In response to recommendations from the Royal Commission into Aged Care Quality and Safety, the Government is building a new Aged Care Act to replace the existing Aged Care Act 1997 (Cth) and the Aged Care Quality and Safety Commission Act 2018 (Cth). This will have a major impact on how aged care is regulated, and therefore a profound impact on the operations of aged care providers. Here’s what you need to know and how you can have your say.

When Will the Act Be Changed?

According to the Department of Health and Aged Care (Department), the new Aged Care Act is planned to commence from 1 July 2024, with the home care component to be built in from 2025.

As at August 2023, the Act is in the consultation phase, which means that the Department has published a Consultation Paper on the proposed Act and asked providers and others to offer feedback. Consultation closes 8 September 2023.

Following consultation, the Department will publish an overview of key issues and themes that emerged from the consultation. Then, “by the end of 2023” the Department will release a draft version of the proposed Act for consultation. After that, the proposed Act will be finalised and presented to Parliament.

Why is the Act Being Changed?

The Royal Commission into Aged Care Quality and Safety found that the current Aged Care Act 1997 (Cth) is no longer fit for purpose. The Commission’s fundamental criticism was that the structure of the Act should focus less on providers and how to fund them and more on consumers and their needs.

What are the Proposed Changes?

Structure and Purpose

The proposed new purpose of the Act is to “facilitate access by older people to quality and safe, funded aged care services, based on their individual needs, with the aim of assisting them to continue to live active, self-determined and meaningful lives as they age.”

Constitutional Foundation (Allowing More Types of Businesses to Provide Aged Care)

The Australian Constitution is the foundation of all laws in Australia. It tells us what the Federal and State/Territory Governments are allowed to make laws about, and what they are not allowed to make laws about. This means that for every law you should be able to say, “yes, the Government is allowed to make this law because it is authorised by section x of our Constitution”. This is called the “Constitutional basis” of the law.

Currently, the Constitutional basis of the Aged Care Act is the Federal Government’s power with respect to corporations. The Department plans to change the Constitutional basis to the Federal Government’s power with respect to international conventions. It’s hard to know what the effects of this change will be, but the Department believes that this shift will ensure that:

• the legislation will be focused on the needs of older people accessing or seeking to access aged care services
• a wider range of businesses, not just those who are “constitutional corporations”, will be able to deliver funded aged care services. And this will “support new aged care providers to enter markets where limited funded aged care services are currently available”.

Statement of Rights

The proposed new Act will include a statement of the rights that all individuals are entitled to. There are 16 proposed rights which you can read in full in the Consultation Paper. In summary, these are the right to:

1. exercise choice and make decisions (including decisions involving risk)
2. equitable access to culturally appropriate aged care
3. exercise choice between available aged care services
4. communicate in their preferred language or method of communication
5. be treated with dignity and respect
6. freedom from all forms of degrading or inhumane treatment, violence, exploitation, neglect and abuse
7. freedom from inappropriate use of restrictive practices
8. safe, fair, equitable and non-discriminatory treatment in accessing aged care services
9. equitable access to palliative and end-of-life care when required
10. be supported to exercise their rights, voice opinions and make complaints
11. have their identity, culture and diversity valued and supported
12. their personal privacy and to have their personal information protected
13. seek, and be provided with, their personal information
14. have the role of significant people in their life acknowledged and respected
15. be supported by an advocate or a person of their choice
16. opportunities and assistance to stay connected with family and friends.  

Statement of Principles

The proposed new Act will include a statement of the principles that will “guide the decisions, actions and

behaviours of everyone operating in the aged care system” (including providers and regulators). There are 15 proposed principles which you can read in full in the Consultation Paper. In summary, these are:

1. safety, health, wellbeing and quality of life of older people should be the primary consideration
2. focus on person-centred care
3. put older people first and support people to: reside at home if they wish, make fulfilling decisions, maintain and improve health as long as possible, and understand their rights
4. care should be accessible and culturally appropriate
5. the aged care system should be transparent
6. funding should be used to support the delivery and regulation of services which provide targeted care and support for older people in need
7. the aged care system should not be used inappropriately to address service gaps in other care sectors
8. for younger people, alternative services that meet their needs are preferred to aged care
9. the aged care system should fund services for older people most in need; individuals are expected to meet some of the costs if they can afford to
10. the aged care system should incorporate effective networks with other services
11. the aged care system should be supported by a diverse and sustainable market, as well as a trained and appropriately skilled workforce – with aged care workers empowered to contribute to care
12. feedback and complaints should be used to inform and promote continuous improvement
13. regulation of the aged care sector should promote innovation and continuous improvement, identify failures and risks, be responsive and proportionate, focus on the health and safety of older people, promote person-centred and culturally appropriate care, and strive for regulatory alignment with other care and support sectors
14. the Commission should function in a way that seeks to prompt and encourage providers to operate viable services that ensure continuity of care
15. the aged care system should be managed to ensure its sustainability.

Defining High Quality Care

In order to clarify requirements and lift standards, the new Act will include this definition of “high quality care”:

“Delivery of aged care services to a person who has been granted access to subsidised aged care services in a manner that prioritises:

• delivery of funded aged care services with compassion and respect for the individual, their life experiences, self-determination and dignity, and their quality of life
• providing funded aged care services that are trauma aware and healing informed
• providing funded aged care services that are responsive to the person’s expressed personal needs, aspirations, and their preferences for service delivery
• facilitating regular clinical and non-clinical reviews to ensure that the services and supports delivered continue to reflect their individual needs
• supporting the person to enhance their physical and cognitive capacities and mental health, and
• supporting the person to participate in cultural, recreational, and social activities, and remain connected and able to contribute to their community.”

Duty and Compensation

This proposal is still in its early stages and the Department is waiting for feedback before finalising details. At this stage, the Department is considering imposing a new statutory duty of care on registered providers. This would include:

• a statutory duty on providers to take reasonable steps to avoid their actions adversely affecting the health and safety of persons in their care (the Department specifies that this would not be a duty to provide “high quality care”)
• a “due diligence” duty on a provider’s “responsible persons” to take reasonable steps to ensure that the provider complies with the statutory duty discussed above
• a duty on aged care workers to comply, cooperate and take reasonable care that their acts or omissions do not adversely affect the health and safety of individuals to whom they provide care.

Providers and individuals who breach these duties could face criminal penalties. Consumers who suffer harm due to a breach of duty would have additional ways of applying for compensation.

These duties are modelled on those that already exist in the Work Health and Safety Act 2011 (Cth).

Stronger Powers for the Aged Care Quality and Safety Commission

The new Act will include powers for the Aged Care Quality and Safety Commission to:

• vary, suspend or revoke a provider’s registration
• issue banning orders for providers and individual workers
• issue an infringement notice, enter into enforceable undertakings, or apply for civil penalties
• in critical failures scenarios:
  • appoint a statutory manager to take over management of a provider in circumstances that represent an unacceptable risk to care recipients to mitigate those risks, and/or
  • help to arrange the appointment of a voluntary administrator of a provider if a provider is trading insolvent in breach of other applicable laws.

Protection for Whistleblowers

People who report wrongs under certain circumstances are entitled to special “whistleblower” protections under the law. The current Aged Care Act only provides whistleblower protections where a person reports information about reportable incidents under the Serious Incident Response Scheme (SIRS). The new Act will expand the protections so that they apply to people who report a wider range of wrongs within the aged care sector.

Nominee Arrangements (Supported Decision-Making)

The new Act will clarify the confusing and inconsistent requirements that currently regulate the process of appointing a representative to help with decision-making.

Eligibility for Aged Care Services

The new Act will introduce a new test for determining eligibility for aged care. The test aims to simplify the process and base it on the applicant’s needs.

“The intention is that the new Act will provide for a common entry point for access to the new aged care framework – with all individuals seeking access to aged care services required to go through the same process and meet certain threshold eligibility requirements, irrespective of what type of aged care services they believe they may require access to.”

How to Have Your Say

• Complete the Department’s short survey
• Sending a written submission or comments by email to AgedCareLegislativeReform@Health.gov.au

Consultation submissions close Friday, 8 September 2023.

More Information

Department of Health and Aged Care: Consultation – Foundations of the new Aged Care Act