Bill to
address stakeholder concerns that the decision-making supporter role duplicates state and
territory substitute decision-making appointments, without procedural safeguards that are
commensurate to those of state and territory arrangements. It is the intention that the removal
of decision-making supporters will ensure that the will and preferences of older people are
paramount in decision making.
Other minor amendments have been made, including clarifying the operation of means
testing in relation to the framework, strengthening reference to will and preference in the
Statement of Principles and streamlining administrative processes i.e. allowing supporters to
make verbal or written requests to the System Governor.
Right to an adequate standard of living
Article 28(1) of the CRPD requires countries to take appropriate measures to ensure an
adequate standard of living and social protection for persons with disabilities, including clean
water services, access for older persons with disabilities to social protection programs,
appropriate and affordable services, devices and other assistance and public housing
programs.
Amendments have been made to various provisions (clause 197, clause 214, clause 223,
clause 231) to prescribe that one of the circumstances prescribed in the rules for the fee
reduction supplement, must be due to financial hardship. These amendments promote the
right of those accessing funded aged care services to an adequate standard of living by
providing for the subsidised provision of funded aged care services based on need.
Conclusion
The amendments to the Bill are consistent with human rights as they promote the protection
of human rights, in particular the rights of individuals accessing funded aged care services to
protection from exploitation, violence and abuse, and health, equal recognition before the law
and an adequate standard of living. .
[Circulated by the authority of the Minister for Aged Care, the Hon Anika Wells MP]
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AMENDMENTS TO THE AGED CARE BILL 2024
NOTES ON AMENDMENTS
Abbreviations and Acronyms used in this supplementary explanatory memorandum
• The Committee means the Senate Community Affairs Legislation Committee
• Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act
2014.
• NDIS Act means the National Disability Insurance Scheme Act 2013.
Chapter 1 - Introduction
Amendment (1)
Amendment (1) omits the definition of decision-making supporter from clause 7. This
amendment is consequential to amendment (16) which removes decision-making supporters
from the Bill.
Amendment (2)
Amendment (2) amends the definition of serious injury or illness in clause 7 to add a new
paragraph (ix) at the end of paragraph (a) which includes 'a serious wound or pressure
injury'.
This addresses stakeholder concerns and ensures that where an individual requires immediate
treatment for serious wounds and pressure sores, that these are serious injuries or illness for
the purposes of the Bill.
Amendment (3)
Amendment (3) is a technical correction which amends clause 11 to omit subclause 11(2) and
substitute the meaning registered provider. Under new subclause 11(2) a registered provider
means an entity that:
• is registered under paragraph 105(1)(a) or has renewed its registration under
paragraph 108(1)(a), or is in a class of entities that the System Governor has deemed
to be registered under subclause 117(1); and
• the registration period for that registration has not ended; and
• that registration has not been revoked under a provision of part 3 of Chapter 3.
It is noted that a registered provider's registration is not in effect while suspended under
clause 130. This means most provisions of this Act still apply to the registered provider
unless the provisions expressly require that the registered provider's registration is in effect
for the provision to apply.
Amendments (4) and (5)
Amendments (4) and (5) amend subclauses 11(4) and 11(5), which provide for the definition
of aged care worker. Amendment (4) inserts "to deliver funded aged care services after
"provider" at the end of paragraph 11(4)(a). Amendment (5) omits "Despite subsection (4),
an" at the beginning of subclause 11(5), and substitutes it with "An".
These amendments address stakeholder concerns by providing further clarification that the
definition of aged care worker only relates to individuals employed or otherwise engaged
(including as a volunteer) by a registered provider (or an associated provider) to deliver
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funded aged care services. This ensures that the definition of aged care worker is not
interpreted to include a worker who is employed or otherwise engaged (including as a
volunteer) by a registered provider (or associated provider) but who does not in their
employment deliver funded aged care services.
These amendments also remove duplication with the definition of responsible person
(clause 12).
Amendments (6), (7), (8) and (9)
Clause 12 provides a definition of which persons are considered the responsible persons of a
registered provider. This definition is used throughout the Bill, such as allowing the
suitability of responsible persons to be assessed as part of a registered provider's suitability to
be registered to deliver funded aged care services, or the application of the statutory duty on
certain responsible persons.
Amendments (6) and (7) amend the definition of responsible person in clause 12 by inserting
into 12(1)(a) and 12(1)(b), "if the registered provider is not a government entity --" before
"any". These amendments address concerns raised by stakeholders that there may be
difficulty in applying paragraphs 12(1)(a) and 12(1)(b) to government providers due to their
different structures and governance arrangements, and the ability to identify with precision
which individuals would meet the definition of responsible person under paragraphs 12(1)(a)
and 12(1)(b). These amendments remove any possible ambiguity which may have arisen
across provisions in the Bill regarding application of certain provisions to responsible persons
of a government provider.
Amendment (8) amends paragraph 12(1)(c) and inserts "for any registered provider
(including a government entity) --" before "if" to make clear that this paragraph includes
government entities.
