House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Aged Care and Sport, the Hon. Anika Wells MP)

OUTLINE

The Aged Care (Consequential and Transitional Provisions) Bill 2024 (the Transitional Bill) makes transitional and consequential provisions to support the commencement of the Aged Care Bill 2024 (the Aged Care Bill). The Aged Care Bill will replace the Aged Care Act 1997 (the old Act), the Aged Care Quality and Safety Commission Act 2018 (the Commission Act) and the Aged Care (Transitional Provisions) Act 1997 (the old Transitional Provisions Act) as the Commonwealth's primary aged care legislation.

The Transitional Bill forms part of a package of Bills that will establish a modern rights-based legislative framework that focuses on the safety, health and wellbeing of older individuals and places their needs at the centre of the aged care system. Funding and regulation of programs will be targeted for the benefit of older individuals, their families and carers.

The Transitional Bill will repeal the old Act, the Commission Act and the old Transitional Provisions Act.

In addition, the Transitional Bill will make consequential amendments to Commonwealth legislation to reflect the repeal of the old law, ensuring references to them are read as references to the new Act and associated legislative instruments.

The Transitional Bill further provides for the legislative and administrative mechanisms to allow for elements of the existing aged care framework to move seamlessly to the new arrangements to be established under the Aged Care Bill. Importantly, this includes ensuring that continuity of care is maintained for older persons accessing aged care services through transitional arrangements which see their approvals to access care and the levels of care available to them safeguarded through transition.

Similarly, the Transitional Bill provides for the transition of approved providers of aged care to the new registration and regulatory framework for 'registered providers'. In addition, this will include those aged care programs which were previously outside the scope of the existing aged care legislation, such as the National Aboriginal and Torres Strait Islander Flexible Aged Care (NATSIFAC) Program and the Commonwealth Home Support Programme (CHSP), thereby ensuring consistent and effective regulation across the delivery of all aged care services by the aged care sector.

The Transitional Bill provides for the existing Commissioner and Aged Care Quality and Safety Commission to transition to their equivalent counterparts established under the new Act. This will allow continuing regulation of the delivery of aged care services to be maintained throughout transition.

Funding arrangements are integral to the operation of the aged care system. The Transitional Bill does not specifically address transition of funding arrangements nor the Government's commitment made on introduction of the Aged Care Bill that specified persons already in the aged care system would be no worse off as a result of transition. Instead, these matters are provided for in the Aged Care Bill itself and through its legislative instruments. This ensures that matters relating to aged care funding can be dealt with in a clear and consolidated manner, regardless of the timing of an individual's entry into the aged care system.

Consequential amendments

Schedule 1 of the Transitional Bill amends the following Commonwealth legislation:

•

Crimes Act 1914

•

Freedom of Information Act 1982

•

National Disability Insurance Scheme Act 2013

Financial Impact Statement

No financial impact on the Commonwealth will arise from the introduction of the Transitional Bill.

Statement of Compatibility with Human Rights

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

Aged Care (Consequential Amendments and Transitional Provisions) 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

The Aged Care (Consequential and Transitional Provisions) Bill 2024 (the Transitional Bill) makes transitional and consequential provisions to support the commencement of the Aged Care Bill 2024 (the Aged Care Bill). The Aged Care Bill will replace the Aged Care Act 1997 (the old Act), the Aged Care Quality and Safety Commission Act 2018 (the Commission Act) and the Aged Care (Transitional Provisions) Act 1997 (the old Transitional Provisions Act) as the Commonwealth's primary aged care legislation.

The Transitional Bill forms part of a package of Bills that will establish a modern rights-based legislative framework that focuses on the safety, health and wellbeing of older individuals and places their needs at the centre of the aged care system. Funding and regulation of programs will be targeted for the benefit of older individuals, their families and carers.

The Transitional Bill will repeal the old Act, the Commission Act and the old Transitional Provisions Act.

In addition, the Transitional Bill will make consequential amendments to Commonwealth legislation to reflect the repeal of the old law, ensuring references to them are read as references to the new Act and associated legislative instruments.

The Transitional Bill further provides for the legislative and administrative mechanisms to allow for elements of the existing aged care framework to move seamlessly to the new arrangements to be established under the Aged Care Bill. Importantly, this includes ensuring that continuity of care is maintained for older persons accessing aged care services through transitional arrangements which see their approvals to access care and the levels of care available to them safeguarded through transition.

Similarly, the Transitional Bill provides for the transition of approved providers of aged care to the new registration and regulatory framework for 'registered providers'. In addition, this will include those aged care programs which were previously outside the scope of the existing aged care legislation, such as the National Aboriginal and Torres Strait Islander Flexible Aged Care (NATSIFAC) Program and the Commonwealth Home Support Programme (CHSP), thereby ensuring consistent and effective regulation across the delivery of all aged care services by the aged care sector.

The Transitional Bill provides for the existing Commissioner and Aged Care Quality and Safety Commission to transition to their equivalent counterparts established under the new Act. This will allow continuing regulation of the delivery of aged care services to be maintained throughout transition.

Funding arrangements are integral to the operation of the aged care system. The Transitional Bill does not specifically address transition of funding arrangements nor the Government's commitment made on introduction of the Aged Care Bill that specified persons already in the aged care system would be no worse off as a result of transition. Instead, these matters are provided for in the Aged Care Bill itself and through its legislative instruments. This ensures that matters relating to aged care funding can be dealt with in a clear and consolidated manner, regardless of the timing of an individual's entry into the aged care system.

Human rights implications

The Aged Care (Consequential Amendments and Transitional Provisions) Bill 2024 (the Transitional Bill) is a companion bill to the Aged Care Bill 2024 (the Aged Care Bill). The Transitional Bill is necessary to give effect to the Government's Aged Care reforms.

The Transitional Bill directly engages the following human rights:

•

the right to health in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 25 of the Convention on the Rights of Persons with Disabilities (CRPD);

•

the right to privacy in article 17 of the International Covenant on Civil and Political Rights (ICCPR) and article 22 of the CRPD;

•

the right to work and rights at work in articles 4 and 6 of the ICESCR; and

•

the right to access information in article 19(2) of the ICCPR and article 21 of the CRPD.

Right to the highest attainable standard of physical and mental health

The right to health is contained under article 12(1) of the ICESCR and article 25 of the CRPD. These articles refer to the right of individuals, including persons with disability, to the highest attainable standard of physical and mental health. The UN Committee on Economic Social and Cultural Rights has stated it includes the right to control one's health and body and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.

The Transitional Bill engages the right to the highest attainable standard of physical and mental health by ensuring individuals who entered the aged care system under the Aged Care Act 1997 (the old Act) can continue to receive the same level of care under the Aged Care Bill. Part 2 of Schedule 2 to the Transitional Bill deals with transitioning individuals, where individuals who were approved under the old Act to receive residential care, home care, or flexible care, or were approved for the Commonwealth Home Support Programme (CHSP) or the National Aboriginal and Torres Strait Islander Flexible Aged Care (NATSIFAC) Program, will be transitioned to the new system under decisions that the System Governor is taken to have made under the Aged Care Bill in relation to eligibility determinations, decisions that the individuals require access to funded aged care services and classification types that correspond to the type of care they were receiving under the old Act. This ensures individuals will continue to be able to access health facilities and goods, including nursing and personal care services, medication management services, therapeutic and allied health services and leisure and interest activities. The objectives of the Transitional Bill are therefore consistent with the right to health as they ensure continuity of care for those currently accessing aged care services under the old Act.

Right to privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. Article 22 of the CRPD outlines a similar right. Although the United Nations Human Rights Committee (Human Rights Committee) has not defined 'privacy', it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The right to privacy under article 17 can be permissibly limited to achieve a legitimate objective and where the limitations are lawful and not arbitrary. The term 'unlawful' in article 17 of the ICCPR means that no interference can take place except as authorised under domestic law. Additionally, the term 'arbitrary' in article 17(1) of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The Human Rights Committee has interpreted 'reasonableness' to mean that any limitation must be proportionate and necessary in the circumstances.

The Transitional Bill limits the right to privacy for aged care workers and responsible persons of registered providers of funded aged care services as part of the consequential amendments implementing criminal history checks for a person seeking to work or already working as an aged care worker or responsible person. The amendment seeks to allow the disclosure of a person's criminal history when being assessed for employment or continued employment as a person in aged care. The assessment is undertaken to assess whether there is a risk to the safety of an individual accessing funded aged care services if the person were to be employed by a registered provider and was to work, or continue to work, with the individual accessing funded aged care services. The provision prescribes persons and bodies with exemptions to Divisions 2 and 3 of Part VIIC of the Crimes Act 1914 (Crimes Act) which would otherwise prevent the disclosure and taking into account of pardons for persons wrongly convicted, quashed convictions and spent convictions. The provision provides that before the Governor-General makes a regulation prescribing a person or body, the Minister must be satisfied that the person or body:

•

is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with an individual accessing funded aged care services; and

•

complies with applicable Commonwealth law, State law or Territory law relating to privacy, human rights and records management; and

•

complies with the principles of natural justice; and

•

has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of an individual accessing funded aged care services.

In line with the National Disability Insurance Scheme (NDIS) worker screening, certain offences, such as child-pornography related offences or serious assault against a child or vulnerable person, will result in an automatic exclusion if the person was

18 years old or above at the time of the offence. However, safeguards will be in place through a risk-based approach that will provide state and territory worker screening assessors with a framework for considering a person's criminal history and patterns of behaviour over time that would indicate potential future risk to an individual accessing funded aged care services. Worker screening assessors will undertake a rigorous process to determine the relevance of a particular event to whether an applicant poses a risk to individuals accessing funded aged care services. Worker screening assessors will consider:

•

character references; and

•

references from previous employers; and

•

the nature, gravity and circumstances of the event and how it contributes to a pattern of behaviour that may be relevant to aged care related services such as personal care; and

•

the length of time that has passed since the event occurred; and

•

the vulnerability of the victim at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event; and

•

the person's criminal, misconduct and disciplinary, or other relevant history, including whether there is a pattern of concerning behaviour; and

•

the person's conduct since the event; and

•

all other relevant circumstances in respect of their offending, misconduct or other relevant history, including attitudes towards offence or misconduct, and the impact on their eligibility to be engaged in relevant aged care related services.