Further, amendment (9) amends subparagraph 12(1)(c)(ii) to limit the scope of the definition
of responsible person in relation for any persons who are responsible for the day-to-day
operations of a registered provider, by inserting "of an approved residential care home or
service delivery branch" after "operations". This clarifies that subparagraph 12(1)(c)(ii) is
intended to cover any persons who are responsible for the day-to-day operations of an
approved residential care home or service delivery branch, rather than of the registered
provider more generally. This also helps to remove ambiguity across a number of provisions
and ensures that government entities will still have at least one responsible person.
Amendments (10), (11) and (12)
Amendments (10), (11) and (12) amend the key concept of high quality care in clause 20,
which provides a principles-based definition of high quality care that focuses on the
characteristics of aged care, rather than specific outcomes.
Amendment (10) omits subparagraph 20(c)(v) and substitutes a new subparagraph 20(c)(v)
which highlights that high quality care also prioritises supporting the improvement of an
individual's wellbeing, independence, autonomy, as well as their physical and cognitive
capacity through reablement approaches, where the individual chooses to, including by
keeping the individual mobile and engaged if they are living in an approved residential care
home. This further highlights the importance of an individual's independence, autonomy and
freedom of choice in the key concept of high quality care.
6
Amendment (11) omits the word "requested" from subparagraph 20(c)(x) and substitutes
"required" which clarifies that in delivering high quality care, bilingual aged care workers
and interpreters should be made available to an individual, if required by the individual.
Amendment (12) inserts, at the end of paragraph 20(c), a new subparagraph 20(c)(xiii) which
provides that high quality care is considered to be care that also prioritises the delivery of
high quality nursing services by sufficient numbers of qualified and experienced direct care
staff members.
Amendment (13)
Amendment (13) amends clause 24 by adding a Note at the end of subclause 24(3) to provide
further clarity to the effect of the Statement of Rights. This amendment addresses concerns
raised by stakeholders during the Committee hearings on the Bill regarding the enforceability
of the Statement of Rights and the interaction with the role of the new Complaints
Commissioner.
The Note below subclause 24(3) makes clear that even though nothing in Part 3 Division 1 of
Chapter 1 creates rights or duties that are enforceable by proceedings in a court of tribunal, it
is a condition of registration for certain registered providers that a registered provider must
demonstrate understanding of the Statement of Rights and have in place practices to ensure
that the provider acts compatibly with the Statement of Rights (see clause 144(1)). The Note
also further clarifies that a person can make a complaint to the Complaints Commissioner
about a registered provider acting in a way that is incompatible with the Statement of Rights
(as provided for in clause 358).
Amendments (14) and (15)
These amendments amend clause 25, which sets out the Statement of Principles. The
Statement of Principles is intended to be used to help guide the decisions, actions and
behaviours of those operating in the aged care system - including registered providers, aged
care workers and government agencies.
Amendment (14) amends paragraph 25(3)(c) of the Statement of Principles to insert "or be
supported (if necessary) to make, or communicate, decisions," after "decision-making".
Amendment (15) further amends paragraph 25(3)(c) to insert "to ensure the individual's will
and preferences are respected", after "accesses".
This amendment ensures that supported decision-making is a guiding principle for the
decisions, actions and behaviours of those operating in the aged care system.
Amendment (16)
Amendment (16) omits clause 27 and substitutes new clause 27. The effect of this
amendment is to remove the decision-making supporter from the Bill. During the inquiry into
the Bill, the Committee received varied feedback about the supporter provisions, with
concerns being raised about the operation of the decision-making supporter with state and
territory arrangements for substitute decision-making, as well as the remit and lack of
procedural safeguards for appointing decision-making supporters. Removing decision-
making supporters from the Bill ensures that the Bill establishes supported decision-making
only, and that authority to make decisions on behalf of the individual is a matter for
State/Territory appointments.
7
Clause 27 - Actions of Supporters
The supported decision-making framework establishes a role for the System Governor to
register supporters for the purposes of aged care.
Clause 27 provides for the actions that supporters may undertake on behalf of an individual.
These actions include to request, access or receive information or documents, and
communicate information on behalf of an individual, including their will, preferences and
decisions.
Supporters are not able to make decisions on behalf of the individual, the actions listed in
clause 27 must only be undertaken with the consent of the individual. This provision is
designed with the overarching presumption that the individual has the legal capacity to
consent to the actions. The provision has been drafted in a way to ensure it optimises an
individual's decision-making experience in the aged care context. This clause is intended to
operate in a way that encourages the flexibility and responsiveness that may be needed for a
person to support an individual as their support needs change over time.
Note 1 to clause 27 confirms that if there is more than one supporter of an individual, the
supporters may do a thing jointly and severally.
Note 2 to clause 27 clarifies that provisions about how a supporter may be registered are at
Division 3 of this Part.