These safeguards ensure that the process is fair and respects individuals' rights. They aim to balance the need for safety and the protection of vulnerable people accessing funded aged care services, with the individual's right to privacy. The more complete the information about patterns of behaviour, the more accurate the assessment of risk. Even offences that are minor, not violent or sexual in nature, are not directly related to aged care worker employment or happened some time ago, contribute to an assessment of risk.

In relation to the issue of access to information on spent, quashed and pardoned convictions, criminal history, including spent, quashed or pardoned convictions, are a key indicator of past patterns of behaviour. Ensuring that state and territory worker screening assessors are provided with a complete picture of a person's criminal history information will ensure that the risk assessment process is as accurate and well-informed as possible. This will not be known until the specific circumstances surrounding the pardoned or quashed conviction are considered by the worker screening assessors, which is why they need access to such information as proposed in the Transitional Bill.

Permitting prescribed persons or bodies to access detailed criminal history information is therefore considered reasonable and proportionate to achieve the lawful objective of protecting vulnerable people receiving care in the aged care system. Persons employed in the delivery of funded aged care services are in a position of trust and in many cases will have access to personal property, finances and medication of the individuals under their care. Criminal history is just one of a multitude of factors being taken into account for the purposes of screening workers, and the circumstances around pardoned, quashed and spent convictions may be relevant to the broader assessment of a person's suitability to work with an individual accessing funded aged care services. This approach also aligns with equivalent existing provisions in subdivisions A and AA of Division 6 of Part VIIC of the Crimes Act, which provide similar exemptions for the purposes of assessing persons who work, or seek to work, with children and persons with disability. This supports a harmonised approach to screening workers across the care sector and serves the legitimate purpose of protecting vulnerable individuals seeking care.

The provisions of the Transitional Bill ensure a thorough and fair risk assessment process, including safeguarding and transparency, while respecting the human rights and natural justice principles. The balance between the right to privacy and safety is maintained through a risk-based approach, ensuring that only relevant information is considered and that the restrictions are as minimally intrusive as necessary to achieve the Transitional Bill's objectives, ultimately safeguarding the safety and wellbeing of individuals accessing funded aged care services. While the Transitional Bill limits the right to privacy, it is justified as it does this in pursuit of the permissible legitimate objectives of the Transitional Bill, in a way that is reasonable, necessary and proportionate in the particular circumstances to achieving those objectives.

In addition, the Transitional Bill promotes the right to privacy through individuals maintaining their personal information as protected information for the purposes of the Aged Care Bill. Part 2 of Schedule 2 to the Transitional Bill deals with transitioning individuals, where individuals who were approved under the old Act to receive residential care, home care or flexible care, or were approved for the Commonwealth Home Support Programme (CHSP) or the National Aboriginal and Torres Strait Islander Flexible Aged Care (NATSIFAC) Program, will be transitioned to the new system under decisions that the System Governor is taken to have made under the Aged Care Bill in relation to eligibility determinations, decisions that the individuals require access to funded aged care services and classification types that correspond to the type of care they were receiving under the old Act. This ensures that personal information of individuals will continue to be protected information under the Aged Care Bill. The objectives of the Transitional Bill are therefore consistent with the right to privacy as they ensure continuity of privacy protections for those currently accessing funded aged care services.

Right to work and rights at work

Article 6(1) of the ICESCR protects the right to work, which includes 'the right of everyone to the opportunity to gain [their] living by work which [they] freely [choose or accept]'. The UN Committee on Economic Social and Cultural Rights has stated that the right in article 6(1) includes the right not to be unjustly deprived of work, and that this includes security against unfair dismissal. Under article 4 of the ICESCR, limitations to the right to work are permitted in so far as they are compatible with the nature of the right and 'solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportionate and the least restrictive alternative where several types of limitations are available.

The Transitional Bill limits the right to work for aged care workers and responsible persons of registered providers of funded aged care services as part of the consequential amendments implementing criminal history checks for a person seeking to work or already working as an aged care worker or responsible person. The amendment seeks to allow the disclosure of a person's criminal history when being assessed for employment or continued employment by a registered provider of funded aged care services. The assessment is undertaken to assess whether there is a risk to the safety of an individual accessing funded aged care services if the person were to be employed or continue to be employed by a registered provider. The provision prescribes persons and bodies with exemptions to Divisions 2 and 3 of Part VIIC of the Crimes Act which would otherwise prevent the disclosure and taking into consideration of pardons for persons wrongly convicted, quashed convictions and spent convictions. The provision provides safeguards such that before the Governor-General makes a regulation prescribing a person or body, the Minister must be satisfied that the person or body:

•

is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with an individual accessing funded aged care services, and

•

complies with applicable Commonwealth, State law or Territory law relating to human rights and records management; and

•

complies with the principles of natural justice; and

•

has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of an individual accessing funded aged care services.

In line with National Disability Insurance Scheme (NDIS) worker screening, certain offences, such as child-pornography related offences or serious assault against a child or vulnerable person, will result in an automatic exclusion if the person was 18 years old or above at the time of the offence. However, safeguards will be in place through a risk-based approach that will provide state and territory worker screening assessors with a framework for considering a person's criminal history and patterns of behaviour over time that would indicate potential future risk to individuals accessing funded aged care services. Worker screening assessors will undertake a rigorous process to determine the relevance of a particular event to whether an applicant poses a risk to individuals accessing funded aged care services. Worker screening assessors will consider:

•

character references; and

•

references from previous employers; and

•

the nature, gravity and circumstances of the event and how it contributes to a pattern of behaviour that may be relevant to aged care related services such as personal care; and

•

the length of time that has passed since the event occurred; and

•

the vulnerability of the victim at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event; and

•

the person's criminal, misconduct and disciplinary, or other relevant history, including whether there is a pattern of concerning behaviour; and

•

the person's conduct since the event; and

•

all other relevant circumstances in respect of their offending, misconduct or other relevant history, including attitudes towards offence or misconduct, and the impact on their eligibility to be engaged in relevant aged care related services.

These safeguards ensure that the process is fair and respects individuals' rights. They aim to balance the need for safety and the protection of vulnerable people accessing funded aged care services, with an individual's right to work. The more complete the information about patterns of behaviour, the more accurate the assessment of risk. Even offences that are minor, not violent or sexual in nature, are not directly related to aged care worker employment or happen some time ago, contribute to an assessment of risk.

In relation to the issue of access to information on spent, quashed and pardoned convictions, criminal history, including spent, quashed or pardoned convictions, are a key indicator of past patterns of behaviour. Ensuring that state and territory worker screening assessors are provided with a complete picture of a person's criminal history information will ensure that the risk assessment process is as accurate and well-informed as possible. This will not be known until the specific circumstances surrounding the pardoned or quashed conviction are considered by the worker screening assessors, which is why they need access to such information as proposed in the Bill.

Including quashed and pardoned convictions provides a more complete picture of a person's history and contributes to a more accurate risk assessment. An accurate assessment benefits both people accessing funded aged care services and the person being screened. Such an assessment would be rigorous and consider the circumstances surrounding this history to determine its relevant to the overall risk assessment.

Limiting the right to work for a person seeking to work or already working as an aged care worker or responsible person by permitting prescribed persons or bodies to access detailed criminal history information is considered reasonable and proportionate to achieve the lawful objective of promoting the general welfare of individuals accessing funded aged care services. Persons employed in the delivery of funded aged care services are in a position of trust and in many cases will have access to the personal property, finances and medication of the individuals under their care. Criminal history is just one of a multitude of factors being taken into account for the purposes of screening workers, and the circumstances around pardoned, quashed and spent convictions may be relevant to the broader assessment of a person's suitability to work with an individual accessing funded aged care services.

The Transitional Bill also places reasonable limits on the right to work by transitioning banning orders and associated notices and applications that are active under the old law at the transition time. Part 5 of Schedule 2 to the Transitional Bill provides that banning orders in force at the transition time, active notices of intention to make banning orders and pending applications for variations or revocations of banning orders will be taken to have the same effect under equivalent provisions in the Aged Care Bill. It also provides for expired banning orders to be included on the Provider Register and the register of banning orders under the Aged Care Bill, ensuring that information about historical banning orders will continue to be available. These powers are reasonable and proportionate to achieve the lawful objective of promoting the general welfare of individuals accessing funded aged care services and are therefore consistent with the right to work and rights at work.

Right to access information

The right to access information is contained in article 19(2) of the ICCPR, which provides that everyone has the right to freedom of expression and that right includes the freedom to seek and receive information of all kinds, either orally or in writing. Article 21 of the CRPD provides a similar right for persons with disabilities, in that appropriate measures should be taken to ensure people with disabilities can exercise their right to freedom of expression and opinion, including being provided with information in accessible formats, in a timely manner, without additional cost.

The Transitional Bill promotes the right to access information through the consequential amendments to the Freedom of Information Act 1982 which will remove the exemption to access information under the old Act and the Commission Act. This means that a person will have a legally enforceable right of access to a document of an agency or an official document of a Minister under the old Act and Commission Act. This is consistent with the right for everyone to receive information in relation to the aged care system.