Amendment (17)
Amendment (17) amends clause 28, which sets out the role of guardians and persons in
similar positions in the supporter framework under the Bill, to omit subclause 28(1) and
substitute it with new subclause 28(1). The amendment removes the reference to the decision-
making supporter in this subclause.
New subclause 28(1) clarifies that a person must not do anything that may or must be done
on behalf of an individual under, or for the purposes of, this Act unless the person is a person
covered by subclause 28(2) who is, by reason of being such a person, authorised to do the
thing on behalf of the individual.
Amendments (18) and (19)
Amendments (18) and (19) amend clause 29 which sets out the arrangements for sharing
information with a supporter at the same time and in the same form as that which is shared
with the individual themselves.
Amendment (18) amends subclause 29(1) to omit paragraph 29(1)(b) and substitutes it with
new paragraph 29(1)(b), which provides that regardless of whether the individual has
consented to the provision of information, information is to be given to a supporter of the
individual if the supporter is a person covered by subclause 28(2). This amendment removes
the reference to the decision-making supporter.
Amendment (19) further amends clause 29 by omitting subclause 29(2). This responds to
concerns raised that the operation of subsection 29(2) has potential to have perverse
unintended consequences for older people and their supporters. This includes unnecessary
duplication and impeding sensible communication accommodations and accessibility for
individuals and supporters. For example, the subsection would require letters written in a
particular language or medium (i.e. braille) be provided to supporters who do not read that
language or medium.
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Amendments (20), (21) and (22)
Amendments (20), (21) and (22) make amendments to clause 30, which is intended to
provide a clear set of duties that a supporter must adhere to when undertaking activities, as
prescribed in clause 27, on behalf of an older person. Clause 30 is a key measure for the
System Governor in deciding whether a person can be registered as a supporter. These
amendments are consequential to the removal of the decision-making supporter from the Bill,
and remove duties that applied to decision-making supporters only.
Amendment (20) omits paragraph 30(1)(d) from subclause 30(1), because this paragraph
imposed duties on decision-making supporters.
Amendment (21) omits the heading "Supporters" because it is no longer necessary to
differentiate between duties relevant to supporters generally, and decision-making supporters.
Amendment (22) omits the provisions relating to the duties of decision-making supporters
from the Bill (subclauses 30(3) to 30(5)).
Amendment (23), (24) and (25)
Amendments (23), (24) and (25) amend the registration of supporters.
Amendment (23) amends clause 37 by omitting subclause 37(2) and substituting it with "the
registration may be made on the request of a person (including the individual) or body." This
removes the reference to decision-making supporters from clause 37.
Amendment (24) amends clause 37 by omitting paragraph 37(2)(b) (including the note).
Amendment (25) amends clause 37 by omitting subparagraph 37(6)(b)(iii) because with the
removal of the decision-making supporter, the System Governor will no longer have the
ability to register supporters on their own initiative.
Amendment (26)
Amendment (26) amends clause 39 to omit subclause 39(1) (including the note) and
substituting it with "If the System Governor registers a person under subsection 37(1) to be a
supporter of an individual in the circumstance set out in subparagraph 37(6)(b)(i), the System
Governor must give written notice of the registration to the supporter and individual." It is
noted that an individual is not required to consent to the registration of a person as a
supporter of the individual in the circumstances set out in subparagraph 37(6)(b)(i). This
amendment removes references to subparagraph 37(6)(b)(iii) and is consequential to
amendment (25) which removes subparagraph 37(6)(b)(iii) from the Bill.
Amendment (27)
Amendment (27) notes clause 43 to 48 are to be opposed. The effect of this amendment is to
omit 43 to 48, which relate to the way in which the System Governor may determine certain
supporters to have decision-making authority, i.e. to be decision-making supporters.
Amendment (28) and (29)
Amendment (28) amends clause 49 to omit "referred to in" and substitute it with "covered
by". This amendment corrects a reference to a person "referred to" in subclause 28(2) that
should be a reference to a person "covered by" subclause 28(2).
9
Amendment (29) amends clause 49 to omit subclause 49(4) and substitute it with "while a
person's registration as a supporter of an individual is suspended the registration has no effect
for the purposes of this Act." This removes the reference to decision-making supporters.
Amendment (30)
Amendment (30) amends clause 52 to insert "or verbal" after "written". This amendment
ensures that supporters can make a verbal request, as well as a written request, for their
registration to be cancelled.
Amendment (31) and (32)
Amendment (31) amends clause 53 to omit "if the supporter is not a decision making
supporter" in paragraph 53(1)(a) and substitute it with "if the supporter is not a person
covered by subsection 28(2)".
Amendment (32) amends clause 53 to omit if the supporter is a decision making supporter" in
paragraph 53(1)(b) and substitute it with "if the supporter is a person covered by subsection
28(2)".
Amendments (31) and (32) remove references to decision-making supporters, replacing those
references with a person covered by subclause 28(2), i.e. guardians, EPOAs, or persons
holding similar authority to make a decision on behalf of the older person. Paragraph 53(1)(a)
as amended ensures that where an individual requests the System Governor to cancel the
registration of a supporter, and the supporter is not a person covered by subclause28(2), the
System Governor must cancel the registration of the supporter. Paragraph 53(1)(b) as
amended ensures that where an individual requests the System Governor to cancel the
registration of a supporter, and the supporter is a person covered by subclause28(2), the
System Governor must consider whether or not to cancel the registration. This is because
subclause 37(6) of the Bill only requires the consent of the supporter to be registered where
that person is a person covered by subclause 28(2), not the consent of the individual.
Amendment (33)
Amendment (33) amends clause 53 to omit subclauses 53(2) and 53(3) and add new
subclause 53(2), 53(3) and 53(3A). The amendment provides that before the System
Governor decides whether to cancel the registration of a person as a supporter of an
individual under paragraph 53(1)(b), the System Governor must give written notice of the
individual's request to the supporter.
Under subclause 53(3), the notice must be given as soon as practicable after the request is
received by the System Governor and provide that the supporter may give the System
Governor, within 28 days after the day the notice is given a statement setting out the reasons
why the person's registration as a supporter of the individual should not be cancelled. This
ensures that the supporter is aware of the individual's request for their cancellation, and gives
them the opportunity to provide a statement to the System Governor to assist with the
decision on whether or not to cancellation the registration.
New subclause 53(3A) sets out the timeframes within which the System Governor must make
the decision. If the supporter is given a notice under subclause 53(2) and gives the System
Governor a statement referred to in paragraph 53(3)(b) within the 28-day period, the System
Governor must make the decision 14 days after receiving the statement. If the supporter is
given a notice under subclause 53(2) but does not give the System Governor a statement
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referred to in paragraph 53(3)(b) within the 28-day period the decision must be made14 days
after the end of that 28-day period. Paragraph 53(3)(c) provides for a default timeframe of
28 days after receiving the request in all cases not captured by paragraphs 53(3)(a) or (b).
Chapter 2--Entry to the Commonwealth aged care system
Amendment (34)
Amendment (34) amends clause 62 to add new subclause 62(3) in relation to undertaking
aged care needs assessments. This amendment provides that when undertaking an aged care
needs assessment, the approved needs assessor must:
• consider the individual's rights mentioned in subsection 23(1) (independence,
autonomy, empowerment and freedom of choice); and
• to the extent possible, make the individual aware of, to support them understand and
empower them to exercise, their rights under the Statement of Rights;
• involve the individual's carer, family member, advocate or other person in the
discussions mentioned in subclause 62(2), if that is the individual's will and
preference.
This amendment addresses concerns raised by stakeholders regarding embedding the rights of
individuals into the aged care needs assessments clearly in the legislation.
Amendment (35)
Amendment (35) amends subclause 93(2) which relates to the method or procedure for
allocations, and omits the words "may prescribe" and substitutes them with "must prescribe,
if relevant,". This clarifies that the rules must prescribe a method or procedure that the
System Governor must follow in deciding the order of allocation under subclause 93(1) for a
classification type for a service group, where that is relevant.
Chapter 3--Registered providers, aged care workers and aged care digital platform
operators
Amendment (36)
Amendment (36) is a technical correction which omits and substitutes clause 130. New clause
130 sets out that if an entity's registration as a registered provider is suspended for a period
under section 129, the entity's registration is taken not to be in effect for that period. It is
noted that, this means the registered provider will not be eligible for funding under Chapter 4.
Amendment (37)
This amendment amends clause 144, which reflects the fundamental importance of the
Statement of Rights and the Statement of Principles through a condition of registration for
certain registered providers. Amendment (37) omits paragraph 144(1)(b) and substitutes new
paragraph 144(1)(b).
New paragraph 144(1)(b) strengthens the language in response to stakeholder feedback, of
what is required from registered providers, and makes clear that it is a condition of
registration for a registered provider of a kind prescribed by the rules to have practices in
place to ensure that the provider acts compatibly with the Statement of Rights, in accordance
with subclause 24(2).
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Amendment (38)
This amendment amends clause 163 which provides for immunity from civil or criminal
liability that may arise in relation to the use of a restrictive practice in particular
circumstances and where certain conditions are met. Amendment (3) inserts ", before
1 December 2026" after "if" in subclause 163(1).
While the immunity at clause 163 is only intended to apply where restrictive practices have
been used in a way that is consistent with the requirements under the rules as set out in
clause 18, the effect of this amendment is to ensure the immunity provision will cease to have
effect on 1 December 2026. This is because the proposed consent arrangements may result in
a registered provider, or relevant individual, relying on consent by a person who is authorised
to give that consent under the Commonwealth's aged care laws, but who may not have the
requisite authority under the relevant State or Territory laws.
It is the policy intention that clause 163 will ensure that a registered provider or individual
who used or assisted in the use of a restrictive practice in relation to an individual can rely on
the informed consent of a person authorised to provide that consent, where the individual
does not have the capacity to consent themselves.