Conclusion

The Transitional Bill is consistent with human rights as it provides transitional arrangements for current individuals accessing aged care services under the old Act and the CHSP and NATSIFAC programs to transition to the new aged care system under the Aged Care Bill and provides transitional arrangements for approved providers of aged care to be deemed registered providers under the Aged Care Bill.

The Transitional Bill promotes human rights, including the right to the highest attainable standard of health and the right to access information. While the Bill limits the right to privacy and the right to work, it does so in pursuit of the permissible legitimate objectives of the Transitional Bill, in a way that is reasonable, necessary and proportionate in the particular circumstances to achieving those objectives.

NOTES ON CLAUSES

Abbreviations and Acronyms used in this explanatory memorandum

In this Explanatory Memorandum, the following abbreviations are used:

Clause 1 - Short title

Clause 1 provides for the short title of the Act to be enacted by the Transitional Bill to be the Aged Care (Consequential and Transitional Provisions) Act 2024.

Clause 2 - Commencement

Clause 2 provides for the commencement of each provision in the Transitional Bill as set out in the table at subclause 2(1). Table item 1 provides that clauses 1-4 of the Transitional Bill commence on the day the Transitional Bill receives the Royal Assent. Table item 2 provides that Schedules 1-3 of the Transitional Bill will commence at the same time as the new Act. However, the provisions do not commence at all if the new Act does not commence. The note to subclause 2(1) clarifies that the table relates only to the provisions of the Transitional Bill as originally enacted, and will not be amended to deal with any later amendments of the Transitional Bill.

Subclause 2(2) clarifies that any information in column 3 of the table is not part of the Transitional Bill, and that information may be inserted in this column, or information in it may be edited, in any published version of the Transitional Bill.

Clause 3 - Schedules

Clause 3 provides that legislation specified in a Schedule to the Transitional Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to the Transitional Bill has effect according to its terms. This is a technical provision that gives operational effect to the amendments contained in each of the Schedules to this legislation.

Clause 4 - References to the Aged Care Act 1997 etc.

Clause 4 updates references to the old law in legislation in force at the time that the new Act commences to appropriate, equivalent or near equivalent references. This clause ensures that any legislation which makes references to the old law which is not yet amended can still operate as intended, subject to contrary intention.

Subclause 4(1) outlines that subclause 4(2) applies to references to the old Act or provisions of that Act, the Commission Act or provisions of that Act, and the old Transitional Provisions Act or provisions of that Act made within another Act at the transition time.

Subclause 4(2) provides that after commencement of the new Act any reference made to an Act or provision of an Act identified in subclause 4(1) is to be taken to be a reference to the new Act or the equivalent provisions of the new Act.

Subclause 4(3) provides that subclause 4(2) is subject to a contrary intention.

Subclause 4(4) outlines that this subclause 4(5) applies where, at the transition time, another Act refers to principles made under section 96-1 of the Aged Care Act 1997 or a provision of those principles.

Subclause 4(5) provides that after commencement of the new Act any reference made to a principle or provision of a principle identified in subclause 4(4) is taken to be a reference to the rules within the meaning of the new Act or an equivalent, or nearly equivalent, provision of those rules (as the case requires).

Subclause (6) provides that subsection (5) is subject to a contrary intention.

SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS

Schedule 1 amends the following Acts:

•

Crimes Act

•

FOI Act

•

NDIS Act

Crimes Act 1914

This Part protects individuals accessing funded aged care services from harm by permitting criminal history information to be disclosed and taken into account in assessing whether a person who works, or seeks to work, with an individual accessing funded aged care services poses a risk to that individual.

Clause 1 inserts new Subdivision AB to Division 6 of Part VIIC of the Crimes Act. New clause 85ZZGO sets out the object of the subdivision which relates to exclusions to Divisions 2 and 3 for the purpose of work with individuals accessing funded aged care services from harm, as outlined above.

New clauses 85ZZGP, 85ZZGQ and 85ZZGR provide prescribed persons and bodies with exemptions to Divisions 2 and 3 of Part VIIC of the Crimes Act, which would otherwise prevent the disclosure and consideration of pardons for persons wrongly convicted, quashed convictions and spent convictions.

These provisions will allow agencies such as the Australian Criminal Intelligence Commission and the Australian Federal Police to disclose this criminal history information to a prescribed person or body that is required, or permitted by or under a prescribed Commonwealth, State or Territory law to obtain and deal with information about persons who work, or seek to work, with individual accessing funded aged care services.

Each State and Territory has established a Worker Screening Unit that is prescribed to undertake employment screening in relation to work with a person with disability. It is proposed that the same Worker Screening Unit will be prescribed to obtain and deal with information about persons who work, or seek to work, with individuals accessing funded aged care services. This will support regulatory alignment across both sectors and reduce the ability for a person who has been found to pose a risk of harm to then seek employment in the other sector.

New clause 85ZZGS provides that, before the Governor-General makes a regulation prescribing a person or body for the purposes of new clauses 85ZZGP, 85ZZGQ and 85ZZGR the Minister must be satisfied that the person or body:

•

is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with an individual accessing funded aged care services; and

•

complies with applicable Commonwealth law, State law or Territory law relating to privacy, human rights and records management; and

•

complies with the principles of natural justice; and

•

has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of an individual accessing funded aged care services.

The Minister responsible for this purpose will be the Attorney-General.

This proposed amendment aligns with equivalent existing provisions in subdivisions A and AA of Division 6 of Part VIIC of the Crimes Act that provide similar exemptions to Divisions 2 and 3 for the purposes of assessing persons who work, or seek to work, with children and persons with disability. The proposed amendment recognises that aged care workers are in a position of trust and supports harmonisation of the approach to criminal history disclosures across the care sector.

Freedom of Information Act 1982

In response to Royal Commission recommendation 88, clause 2 omits references to the old Act and the Commission Act in Schedule 3 to the FOI Act. This ensures that the exemption in section 38 of the FOI Act, which prevents the public disclosure of documents covered by secrecy provisions, will no longer apply to the old Act and the Commission Act. Existing provisions within the FOI Act will continue to provide protection to personal information and business affairs.

National Disability Insurance Scheme Act 2013

The following clauses are to be read in conjunction with Part 9 of Schedule 2 to the Transitional Bill as they operate together to give effect to these provisions.

Clause 3

Clause 3 amends section 9 of the NDIS Act to insert definitions for aged care clearance decision, aged care exclusion decision, aged care worker screening check, aged care worker screening law, funded aged care service and registered aged care provider, which are all defined to have the same meaning as in the new Act.

Clauses 4, 5, 6

Clauses 4, 5 and 6 amend subparagraph 67A(1)(da)(i), subparagraph 67A(1)(da)(ii), and paragraph 67A(1)(da) of the NDIS Act to provide for a person to make a record of protected NDIS Quality and Safeguards Commission information, disclose such information to any person or otherwise use such information if:

•

the disclosure is to a State or Territory, or to an authority of a State or Territory, for the purposes of:

o

carrying out of an aged care worker screening check;

o

any other purpose of an aged care worker screening law; or

•

the disclosure or use of the information by the person to a person or body, for the purposes of complying with the worker screening requirements prescribed by rules made under the new Act.

Clause 7

Clause 7 amends paragraph 181Y(3)(c) of the NDIS Act to provide for additional purposes for the NDIS worker screening database to share information in the database with:

•

persons or bodies (including employers and potential employers) for the purposes of the NDIS; or

•

the Commissioner of the Aged Care Quality and Safety Commission for the purposes of assisting them to perform their functions or exercise their powers; or

•

registered aged care providers that are employers or potential employers of persons; or

•

persons or bodies for the purposes of those persons or bodies facilitating the employment, engagement or training of other persons to work with individuals accessing funded aged care services.

This provision is intended to ensure information sharing arrangements in relation to NDIS workers who may also work, or seek to work, with individuals accessing funded aged care services. This will create regulatory alignment on worker screening for the NDIS and aged care sectors. This is also particularly important for protecting NDIS participants in circumstances where an aged care worker is found to pose a risk of harm and has been issued an aged care exclusion decision. This regulatory alignment aims to minimise the risk of harm to both NDIS participants and individuals accessing funded aged care services.

Clause 8

Clause 8 inserts new subsection 181Y(6A) into the NDIS Act and provides that the NDIS worker screening database may also include:

•

information relating to persons (each of whom is a screening applicant) who:

o

have made applications (each of which is a screening application) for an aged care worker screening check; and

o

are identified (in screening applications or otherwise) as seeking to work with people with disability and information relating to those applications

•

information relating to each screening applicant in respect of whom a screening application is no longer being considered and the reasons for this;

•

information relating to each screening applicant in respect of whom a decision (a clearance decision) (however described) is in force, under an aged care worker screening law, to the effect that the person, in working, or seeking to work, with individuals accessing funded aged care services does not pose a risk to such individuals and information relating to the decision;

•

information relating to any decisions made under an aged care worker screening law, in relation to each screening applicant, while the screening applicant's application is pending;

•

information relating to each screening applicant in respect of whom a decision (an exclusion decision) (however described) is in force, under an aged care worker screening law, to the effect that the person, in working, or seeking to work, with individuals accessing funded aged care services does pose a risk to such individuals and information relating to the decision;

•

if a clearance decision or an exclusion decision specifies the period for which the decision is in force - information setting out that period;

•

information relating to each person in respect of whom a decision (however described), under an aged care worker screening law, suspending a clearance decision has been made and information relating to the suspension;

•

information relating to each person in respect of whom a decision (however described), under an aged care worker screening law, revoking a clearance decision or an exclusion decision has been made and information relating to the revocation;

•

information relating to employees or potential employers of persons who have made screening applications.

This provision expands the functions of the NDIS worker screening database to support information sharing arrangements for providers and workers that operate in both the NDIS and aged care sectors. This supports regulatory alignment by reducing administrative requirements on worker screening for providers and workers that operate in both the NDIS and aged care sectors.