This amendment addresses concerns from stakeholders in relation to the restrictive practices
decision-maker hierarchy and the immunity from civil or criminal liability in relation to the
use of restrictive practices. Including a reference to the application of the provision only
being in force up until 1 December 2026 signals current arrangements are a temporary
measure subject to State and Territories implementing compliant legislation.
Amendment (39)
Amendment (39) makes a technical correction to clause 169 to omit "individual" from
paragraph 169(b) and substitute "person", to align with the language in the clause.
Amendment (40)
Amendment (40) amends subclause 180(1) in relation to the application of the duty for
certain responsible persons. the duty for certain responsible persons is intended to only apply
to those responsible persons who are responsible for the executive decisions of the registered
provider, or any other person who has authority or responsibility for (or significant influence
over) planning, directing or controlling the activities of the registered provider.
Amendment (40) omits "(other than a person referred to in subparagraph 12(1)(c)(ii))" and
substitutes it with "under paragraph 12(1)(a) or (b)". This amendment makes it clear that the
duty on certain responsible persons set out in clause 180 does not apply to anyone who meets
the definition of paragraph 12(1)(c) of the definition of responsible person, being:
• any person who has responsibility for overall management of the nursing services
delivered by the registered provider, or overall management of the nursing services
delivered at an approved residential care home of the registered provider, and who is a
registered nurse (within the meaning of subparagraph 12(1)(c)(i)); and
• any person who is responsible for the day-to-day operations of an approved residential
care home or service delivery branch of the registered provider (within the meaning of
subparagraph 12(1)(c)(ii)).
This recognises that the scope of the duty is intended only to capture those who hold critical
roles and have the potential to influence the culture and accountability of a registered
provider to uphold their duty through their decisions and behaviours. It is not the intention of
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the Government to impact suitably qualified individuals, including nursing managers, from
taking on, and working in, important roles in aged care out of fear of liability of the
responsible person duty.
However, even though subparagraph 12(1)(c)(i) is excluded from the application of the duty
on certain responsible persons at clause 180, the intent of amendment (40) does not preclude
the statutory duty from applying to persons under paragraph 12(1)(b) just on the basis that the
person is a registered nurse. This means that even if an individual is a registered nurse, or
holds a position such as Director of Nursing, if they have authority or responsibility for (or
significant influence over) planning, directing or controlling the activities of the registered
provider, the individual would be covered by the statutory duty at clause 180 and would be
required to exercise due diligence to ensure that the registered provider complies with the
provider's duty under clause 179.
Chapter 4--Funding of aged care services
Amendment (41)
This amendment inserts a new subclause 197(4) to the end of clause 197 which relates to
secondary person-centred supplements for an individual for a day for a classification type for
the service group home support.
New subclause 197(4) makes clear that without limiting subclause 197(2), the circumstances
prescribed by the rules as circumstances in which the fee reduction supplement will apply to
an individual for a day must include circumstances that involve financial hardship.
This amendment responds to stakeholder concerns that it was not clear on the face of the Bill
that financial hardship would be included for the fee reduction supplement.
Amendment (42) and (43)
These amendments insert new subclauses into clause 211 which establishes a notional
assistive technology account as a method for managing payments for ongoing or short-term-
funded aged care service through the assistive technology service group available to an
individual, i.e. funding for yet to be delivered ongoing or short-term- funded aged care
services (credits) against payments for ongoing or short-term- funded aged care services that
have been delivered (debits). This notional account (and the rules to maintain it) provides the
mechanism for registered providers to receive subsidy for delivered services.
Amendment (42) inserts new subclause 211(1A) to clause 211 to clarify that without limiting
subclause 211(1), rules made for the purposes of subclause 211(1) may provide that the
System Governor may determine the account period for the individual.
Amendment (43) inserts new subclause 211(4B) to clause 211 to clarify that without limiting
subclause 211(4A), rules made for the purposes of subclause 221(4A) may provide that the
System Governor may determine the amount for the individual.
Amendment (44)
Amendment (44) inserts a new subclause 214(4) to the end of clause 214 which relates to
secondary person-centred supplements for an individual for a day for a classification type for
the service group assistive technology.
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New subclause 214(4) makes clear that without limiting subclause 214(2), the circumstances
prescribed by the rules as circumstances in which the fee reduction supplement will apply to
an individual for a day must include circumstances that involve financial hardship.
This amendment responds to stakeholder concerns that it was not clear on the face of the Bill
that financial hardship would be included for the fee reduction supplement.
Amendment (45)
This amendment inserts new subclause 220(1A) after subclause 220(1) to allow the rules to
provide that the System Governor can determine the account period for the individual.
This new subclause will allow the rules to provide for extra amounts to be credited to an
individual's account for the classification type short term, and for the System Governor to
determine when this can happen (for example, the day and circumstances), as well as the
quantum of the amount that can be credited to an individual's account.