Clause 9

Clause 9 provides for the insertion of paragraphs 6A(a) to (i) after paragraph 181Y(7), to allow for the sharing of information which includes personal information.

Examples of personal information which may be contained in the database include information relating to the identity of persons who have made an application or had a decision about them made under an aged care worker screening law. This may include: name, date of birth, age, place of birth, address, telephone number and email address.

This information is intended to promote the accuracy, integrity and effectiveness of the database by ensuring that the information about decisions made under an aged care worker screening law relate to the correct person.

Clause 10

Clause 10 inserts new sections 181Z and 181ZA to provide that:

•

an aged care clearance decision in respect of a person working or seeking to work with individuals accessing funded aged care services is to be taken to be an NDIS clearance decision in respect of a person in working or seeking to work with people with disability; and

•

an aged care exclusion decision in respect of a person working or seeking to work with individuals accessing funded aged care services is to be taken to be an NDIS exclusion decision in respect of a person in working or seeking to work with people with disability.

This provision provides for the recognition of an aged care clearance decision or aged care exclusion decision for the purposes of an NDIS clearance decision or an NDIS exclusion decision. An aged care clearance decision which is in force, under an aged care worker screening law, in respect to a person working, or seeking to work with NDIS participants is taken to be a clearance decision in force under an NDIS worker screening law. Similarly, an aged care exclusion decision which is in force, under an aged care worker screening law, in respect to a person working, or seeking to work with NDIS participants is taken to be an exclusion decision in force under an NDIS worker screening law. This will enable aged care workers who received an aged care clearance decision following an aged care worker screening check to work in risk-assessed roles within the NDIS sector without the need to undertake additional screening.

SCHEDULE 2 - APPLICATION, SAVING AND TRANSITIONAL PROVISIONS

Part 1 - Preliminary

Clause 1 - Definitions

Clause 1 contains definitions that are used in the Transitional Bill.

Commission Act is defined to mean the Aged Care Quality and Safety Commission Act 2018.

Commission Rules is defined to mean the Aged Care Quality and Safety Commission Rules 2018.

new Act is defined to mean the Aged Care Act 2024.

old Act is defined to mean the Aged Care Act 1997.

old law is defined to mean any of the following laws:

•

the old Act;

•

the Commission Act;

•

the old Transitional Provisions Act;

•

the old Principles;

•

the Commission Rules;

•

the old Transitional Provisions Principles.

old Principles is defined to mean Principles made under section 96-1 of the old Act.

old Transitional Provisions Act is defined to mean the Aged Care (Transitional Provisions) Act 1997.

old Transitional Provisions Principles means Principles made under section 96-1 of the old Transitional Provisions Act.

transition rules is defined to mean the rules made under clause 65.

transition time is defined to mean the time the new Act commences.

Subclause 1(2) provides that where an expression is used in a provision of this Schedule and in the new Act, it is to be taken to have the same meaning in that provision as it has in the new Act, subject to subclause (3).

Subclause 1(3) provides that where an expression is used in a provision of this Schedule and in the old law, it is taken to have the same meaning in that provision as it had in the old law to the extent that:

•

the use of the expression in that provision relates to an event that occurred, or a state of affairs that existed, under the old law before the transition time; or

•

the provision has the effect that a provision of the old law continues to apply despite the repeal of the old law.

Part 2 - Transitional provisions for Chapter 2 of the new Act

Part 2 provides transitional provisions for Chapter 2 of the new Act, that is for the transition of existing approvals under the old Act or eligibility under agreements with the Commonwealth for older persons to access aged care. The manner in which these matters are transitioned reflects the change in the constitutional support for the Commonwealth's governance and funding of the aged care system which shifts from a provider centric model to one which reflects that care recipients and their needs form the central aspect of this system.

The provisions in this part reflect the significant Constitutional shift from the old Act, which primarily engaged the corporations power in section 51(xx) of the Constitution, to the new Act, which engages the sickness and hospital benefits aspect of the social welfare power in section 51(xxiiiA), the external affairs power in section 51(xxix) and the races powers in section 51(xxvi) of the Constitution.

Under the old Act, people could be approved for residential care, home care or flexible care under section 22-1 if they were found eligible for that kind of care. To be eligible for care, a person must have physical, medical, social or psychological needs that require the provision of care, those needs can be met appropriately with that kind of care, and the person met any other requirements as prescribed in the Approval of Care Recipients Principles 2014.

People could be eligible for CHSP or NATSIFAC services if they met the requirements outlined in the respective program manuals.

Paragraph 65(2)(a) of the new Act provides that if the System Governor decides that an individual requires access to funded aged care services under subsection 65(1) of that Act, the System Governor must decide whether to approve one or more service groups for the individual, including the classification types for the service group. This requirement applies to all four service groups for any funded aged care services, being:

•

home support;

•

residential care;

•

assistive technology; and

•

home modifications.

Access approvals under the new Act are drafted to engage specific Constitutional heads of power (noted above).

The transition of individuals from existing non-residential care programs to Support at Home is where the change in the constitutional basis of the new Act most affects the way that individuals will be approved for funded aged care services. An individual, in order to be approved to access funded aged care services, will need to be assessed as experiencing an impairment which results in barriers to their full participation in society. Services are then approved for the individual on the basis of their individual needs in order to help the individual overcome these barriers.

The following clauses provide the powers needed to ensure that individuals can move as seamlessly as possible from the old Act, CHSP and NATSIFAC to the new Act.

Clause 2 - Access approvals for service groups home support, assistive technology and home modifications

Clause 2 provides for the approval of individuals for the service groups home support, assistive technology and home modifications.

Access approvals and related decisions

Subclause 2(1) provides for the decisions that the System Governor is taken to have made at the transition time, in relation to an individual to whom subclause 2(2) - which establishes transitional cohorts by defined characteristics to enable transition of existing eligibility for care delivered in a home or community setting - applies:

•

an eligibility determination under subsection 57(1) of the new Act;

•

a decision under subsection 65(1) of the new Act that the individual requires access to funded aged care services;

•

for an individual referred to in paragraph 2(2)(a) or (e), a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:

o

the classification type ongoing for the service group home support;

o

the classification type short-term for the service group assistive technology;

o

the classification type short-term for the service group home modifications;

•

for an individual referred to in paragraph 2(2)(b), a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:

o

the classification type short-term for the service group home support;

o

the classification type short term for the service group assistive technology;

o

the classification type short term for the service group home modifications;

•

for an individual referred to in paragraph 2(2)(c), a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:

o

the classification type hospital transition for the service group home support;

o

the classification type hospital transition for the service group assistive technology;

•

for an individual referred to in paragraph 2(2)(d) or (f), a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:

o

the classification types ongoing and short-term for the service group home support;

o

the classification type short-term for the service group assistive technology;

o

the classification type short-term for the service group home modifications;

•

for an individual referred to in paragraph 2(2)(g) - a decision under paragraph 65(2)(a) of the new Act that the individual is approved for each service group and each classification type for that service group specified by the determination;

•

for an individual referred to in any paragraph in subclause 2(2) and who is not an Aboriginal or Torres Strait Islander person:

o

a decision under subparagraph 65(2)(b)(i) of the new Act that the individual is approved for all service types in each of those service groups;

o

a decision under subparagraph 65(2)(b)(ii) of the new Act that the individual is approved for all funded aged care services in a service type to which that subparagraph applies.

Individuals to whom transition applies

Subclause 2(2) establishes transitional cohorts by defined characteristics to enable transition of existing eligibility for care to be reflected as approvals to access care under the new Act. Specifically, it provides that this subclause applies to the individual where, as at immediately before the transition time, the individual:

•

was approved under section 22-1 of the old Act as a recipient of home care; or

•

was approved under section 22-1 of the old Act as a recipient of flexible care in the form of short-term restorative care (within the meaning of the old Principles); or

•

was approved under section 22-1 of the old Act as a recipient of flexible care in the form of transition care (within the meaning of the old Principles); or

•

either:

o

was accessing care provided in a community setting through a multi-purpose service (within the meaning of the old Principles); or

o

was party to a written agreement with an approved provider (within the meaning of the old Act) of a multi-purpose service (within the meaning of the old Principles) which provides for the individual to commence accessing care provided in a community setting through that service within the period of 3 months beginning at the transition time; or

•

has been assessed as eligible for CHSP services; or

•

had, at any time in the period of 12 months ending at the transition time, accessed services under the NATSIFAC Program; or

•

was in a class of individuals determined under subclause 2(3) by the System Governor to be a transitional cohort.

Subclause 2(3) provides that the System Governor may, by legislative instrument, determine a class of individuals to be a transitional cohort for the purposes of paragraph 2(2)(g) if:

•

the individuals in that class were eligible to access aged care (whether under the old Act or under a Commonwealth program) at any time in the 12-month period ending at the transition time; and

•

the System Governor considers it reasonably necessary to make the determination to ensure continuity of aged care for those individuals.

While it is anticipated that the transitional cohorts identified in paragraphs 2(2)(a) through (f) identify all individuals whose access to care is to be maintained across the transition time, this residual power ensures that the System Governor is empowered to provide for any transitional cohort of individuals who, for unforeseen reasons, would otherwise become ineligible to continue to access aged care services where eligible to do so under the Commonwealth's existing aged care framework.

Subclause 2(4) provides that a determination made under subclause 2(3) may be made after the transition time.

Limitation on funded aged care services to which transition applies for individuals eligible for Commonwealth Home Support Programme

Subclause 2(5) caveats that subparagraph 2(1)(h)(i) does not apply in relation to an individual to whom paragraph 2(2)(e) applies and a service type referred to in that subparagraph unless the individual had been assessed as eligible under CHSP for a service type that corresponds as nearly as possible to a service type under the new Act. This serves to limit approvals under the new Act for individuals accessing services under CHSP at the transition time to extend only to comparable service types on transition.