Amendment (46)
Amendment (46) inserts a new subclause 223(4) to the end of clause 223 which relates to
secondary person-centred supplements for an individual for a classification type for the
service group home modification.
New subclause 223(4) makes clear that without limiting subclause 223(2), the circumstances
prescribed by the rules as circumstances in which the fee reduction supplement will apply to
an individual for a day must include circumstances that involve financial hardship.
This amendment responds to stakeholder concerns that it was not clear on the face of the Bill
that financial hardship would be included for the fee reduction supplement.
Amendment (47)
Amendment (47) inserts a new subclause 231(4) to the end of clause 231 which relates to
secondary person-centred supplements for an individual for a day for the classification type
ongoing or short-term for the service group residential care.
New subclause 231(4) makes clear that without limiting subclause 231(2), the circumstances
prescribed by the rules as circumstances in which the fee reduction supplement will apply to
an individual for a day must include circumstances that involve financial hardship.
This amendment responds to stakeholder concerns that it was not clear on the face of the Bill
that financial hardship would be included for the fee reduction supplement.
Amendment (48)
Amendment (48) omits subclause 268(1) and substitutes it with a new subclause 268(1). The
effect of this amendment is to prescribe that the Grantee Code of Conduct applies to persons
or bodies to whom money may be payable under an arrangement made under
subclause 265(1) as well as those who receive a grant of financial assistance made under
subclause 265(1). This ensures the Grantee Conduct of Conduct extends to persons or bodies
who have entered into a contract or agreement, but who have not yet received a grant of
financial assistance.
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Amendment (49)
Amendments (49) makes a technical correction to subclause 314(2) to omit the word
"decision" and substitute it with "determination".
Chapter 5--Governance of the aged care system
Amendments (50) (51) (52) and (53)
Amendments (50) (51) (52) and (53) make technical corrections to the heading to clause 343
to add "or bodies" and to subclause 343(1) to omit the word "person" and substitute it with
"body". This broadens the System Governor's power to request information not only from a
person, but also a body (such as an entity or other body), where the System Governor
reasonably believes that the body has information or documents relevant to the System
Governor's functions.
Amendment (54)
Amendment (54) amends clause 375 which provides that the Commissioner must consult the
Minister and the Advisory Council in preparing a corporate plan in accordance with section
35 of the Public Governance, Performance and Accountability Act 2013 to insert a reference
to the Complaints Commissioner. This ensures that the Aged Care Quality and Safety
Commissioner must consult the Minister, the Complaints Commissioner and the Advisory
Council on the development of the Commission's Corporate Plan.
Chapter 6--Regulatory mechanisms
Amendment (55)
Amendment (55) omits clause 405 relating to additional monitoring powers.
This amendment, and those following it, are in response to the matters raised by the Senate
Standing Committee for the Scrutiny of Bills, specifically in relation to the additional powers
in Part 5 of Chapter 6, which are intended to apply only in conjunction with the investigation
powers under Part 4 of that Chapter.
This approach aligns to that within the NDIS Act and supports harmonisation of the
regulatory approach adopted by regulators across the care sector.
Amendment (56)
Amendment (56) is a consequential amendment in response to amendment (54) and omits the
words "monitoring and" from the heading of Part 5 of Chapter 6 of the Bill.
Amendment (57)
Amendment (57) is a consequential amendment to paragraph 435(a) in response to
amendment (55), and omits the reference to "sections 405", and substitutes "section".
Amendment (58)
Amendment (58) inserts new subclause 436(1A) to clause 436 which makes it clear that this
provision applies only where an authorised person exercises investigation powers under
Part 3 of the Regulatory Powers Act in relation to premises entered under an investigation
warrant for the purposes of this Bill.
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This aligns with the approach in subsection 73ZG(1) of the NDIS Act.
Amendment (59)
Amendment (59) inserts new subclause 437(1A) to clause 437 which makes clear that this
provision applies only where an authorised person exercises investigation powers under
Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Bill.
This aligns with the approach in subsection 73ZH(1) of the NDIS Act.
Amendment (60)
Amendment (60) inserts new subclause 438(1A) to clause 438 which makes clear that this
provision applies only where an authorised person exercises investigation powers under
Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Bill.
This aligns with the approach in subsection 73ZI(1) of the NDIS Act.
Amendment (61)
Amendment (61) inserts new clause 445A at the end of Division 2 of Chapter 6. This
amendment creates a bespoke multiplier for the penalties for subclauses 179(3) and 179(5)
regarding the contravention of the statutory duty for registered providers. The amendment
clarifies the interaction with subsection 82(5) of the Regulatory Powers Act as otherwise it
has a default corporate multiplier that would make those subclauses ambiguous.
Clause 445A - Amount of penalty for serious failures to comply with registered provider
duty
Clause 445A sets out that despite subsection 82(5) of the Regulatory Powers Act, the
pecuniary penalties for a contravention of subclause 179(3) or 179(5) of the Bill are not to be
more than the applicable penalty specified in those subclauses.