Limitations on funded aged care services to which transition applies for individuals who are not Aboriginal or Torres Strait Islander persons

Subclause 2(6) ensures that the approval of individuals to access funded aged care services at transition time aligns to the constitutional basis of the new Act. It does this through limiting the operation of subparagraphs 2(1)(h)(i) and (ii) such that it does not apply in relation to an individual who is not an Aboriginal or Torres Strait Islander person and a service type or funded aged care service referred to in that subparagraph unless:

•

the individual has a long-term physical, mental, sensory or intellectual impairment and the impairment may hinder the individual's participation in society on an equal basis with others as a result of the impairment's interaction with various barriers; and

•

any of the following apply:

o

each of the funded aged care services in the service type, or the funded aged care service, is an in-home, residential or other community support service and access to the services or service is necessary to support the individual to live and be included in the community, and to prevent their isolation or segregation from the community;

o

access to the funded aged care services in the service type, or the funded aged care service, will facilitate personal mobility of the individual in the matter and at the time of their choice;

o

the funded aged care services in the service type, or the funded aged care service, involve a mobility aid or device, or assistive technology, live assistance or intermediaries that will facilitate personal mobility of the individual;

o

the funded aged care services in the service type, or the funded aged care service, are a health service that the individual needs before of their impairment or because of the interaction of their impairment with various barriers;

o

the funded aged care services in the service type, or the funded aged care service, are a habilitation or rehabilitation service;

o

the funded aged care services in the service type, or the funded aged care service, are a service that will assist the individual to access a service mentioned in subparagraph 2(5)(b)(iv) or (v);

o

the funded aged care services in the service type, or the funded aged care service, will minimise the prospects or prevent the individual from acquiring a further impairment;

o

the funded aged care services in the service type, or the funded aged care service, are a medical service required by the individual because of sickness.

Subclause 2(7) provides that, for the purposes of paragraph 2(6)(a), an impairment may be long term despite the fact it is episodic, fluctuating or varying in intensity over time.

Clause 3 - Access approvals for service group residential care

Clause 3 provides for the approval of individuals for the residential care service group.

Subclause 3(1) provides for the decisions that the System Governor is taken to have made at the transition time, in relation to an individual to whom subclause 3(2) - which establishes transitional cohorts by defined characteristics to enable transition of existing eligibility for care delivered in a residential setting - applies:

•

an eligibility determination under subsection 57(1) of the new Act;

•

a decision under subsection 65(1) of the new Act that the individual requires access to funded aged care services;

•

a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:

o

if paragraph 3(2)(a) applies to the individual-the classification type ongoing for the service group residential care;

o

if paragraph 3(2)(b) applies to the individual-the classification type short-term for the service group residential care;

o

if paragraph 3(2)(c), (e) or (f) applies to the individual-the classification types ongoing and short-term for the service group residential care;

o

if paragraph 3(2)(d) applies to the individual - the classification type hospital transition for the service group residential care.

Subclause 3(2) establishes transitional cohorts by defined characteristics to enable transition of existing eligibility for care to be reflected as approvals to access care under the new Act. Specifically, it provides that this subclause applies to an individual where, as at immediately before the transition time:

•

the individual was approved under section 22-1 of the old Act as a recipient of residential care and that approval did not include a limitation under paragraph 22-2(1)(c) of the old Act, which deals with the provision of respite care; or

•

the individual was approved under section 22-1 of the old Act as a recipient of residential care and that approval included a limitation under paragraph

•

22-2(1)(c) of the old Act, which deals with the provision of respite care; or

•

the individual was approved under section 22-1 of the old Act as a recipient of residential care and the terms of that approval expressly covers the provision of respite care; or

•

the individual was approved under section 22-1 of the old Act as a recipient of residential care and flexible care in the form of transition care (within the meaning of the old Principles); or

•

subclause 3(3) applied in relation to the individual and the individual was:

o

accessing flexible care provided in a residential setting through a multi-purpose service (within the meaning of the old Principles); or

o

party to a written agreement with an approved provider (within the meaning of the old Act) or a multi-purpose service (within the meaning of the old Principles) which provides for the individual to commence accessing flexible care provided in a residential setting through that service within the period of 3 months beginning at the transition time; or

•

the individual had, at any time in the previous 12 months, received services under the NATSIFAC Program.

Subclause 3(3) provides that this subclause applies in relation to the individual if the individual has, by reason of sickness (within the meaning of the new Act), a continuing need for funded aged care services (including nursing services) in the service group.

Clause 4 - Classification levels, priority category and place allocation decisions

Subclause 4(1) provides for the decisions that the System Governor must make by legislative instrument for one or more classes of individuals to whom subclause 2(2) applies:

•

the classification level taken to be established for each of the individuals in the class under subsection 78(1) of the new Act at the transition time for a classification type for a service group that those individuals are taken to be approved for under subclause 2(1);

•

if circumstances specified by the determination apply in relation to the individuals in the class and a classification type for a service group specified by the determination-the priority category that each of those individuals is taken to have been assigned for the classification type for the service group under subsection 86(1) of the new Act at the transition time;

•

if circumstances specified by the determination apply in relation to the individuals in the class and a classification type for a service group specified by the determination-that a place is taken to have been allocated under subsection 92(1) of the new Act at the transition time to each of those individuals for the classification type of the service group.

Subclause 4(2) provides for the decisions that the System Governor must make by legislative instrument for one or more classes of individuals to whom subclause 3(2) applies:

•

the classification level taken to be established for each of the individuals in the class under subsection 78(1) of the new Act at the transition time for a classification type for the service group residential care that those individuals are taken to be approved for under subclause 3(1);

•

if circumstances specified by the determination apply in relation to the individuals in the class and a classification type for the service group residential care specified by the determination-that a place is taken to have been allocated under subsection 92(1) of the new Act at the transition time to each of those individuals for the classification type for the service group.

Part 3 - Transitional provisions for Chapter 3 of the new Act

Division 1 - Provider Registration

The new aged care regulatory model will see a shift from 'approved' providers to 'registered' providers under a new, universal provider registration model. Universal provider registration will mean a single registration across all forms of aged care that an organisation offers and will bring existing grant-funded programs under the new regulatory model. Time-limited provider registration will act as an important periodic safeguarding tool that aims to protect older people from risks of harm by ensuring only providers who can demonstrate their continued suitability and capability to deliver high-quality care and provide support services to older people in their home or residential care home. Provider registration and renewal will move to regulate at the provider level, rather than at the 'service' level, as is currently the case under the old Act.

It is intended that there will be six provider registration categories, with service types based on similar care complexity and risk. This means that registration requirements, the related provider obligations and regulatory oversight will be proportionate to the registration categories and service being delivered.

Under the new Act, only registered providers can deliver funded aged care services. Therefore, all current active approved providers must become registered providers under the new Act to ensure continuity of services for older people. This Part will facilitate the automatic transition of current Commonwealth-funded providers, including approved providers and those funded through CHSP and NATSIFAC, to registered providers under the new model, without the need for any administrative process prior to the new Act commencing, through a process called deeming. Through the deeming process, the department will move providers to the new registration categories based on the current services they deliver or in line with the services their funding agreement requires at the time of deeming. Deeming allows for a planned, orderly transition between regulatory frameworks that will maintain the continuity of service, ensuring all older people receiving care experience no interruption in the aged care services on which they rely.

On and from transition day, all providers will be registered and then monitored by the Commission under the new regulatory model. All deemed registered providers will be allocated a renewal date that marks the end of their registration period. These renewal dates will be staggered after the new Act commences to allow the orderly management of registration renewals across an estimated more than 2,000 providers. The Commission will advise the department on the setting of the registration renewal date and take matters such as risk, regulatory intelligence, workforce management and recency of audits or contacts into consideration.

Where existing regulatory activities, such as applications, notifications or compliance and enforcement actions that are not completed prior to the transition day, and have an equivalent provision in the new Act, the general policy intent is to allow the activity to be continued or reflected.

Clause 5 - Registration of entities

In response to Royal Commission recommendation 92, clause 5 provides for the process to deem an approved provider under the old Act to be a registered provider under the new Act.

Deeming of registered entities

Subclause 5(1) provides for the deeming of registered providers at the transition time. This subclause will apply to an entity that immediately before commencement is either an approved provider within the meaning of section 7 of the Commission Act or the holder of an approval under section 63D of the Commission Act that is suspended under section 63N of that Act. The applicable entities will be taken to be registered as a registered provider under paragraph 105(1)(a) of the new Act.

Subclause 5(2) provides that subclause 5(1) does not apply to an entity where the System Governor has made a determination under subclause 5(14) that the entity is an inactive provider due to not having claimed subsidy (within the meaning of the old Act) before the transition time, for a period of time that the System Governor considers significant. This will provide a mechanism for the System Governor to determine that certain approved providers should not be transitioned to the new Act unnecessarily due to them no longer being active in the aged care system.

Registration period

In response to the Royal Commission identifying significant issues with the existing provider approval process under the old law, including that approved providers are not required to have their suitability re-tested at any stage, section 115 of the new Act ensures that registration periods are time limited with reviews on a regular basis.

Subclause 5(3) provides for entities covered under subclause 5(1) to have their registration deemed for a specified period in accordance with section 115 of the new Act. The registration period will be taken to be the period determined by the System Governor (in accordance with any determination made under subclause 5(14) to be appropriate for the provider. The period will be no less than 3 months and no more than 3 years and 3 months. This provides a mechanism for the System Governor to determine an appropriate transitional registration period only, and any subsequent registration and corresponding registration period will be determined by the Commissioner in the ordinary course of considering the renewal of providers registration as provided for in the Bill and in accordance with the Commissioner's functions.