This makes clear that the body corporate multiplier rule prescribed in subsection 82(5) of the
Regulatory Powers Act is not intended to apply to the civil penalty provisions in clause 179.
Instead, clause 179 provides for a bespoke multiplier that is intended to apply to all entity
types who are registered providers through the inclusion of two levels of civil penalties in the
case of contraventions by a registered provider that is an individual or by a registered
provider other than an individual.
Chapter 7--Information management
Amendment (62)
Amendment (62) is a consequential amendment to amendment (63) below, which inserts new
subclause 537(9A). This amendment omits "If" from subclause 537(9) and substitutes
"Subject to subsection (9A), if". This ensures that the use or disclosure of information under
subclause 537(9) is subject to new subclause 537(9A).
Amendment (63)
Amendment (63) amends clause 537 to insert new subclause 537(9A).
New subclause 537(9A) requires a person who is disclosing information for the same purpose
for which it was disclosed to them to de-identify the information where appropriate (and
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where the purpose can be achieved by the disclosure of information that has been de-
identified).
Amendment (64)
Amendment (64) amends paragraph 544(2)(a) to insert a new subparagraph 544(2)(a)(ia)
which provides that, without limiting the things that the rules may require the System
Governor to publish, the rules may provide that information must be published about the
duration of waiting periods for funded aged care services. This provides the System Governor
with the power to publish information about wait times, including, for example, in relation to
application for funded aged care services to the time that services commence.
Chapter 8--Miscellaneous
Amendment (65)
Amendment (65) is a technical amendment which omits paragraph 555(c) from the simplified
outline of Chapter 8, as all provisions relating to supporter arrangements are contained in
Chapter 1 of the Bill.
Amendment (66)
Amendment (66) amends clause 557 to omit the table items 3 and 4, which refer to decisions
relating to the registration of decision-making supporters. This amendment is consequential
to amendment (16) which removes decision-making supporters from the Bill.
Amendments (67), (68) and (69)
Amendments (67), (68) and (69) make minor technical amendments to clause 569 which
relates to delegations to the Chief Executive Centrelink to provide that the System Governor
may delegate certain powers and functions to the Chief Executive Centrelink.
Amendments (67) amends paragraph 569(1)(a) to omit "Subdivision B of Division 2 of Part 5
of Chapter 4" and substitutes it with "Part 5 of Chapter 4 (means testing)".
Amendment (68) omits "Subdivision B of Division 2 of" from paragraph 569(1)(b).
Amendment (69) is consequential to amendments (67) and (68) and omits the Note under
paragraph 569(1)(b).
These amendments ensure that all means testing functions may be delegated to the Chief
Executive Centrelink.
Amendments (70), (71) and (72)
Amendments (70), (71) and (72) make minor technical amendments to clause 570 which
relates to delegations to the Chief Executive Medicare, to provide that the System Governor
may delegate certain powers and functions to the Chief Executive Medicare.
Amendment (70) amends paragraph 570(1)(a) to omit "Subdivision B and C of Division 2 of
Part 5 of Chapter 4" and substitutes it with "Part 5 of Chapter 4 (means testing)".
Amendment (71) omits "Subdivision B and C of Division 2 of" from paragraph 570(1)(b).
Amendment (72) is consequential to amendments (70) and (71) and omits the Note under
paragraph 570(1)(b).
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These amendments ensure that all means testing functions may be delegated to the Chief
Executive Medicare.
Amendments (73), (74), (75) and (76)
Amendments (73), (74), (75) and (76) make minor technical amendments to clause 571
which relates to delegations to the Veterans' Affairs Secretary, to provide that the System
Governor may delegate certain powers and functions to the Veterans' Affairs Secretary.
Amendment (73) amends clause 571 to insert before paragraph 571(1)(a) that "the System
Governor's powers and functions under Division 1 of Part 5 of Chapter 4 (means testing in a
home or community setting); or".
Amendment (74) amends paragraph 571(1)(a) to insert the "(value of an individual's assets)"
after "Chapter 4".
Amendment (75) amends clause 571 to omit paragraph 571(1)(b) and substitute it with a new
paragraph 571(1)(b) "the System Governor's powers and functions under Part 2 of this
Chapter relating to reconsidering decisions under Division 1 of Part 5 of Chapter 4; or
Subdivision C of Division 2 of Part 5 of Chapter 4."
Amendment (76) is consequential to the above amendments and omits the Note under
paragraph 571(1)(b).
These amendments ensure that all means testing functions for funded aged care services
delivered in a home or community setting (that is, for Support at Home) and determining the
value of an individual's assets for the purposes of means testing for residential care may be
delegated to the Veterans' Affairs Secretary.
Amendments (77), (78), (79) and (80)
Amendments (77), (78), (79) and (80) make minor technical amendments to clause 572
which relates to delegations to the Repatriation Commission, to provide that the System
Governor may delegate certain powers and functions to the Repatriation Commission.