Subclause 5(4) provides that the System Governor must seek the advice of the Commissioner and take this advice into account before making a determination under subclause 5(3). Advice from the Commissioner will inform the System Governor's determination of an appropriate registration period for providers.

Subclause 5(5) provides that the Commissioner, in providing advice to the System Governor for the purposes of subclause 5(4), must have regard to the recency of any audits conducted under the Commission Act in relation to the entity and the desirability of ensuring a smooth sequence of audits under section 110 of the new Act.

Registration categories

Subclause 5(6) provides for entities covered under subclause 5(1) to be registered into registration categories determined by the System Governor (in accordance with any determination made under subclause 5(14)) to be appropriate for the entity having regard to the following:

•

the general need for continued delivery of funded aged care services to individuals that correspond as nearly as possible to the types of aged care provided to individuals under the old Act and the services provided under agreements between aged care providers and the Commonwealth;

•

any types of aged care the entity was, immediately before the transition time, approved to provide under section 63D of the Commission Act or under an agreement with the Commonwealth;

•

any services covered in an agreement between the entity and the Commonwealth that was in effect immediately before the transition time;

•

any types of aged care or services the entity had actually provided to individuals in the period of 12 months ending on the transition time.

Residential care homes and service delivery branches

Subclause 5(7) provides for places at which entities covered under subclause 5(1) for the purposes of the new Act provided residential care services, flexible care services and multi-purpose services at the transition time to be deemed to be an approved residential care home for the purposes of the new Act.

The subclause provides that each of the following places is taken by the System Governor, having regard to any rules made for the purposes of subsection 10(5) of the new Act and in accordance with any determination under subclause 5(10), to be, or be part of, an approved residential care home in relation to the entity for the purposes of paragraph 105(1)(b) and section 112 of the new Act:

•

any place through which the entity provided any of the following immediately before the transition time:

o

a residential care service that meets its accreditation requirements at the transition time;

o

a flexible care service through which the entity provides flexible care in the form of transition care (within the meaning of the old Principles);

•

any place which, as at immediately before the transition time, was covered by an agreement between the entity and the Commonwealth for the entity to provide a flexible care service that is a multi-purpose service (within the meaning of the old Principles).

Subsection 10(5) of the new Act provides for the making of rules regarding the designation of places that are taken to be residential care homes, specifically in relation to circumstances where a place is taken to be 2 or more separate places, and where 2 or more separate places are taken to be a single place.

Subclause 5(8) provides for the establishment of service delivery branches for the purposes of the new Act in relation to existing home care services and flexible care services, such that that each of the following is taken to be a service delivery branch of the registered provider for the purposes of the new Act:

•

any place through which the entity provided any of the following as at immediately before the transition time:

o

a home care service;

o

a flexible care service through which flexible care is provided as either transition care or short-term restorative care (within the meaning of the old Principles).

Subclause 5(9) allows the System Governor to determine how subclause 5(7) applies to different kinds of places, by legislative instrument and having regards to the matters referred to in subclause 5(7).

Subclause 5(10) caveats subclause 5(7) that a place must not be taken to be an approved residential care home unless the System Governor is satisfied that the place, or the places combined, are a residential care home within the meaning of the new Act.

Subclause 5(11) provides that for the purpose of subclause 5(7), the determination of an approved residential care home under that subclause must include a determination of the total number of beds for the home. This aligns with the requirement under paragraph 112(1)(b) of the new Act, which requires the Commissioner to decide the total number of beds to be covered by each approval when deciding whether to approve any residential care home in relation to the entity. In determining that number, the System Governor must have regard to the total number of places allocated under section 14-1 of the old Act to the entity which include a condition under paragraph 14-5(3)(b) of the old Act that the place is allocated in respect of an aged care service referred to in paragraph 5(7)(a) in relation to the residential care home, as well as any other matter the System Governor considers relevant.

Subclause 5(12) provides that the total number of beds for an approved residential care home determined in accordance with subclause 5(11) is taken to be the total number of beds in relation to the approved residential care home for the purposes of paragraph 112(1)(b) of the new Act.

Suspended providers

Subclause 5(13) provides for the transition of providers whose approval is suspended under the old Act at the transition time. It provides that a suspension under section 63N of the Commission Act that is still active as at the transition time is taken to be a suspension by the Commissioner under section 129 of the new Act and is to end at the earlier of:

•

the day that section 63N of the Commission Act specifies it will end (if any); or

•

at the end of 90 days following the transition time.

Determinations by System Governor

Subclause 5(14) provides for the System Governor to determine how subclause 5(2) (inactive providers), subclause 5(3) (registration periods) or subclause 5(6) (registration categories) apply to different kinds of registered providers. It provides that the System Governor may determine by legislative instrument, and with regard to the matters referred to in the relevant provisions, how those provisions apply to different kinds of providers.

Clause 6 - Deemed registered providers

Subclause 6(1) provides that the System Governor may determine, in writing, that an entity is taken to be a registered provider under paragraph 105(1)(a) of the new Act. It is intended that this mechanism will be used to deem providers of the existing grant-funded programs - that is CHSP and NATSIFAC - to become registered providers for the purposes of the new Act at the transition time, as these providers are not required to be approved providers under the old Act and therefore may not be deemed to be registered providers through the operation of clause 5.

Subclause 6(2) provides that the determination must specify the following:

•

the name of the provider; and

•

the reasons for making the determination; and

•

the registration period, being 3 months or such longer period as is specified in the determination; and

•

the day the registration period starts; and

•

each provider registration category; and

•

if it is a residential care provider, each approved residential care home; and

•

the conditions of registration that apply under section 142 of the new Act; and

•

any other matter prescribed in the transitional rules.

Subclause 6(3) provides that the determination must not be made unless the System Governor is satisfied that the determination will ensure that the provision of certain types of care under the old Act, or services delivered under an agreement between the entity and the Commonwealth, may continue as funded aged care services under the new Act that correspond as nearly as possible to those types of care or services, and whether any other requirements prescribed by the transitional rules have been met.

Subclause 6(4) provides that the System Governor must give notice of the determination to the entity and the Commissioner.

Subclause 6(5) provides that the Commissioner must update the details of the entity's registration on the Provider Register as soon as practicable after receiving the notice.

Subclause 6(6) provides that a determination under subclause 6(1) is not a legislative instrument. This means that subclause 6(6) is declaratory of the law and not an actual exemption.

Clause 7 - Deemed approval of residential care homes

Subclause 7(1) provides that, for the purposes of paragraph 6(2)(f) of this Schedule, the System Governor may determine, in writing, that a place, or one or more places, are taken to be approved as a residential care home in relation to a registered provider for the purposes of paragraph 105(1)(b) and section 112 of the new Act.

Subclause 7(2) provides that the determination must specify the following:

•

the name of the provider; and

•

the name and address of the residential care home; and

•

the total number of beds to be covered by the approval; and

•

the reasons for making the determination; and

•

the day on which the approval period starts; and

•

any other matter prescribed by the transitional rules.

Subclause 7(3) provides that the determination must not be made unless the System Governor is satisfied that the place or combination of places meets the definition of a residential care home in section 10 of the new Act, and the registered provider and those places meet any other requirements prescribed by the transitional rules.

Subclause 7(4) provides that the System Governor must give notice of the determination to the registered provider and the Commissioner.

Subclause 7(5) provides that the Commissioner must update the details of the provider's registration on the Provider Register as soon as practicable after receiving the notice.

Subclause 7(6) provides that a determination under subclause 7(1) is not a legislative instrument. This means that subclause 7(6) is declaratory of the law and not an actual exemption.

Clause 8 - Provider Register and information to be provided by registered providers

Clause 8 provides for the necessary information to be collected to allow a registered provider covered under subclause 6(1), to be included on the Provider Register that will be established on commencement of the new Act.

Subclause 8(1) provides that the registered provider must provide the Commissioner a notice specifying the information referred to in subsection 104(3) of the new Act within 6 months of the commencement date. Subsection 104(3) specifies a number of information types that an entity must provide in an application for registration, including information about provider registration categories, service groups, intended service types and responsible persons. Subclause 8(1) will ensure that the Commissioner is provided with all relevant information about deemed registered providers to be included on the Provider Register and made available to the public.

Subclause 8(2) caveats that subclause 8(1) does not apply if the registered provider makes an application to renew their registration under subsection 107(1) of the new Act before the end of the 6-month period.

Subclause 8(3) provides that subsection 141(3) of the new Act (which provides for the information the Provider Register must include in relation to the registration of a registered provider) does not apply to the registered provider referred to in subclause 8(1) for the 6-month period, apart from paragraphs 141(3)(a), (f) and (e) and subsections 141(4), (5) and (6). This is because paragraphs 141(3)(a), (f) and (e) specify key information about a provider, being the name of the provider, their registration period and the provider registration categories they are registered in. Subsections 141(4), (5) and (6) deal with information about entities who were registered providers and information about aged care workers and responsible persons who currently have, or used to have, a banning order in force against them.

Clause 9 - Pending applications for approval as a provider

Clause 9 provides for transition of pending applications for approval as a provider of aged care commenced under the old law.

Subclause 9(1) provides that where an application for approval as a provider of aged care is made under section 63B of the Commission Act and the Commissioner had not made a decision before the transition time, it will be taken to be an application for registration made by the person in accordance with section 104 of the new Act.

Subclause 9(2) provides that a request made under subsection 63C(1) of the Commission Act for further information in relation to an application for approval for which the period in which to respond has not ended at the transition time will be taken to be a request under subsection 588(1) of the new Act. It further provides that the period within which any such further information is required taken to be the period specified in the notice given in accordance with section 63C of the Commission Act, and the period within which a decision on the application must be made is taken to be the period within which a decision was required under subsection 63D(1) of the Commission Act.

Clause 10 - Revocations of provider approvals

Clause 10 provides for transition of pending revocations of provider approvals commenced under the old law.

Pending notices of revocation of approval

Subclause 10(1) provides that where the Commissioner had given a notice of revocation in accordance with section 63K of the Commission Act and had not made a decision before the transition time, the notice will be taken to be a notice given in accordance with section 132 of the new Act (being a notice of possible suspension or revocation of registration).

Subclause 10(2) provides that, for the purposes of subclause 10(1), the period in which submissions can be made in relation to the matter will be taken to be the period in which the person was permitted to make submissions about the matter in accordance with paragraph 63K(2)(b) of the Commission Act.

Pending requests for revocation of approval

Subclause 10(3) provides that where an approved provider had made a request for revocation of their approval to the Commissioner in accordance with section 63H of the Commission Act and the Commissioner had not made a decision before the transition time, the request will be taken to be a request given in accordance with subsection 131(3) of the new Act.

Pending revocations of approval on request by provider

Subclause 10(4) provides that where the Commissioner had revoked the approval of an entity as a provider at their request under subsection 63H(3) of the Commission Act but that revocation had not taken affect before the transition time, the Commissioner is taken to have revoked the approval of the entity as a registered provider under subsection 131(3) of the new Act.

Subclause 10(5) provides that where notice of a revocation decision referred in subclause 10(4) had been given under subsection 63H(4) of the Commission Act, the notice is taken to be a notice given under subsection 135(1) of the new Act, with the same revocation day.

Pending revocations of approval on initiative of Commissioner

Subclause 10(6) provides that where the Commissioner had revoked the approval of an entity as a provider under subsection 63J(1) or (2) of the Commission Act and the revocation had not taken effect before the transition time, the Commissioner is taken to have revoked the approval of the entity as a registered provider under subsection 131(1) of the new Act.

Subclause 10(7) provides that where notice of a revocation decision referred in subclause 10(6) had been given under subsection 63L(2) of the Commission Act, the notice is taken to be a notice given under subsection 134(4) of the new Act, with the same revocation day.

Notices about revocation sanctions

Subclause 10(8) provides that where an entity is deemed to be a registered provider according to subclause 5(1) of this Schedule, and the entity received a non-compliance notice notifying the entity that the Commissioner is considering imposing a sanction revoking the approval of the entity as a provider and the period for making submissions in relation to the notice had not expired before the transition time, the notice is taken to be a notice given under subsection 132(1) of the new Act (being a notice of possible suspension or revocation of registration).

Subclause 10(9) provides that, for the purposes of subclause 10(8), the period within which the entity may make submissions in relation to the matter for the purposes of paragraph 132(2)(b) of the new Act is taken to be the period within which submissions were permitted under paragraph 63S(3)(e) of the Commission Act.

Revocation sanctions that have not come into effect

Subclause 10(10) provides that where an entity is deemed to be a registered provider according to subclause 5(1) of this Schedule, the entity has had a sanction imposed under section 63N of the Commission Act revoking its approval as a provider and the day specified for the purposes of paragraph 63N(5)(f) of the Commission Act in relation to the sanction is on or after the transition time, the notice is taken to be a notice of revocation given to the entity in accordance with section 134 of the new Act that specifies as the revocation day the day that was specified for the purposes of paragraph 63N(5)(f) of the Commission Act.

Clause 11 - Suspensions of provider approvals

Clause 11 provides for transition of suspensions of provider approvals under the old law.

Notices about suspension sanctions

Subclause 11(1) provides that where an entity is deemed to be a registered provider according to subclause 5(1), the entity received a non-compliance notice notifying them that the Commissioner is considering imposing a sanction suspending the approval of the entity as a provider and the period for making submissions in relation to the notice had not expired before the transition time, the notice is taken to be a notice given under subsection 132(1) of the new Act.

Subclause 11(2) provides that, for the purposes of subclause 11(1), the period within which the entity may make submissions in relation to the matter for the purposes of paragraph 132(2)(b) of the new Act is taken to be the period within which submissions were permitted under paragraph 63S(3)(e) of the Commission Act.

Pending requests for lifting of suspension sanctions

Subclause 11(3) outlines that subclause 11(4) applies where an entity is deemed to be a registered provider according to subclause 5(1), the registration of the entity is considered to have been suspended according to subclause 5(13), the entity had made an application under subsection 63V(1) of the Commission Act for the lifting of the suspension sanction under section 63N of that Act, and the Commissioner had not made a decision on the application before the transition time.

Subclause 11(4) provides that the application referred to in subclause 11(3) will be taken, after the transition time, to be a request made in accordance with section 559 of the new Act for reconsideration of the decision of the Commissioner to suspend registration under section 129 of the new Act.

Subclause 11(5) provides that, for the purposes of subclause 11(4):

•

any request for further information in relation to the application made under subsection 63W(1) of the Commission Act, where the period for providing the further information is still active at the transition time, it will be taken to be a request made under subsection 558(1) of the new Act; and

•

the period within which any such further information is required to be given under subsection 588(2) of the new Act is taken to be the period referred to in the previous paragraph of this subclause; and

•

the period within which the decision must be reconsidered for the purposes of paragraph 560(5)(c) of the new Act is taken to be the period within which the decision whether to lift the sanction was required to be made under subsection 63X(1) of the Commission Act.

Division 2 - General information gathering requirements

Clause 12 - Statutory requirement to give documents or information

Subclause 12(1) outlines that this clause applies where an entity was an approved provider under the old Act, was required to give a document or information to the Secretary in relation to a period that had ended before the transition time, and had not complied with the requirement by the transition time.

Subclause 12(2) provides that the requirement continues to apply as if repeal of the old Act had not happened.

Clause 13 - Notice to give documents or information

Subclause 13(1) outlines that this clause applies where an entity was an approved provider under the old Act, had received a written notice from the Secretary under the old Act requiring specified documents or information within a period that had not ended before the transition time, and had not complied with the requirement by the transition time.

Subclause 13(2) provides that the requirement continues to apply as if repeal of the old Act had not happened.

Division 3 - Specific information gathering requirements

Clause 14 - Obligations relating to reporting, notifications and information etc.

Subclause 14(1) provides that, where the period for giving a notification in relation to a change of circumstances that occurs before the transition time had not ended before the transition time and the required notification had not been given, section 9-1 of the old Act continues to apply on and after the transition time to the change of circumstances as if the section had not been repealed.

Subclause 14(2) provides that, where the period for giving a notification pertaining to an event relating to the key personnel of an approved provider that occurs before the transition time had not ended before the transition time and the required notification had not been given, section 9-2A of the old Act continues to apply on and after the transition time to the event as if the section had not been repealed.

Subclause 14(3) provides that, where the period for complying with a request made under section 9-2, 9-3, 9-3A or 9-3B of the old Act before the transition time had not ended before the transition time and the request had not been complied with, these sections of the old Act continue to apply to the request on and after the transition time as if the sections had not been repealed.

Subclause 14(4) provides that, where the period for complying with a notice given to an approved provider under section 63 or 63A of the Commission Rules before the transition time had not ended before the transition time and the notice had not been complied with, these sections of the Commission Rules continue to apply on and after the transition time to the notice as if the sections had not been repealed.

Clause 15 - Agreements relating to considered revocations

Clause 15 provides for the handling of agreements relating to considered revocations.

Subclause 15(1) outlines that subclause 15(2) applies where an entity is deemed to be a registered provider according to subclause 5(1), an agreement referred to in paragraph 63U(2)(a) of the Commission Act was given by that entity and the agreement had not been complied with as at commencement of the new Act.

Subclause 15(2) provides that the agreement referred to in subclause 15(1) will be taken to be an agreement referred to in paragraph 133(2)(a) of the new Act.

Subclause 15(3) outlines that subclause 15(4) applies where an entity is deemed to be a registered provider according to subclause 5(1), a notice was given to the entity under subsection 63U(2) of the Commission Act and the entity had not given the agreement required by the notice before the transition time.

Subclause 15(4) provides that the notice referred to in subclause 15(3) is taken to be a notice given under subsection 133(2) of the new Act.

Clause 16 - Conditions of registration-determinations relating to membership of governing bodies

Clause 16 provides for the transition of determinations or pending applications for determinations made under the old Act.

Determinations in force

Subclause 16(1) provides that a determination made under section 63-1E of the old Act that is in force immediately before the transition time continues to be in force (and may be dealt with) after the transition time as if it were a determination under section 159 of the new Act. Where the determination relates to:

•

an approved provider responsibility set out in paragraph 63-1D(2)(a) of the old Act, it will be taken to be a condition set out in paragraph 157(2)(a) of the new Act; and

•

an approved provider responsibility set out in paragraph 63-1D(2)(b) of the old Act, it will be taken to be a condition set out in paragraph 157(2)(b) of the new Act.

Pending applications for determinations

Subclause 16(2) provides that subclause 16(3) applies in relation to an application for a determination made in accordance with section 63-1E of the old Act if:

•

the application was made before the transition time; and

•

no decision on the application had been made before the transition time.

Subclause 16(3) provides that the application is taken to be an application made in accordance with section 159 of the new Act.

Clause 17 - Conditions of registration-Commission Act sanctions

Clause 17 provides for the transition of sanctions imposed under the Commission Act.

Subclause 17(1) outlines that the clause applies where an entity is deemed to be a registered provider according to subclause 5(1) and a sanction on the entity was imposed under section 63N of the Commission Act of a kind mentioned in paragraph 63R(b) or (c) of the Commission Act which is in effect immediately before the transition time.