Amendment (77) amends clause 572 to insert paragraph 572(1)(aa) "the System Governor's
powers and functions under Division 1 of Part 5 of Chapter 4 (means testing in a home or
community setting); or" before paragraph (1)(a).
Amendment (78) amends clause 572 to insert "(individual's total assessable income)" after
"Chapter 4" in paragraph 572(1)(a).
Amendment (79) amends clause 572 to omit paragraph 572(1)(b) and substitute it with new
paragraph 572(1)(b) "the System Governor's powers and functions under Part 2 of this
Chapter relating to reconsidering decisions under Division 1 of Part 5 of Chapter 4; or
Subdivision B of Division 2 of Part 5 of Chapter 4."
Amendment (80) is consequential and omits the Note under paragraph 572(1)(b).
These amendments ensure that all means testing functions for funded aged care services
delivered in a home or community setting (that is, for Support at Home) and determining the
individual's total assessable income for the purposes of means testing for residential care may
be delegated to the Repatriation Commission.
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Amendments (81), (82), (83), (84), (85) and (86)
Amendments (81), (82), (83), (84), (85) and (86) make minor technical amendments to clause
573 which relates to delegations to the Social Services Secretary to provide that the System
Governor may delegate certain powers and functions to the Social Services Secretary.
Amendment (81) inserts a new paragraph 573(1)(aa) before paragraph 573(1)(a). New
paragraph 573(1)(aa) inserts that "the System Governor's powers and functions under
Division 1 of Part 5 of Chapter 4 (means testing in a home or community setting); or".
Amendment (82) amends clause 573 to insert "(individual's total assessable income)" after
"Chapter 4" in paragraph 573(1)(a).
Amendment (83) amends clause 573 to insert "(grants)" after "Chapter 4" in paragraph
573(1)(b).
Amendment (84) amends clause 573 to omit "sections" in paragraph 573(1)(c).
Amendment (85) amends clause 573 to insert subparagraph 573(1)(c)(ia) "Division 1 of Part
5 of Chapter 4;" before subparagraph 573(1)(c)(i).
Amendment (86) is consequential and (87) and omits the Note under paragraph 573(1)(b).
These amendments ensure that the following functions may be delegated to the Social
Services Secretary:
• grants administration;
• all means testing functions for funded aged care services delivered in a home or
community setting (that is, for Support at Home); and
• determining the individual's total assessable income for the purposes of means testing
for residential care may.
Amendment (87)
Amendment (87) is a consequential amendment following amendment (88) below, and adds
"to staff of the Commission" at the end of the heading to subclause 575(2).
Amendment (88)
Amendment (88) amends clause 575 in relation to the delegation by Commissioner to the
Complaints Commissioner to insert new subclauses 575(3), 575(4) and 575(5).
This amendment imposes limits on the Complaints Commissioners' sub-delegation of powers
and functions delegated under subclause 575(1), to align with those limits set out in
subclauses 576(2) and 576(4).
New subclause 575(3) requires that, before subdelegating a function or power under
subclause 575(2) to an APS employee holding, occupying, or performing the duties of a
specified office or position that is not an SES office or position, the Complaints
Commissioner must have regard to whether the office or position is sufficiently senior for the
employee to perform the function or exercise the power. This amendment ensures that sub-
delegations by the Complaints Commissioner are to appropriate staff.
New subclause 575(4) provides that if, under subclause 575(1), the Commissioner delegates a
power or function to the Complaints Commissioner, the Complaints Commissioner may, in
writing, subdelegate the power or function to a consultant engaged under clause 371.
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New subclause 575(5) clarifies that before subdelegating a function or power under subclause
575(4) to a consultant engaged under clause 371, the Complaints Commissioner must have
regard to whether the person has appropriate qualifications or expertise to perform the
function or exercise the power. This amendment ensures that sub-delegations by the
Complaints Commissioner are to appropriate consultants.
Amendment (89)
This amendment amends subclause 599(2) to insert new paragraph 599(2)(aa) which provides
for an additional matter to be reported on as part of the Annual Report on the operation of the
Act.
New paragraph (aa) will require the report to include the extent of funded aged care services
accessed by individuals from different locations and with different backgrounds and life
experience.
Amendment (90)
Amendment (90) inserts new clause 600A after clause 600, which relates to the independent
review of accommodation pricing. This review covers matters relating to how
accommodation prices and subsidies and supplements are set.
Subclause 600A(1) provides that the Minister must cause an independent review of
accommodation pricing under this Act.
Subclauses 600A(2) and 600A(3) provides that the persons who conduct the review must
give the Minister a written report of the review, and the Minister must cause a copy of that
report to be tabled in each House of the Parliament no later than 1 July 2026.
Amendment (91)
Amendment (91) inserts new paragraph 602(7)(ba) after paragraph 602(7)(b).
Paragraph 602(1)(ba) sets out that the rules may prescribe an amount by specifying that the
amount or period may be set by a determination made by the System Governor in accordance
with the rules.
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