Subclause 17(2) provides that the sanction has effect (except for the purposes of section 556 of the new Act) after the transition time as if it were an equivalent condition imposed by the Commissioner under section 143 of the new Act on the registered provider's registration:

•

for a sanction of the kind mentioned in paragraph 63R(b) of the Commission Act-a condition restraining the registered provider from delivering funded aged care services other than through a service delivery branch, or approved residential care home, of the registered provider as at the transition time;

•

for a sanction of the kind mentioned in paragraph 63R(c) of the Commission Act-a condition that the registered provider is not eligible for subsidy in relation to the delivery of funded aged care services to an individual if payment of subsidies under the old Act in relation to the individual was prohibited by the sanction.

Subclause 17(3) outlines, to avoid doubt, that the clause does not limit any other condition to which the registration of the registered provider is subject or the ability of the Commissioner to impose any other condition on the registration of the registered provider under section 143 of the new Act.

Clause 18 - Non-compliance notices

Clause 18 provides for the transition of non-compliance notices issued under the Commission Act.

Subclause 18(1) outlines that the clause applies where an entity is deemed to be a registered provider according to subclause 5(1), a non-compliance notice within the meaning of the Commission Act has been given to the entity, the period for making submissions in relation to that notice had not expired before the transition time, and subclause 10(8) of this Schedule does not apply to the notice.

Subclause 18(2) provides that the notice will be taken to be a notice given to the entity under section 125 of the new Act.

Subclause 18(3) outlines that the notice is taken to invite the making of submissions by the end of the same period for which the making of submissions was invited when the notice was originally issued under the Commission Act.

Clause 19 - Responsible person determinations

Clause 19 provides for the transition of responsible person determinations at the transition time.

Determinations in force

Subclause 19(1) provides that a determination made under subsection 10A-2(1) of the old Act (a determination relating to suitability of key personnel) in relation to an individual that is in force immediately before the transition time continues to be in force (and may be dealt with) after the transition time as if it were a determination made under subsection 170(1) of the new Act in relation to the individual.

Notices of intention to make determination

Subclause 19(2) provides for the transition of notices of intention to make determinations. It provides that subclause 19(3) applies in relation to a notice given in accordance with subsections 10A-2(4) and (5) of the old Act, if:

•

the notice was given before the transition time; and

•

the period referred to in the notice, in accordance with paragraph 10A-2(5)(b) of the old Act, for the making of submissions in relation to the notice had not expired as at the transition time.

Subclause 19(3) provides that the notice is taken to be a notice in relation to the individual given in accordance with subsections 170(4) and (5) of the new Act.

Subclause 19(4) provides that for the avoidance of doubt, the notice is taken to invite, for the purposes of paragraph 170(5)(b) of the new Act, the making of submissions by the end of the same period as the period referred to in paragraph 19(2)(b).

Clause 20 - Notice to complete aged care workforce census

Subclause 20(1) outlines that this clause applies where an entity was an approved provider under the old Act, was required by section 46 of the Accountability Principles 2014 to complete and return an aged care workforce census form to the department by a date that is on or after the transition time, and had not complied with the requirement by the transition time.

Subclause 20(2) provides that the requirement continues to apply as if repeal of the old Act had not happened.

Part 4 - Transitional provisions for Chapter 5 of the new Act

Division 1 - Establishment of the Aged Care Quality and Safety Commission

Clause 21 - Commissioner's report for period ended before transition time

Clause 21 maintains the requirement that the Commissioner prepare the annual report referred to in section 46 of the Public Governance, Performance and Accountability Act 2013 for the preceding reporting period where it had not been prepared before the new Act commences.

Subclause 21(1) outlines that the clause applies only if:

•

the new Act commences after the end of a reporting period for the Commission under the old Act; and

•

the annual report referred to in section 46 of the Public Governance, Performance and Accountability Act 2013 for that reporting period had not been prepared before that time.

Subclause 21(2) provides that the report must be prepared by the Commissioner under the new Act.

Clause 22 - Commissioner's report for period in which transition time occurs

Clause 22 provides for the transition of the Commissioner's report where the transition time occurs during a reporting period.

Subclause 22(1) outlines that this clause applies if the transition time occurs during a reporting period for the Commissioner under the old Act.

Subclause 22(2) provides that the first annual report referred to in section 46 of the Public Governance, Performance and Accountability Act 2013 to be prepared by the Commissioner under the new Act must cover the matters that would have been included in the annual report from the old Act for the period between the end of the preceding reporting period and commencement of the new Act.

Clause 23 - Records

Clause 23 provides that records and documents in the possession of the Commission under the old Act before the transition time are to be transferred to the Commission under the new Act after the transition time.

Clause 24 - Staff

Clause 24 provides for the transition of staff members of the Commission.

Subclause 24(1) outlines that this clause applies to a person who was a staff member of the Commission under section 33 of the Commission Act immediately before the transition time.

Subclause 24(2) provides that the person referred to in subclause (1) is taken to be engaged as a staff member of the Commission under section 369 of the new Act under the same terms and conditions.

Subclause 24(3) provides that the continuity of employment of the person referred to in subclause (1) is not affected by the repeal of the Commission Act.

Clause 25 - Persons assisting the Commissioner

Clause 25 provides for the transition of persons assisting the Commissioner.

Subclause 25(1) outlines that this clause applies to a person who was made available to the Commissioner under section 34 of the Commission Act immediately before the transition time.

Subclause 25(2) provides that the person referred to in subclause 25(1) is taken to be made available to the Commission under section 370 of the new Act under the same terms and conditions.

Subclause 25(3) provides that nothing in this clause is taken to affect the time at which the person was made available to the Commissioner under the Commission Act.

Clause 26 - Consultants

Clause 26 provides for the transition of consultants engaged by the Commission.

Subclause 26(1) outlines that this clause applies to a person who was engaged as a consultant under section 35 of the Commission Act immediately before the transition time.

Subclause 26(2) provides that the person referred to in subclause 26(1) is taken to be engaged as a consultant under section 371 of the new Act under the same terms and conditions.

Subclause 26(3) provides that the continuity of the engagement of the person referred to in subclause 26(1) is not affected by the repeal of the Commission Act.

Clause 27 - Chief Clinical Advisor

Clause 27 provides for the transition of the Chief Clinical Advisor.

Subclause 27(1) outlines that this clause applies to a person who was appointed as the Chief Clinical Advisor under section 35A of the Commission Act immediately before the commencement of the new Act.

Subclause 27(2) provides that the person referred to in subclause 27(1) is taken to have been appointed as the Chief Clinical Adviser under section 354 of the new Act on the same terms and conditions.

Subclause 27(3) provides that nothing in this clause is taken to affect the time at which the person was appointed.

Clause 28 - Requirement to prepare reports or give information-Commissioner

Clause 28 provides for the transition of requirements for the Commissioner to give reports or documents to the Minister, where the matter does not relate to the complaints function of the Complaints Commissioner under the new Act.

Subclause 28(1) outlines that this clause applies if:

•

the Commissioner under the Commission Act is required to give the Minister under section 58 of that Act, within a period that ends after the transition time:

o

a report about a specified matter relating to the performance of the Commissioner's functions; or

o

a document setting out specified information relating to the performance of the Commissioner's functions; and

•

the report or document had not been given to the Minister before the transition time.

Subclause 28(2) provides that the Commissioner under the new Act must comply with the requirement.

Subclause 28(3) provides that, if the specified matter or information relates to the performance of the complaints functions of the Complaints Commissioner under the new Act, the Commissioner under the new Act may, in writing, delegate the preparation of the report or document to the Complaints Commissioner.

Clause 29 - Things done by or in relation to Commission under the Commission Act

Clause 29 provides for the transition of things done by or in relation to the Commission.

Subclause 29(1) outlines that this clause applies if:

•

at a time (the initial time) before the transition time, a thing was done by, or in relation to, the Commission under the Commission Act; and

•

the new Act provides for that thing to be done by, or in relation to, the Commission under the new Act.

Subclause 29(2) provides that the thing has effect on commencement of the new Act as if it had been done at the initial time by, or in relation to, the Commission under the new Act.

Subclause 29(3) provides that subclause 29(2) above is not intended to change the initial time at which the thing was done.

Clause 30 - Things done by or in relation to Commissioner under the Commission Act

Clause 30 provides for the transition of things done by or in relation to the Commissioner.

Subclause 30(1) outlines that this clause applies if:

•

a thing was done by, or in relation to, the Commissioner under the Commission Act at a time (the initial time) before the transition time; and

•

the new Act provides for that thing to be done by, or in relation to, the Commissioner under the new Act.

Subclause 30(2) provides that the thing has effect on commencement of the new Act as if it had been done at the initial time by, or in relation to, the Commissioner under the new Act.

Subclause 30(3) provides that subclause 30(2) above is not intended to change the initial time at which the thing was done.

Division 2 - Commissioner of the Commission

Clause 31 - Commissioner

Clause 31 provides for the transition of the Commissioner.

Subclause 31(1) outlines that this clause applies to the person who was appointed as the Commissioner under section 24 of the Commission Act immediately before the transition time.

Subclause 31(2) provides that, at the transition time, the person referred to in subclause 31(1) will become the Commissioner under the new Act. Paragraph 31(2)(a) provides that the person holds this office on terms and conditions that are equal to or better than those on which the person held office as the Commissioner under the Commission Act, and paragraph 31(2)(b) provides that the period of appointment under the Commission Act is unaffected by transition.

The note under the last subparagraph clarifies that the person's remuneration will be better than their remuneration under section 24 of the Commission Act only if the Remuneration Tribunal determines a higher level.

Clause 32 - Acting Commissioner

Clause 32 provides for the transition of an acting Commissioner.

Subclause 32(1) outlines that this clause applies to the person who was appointed to act as the Commissioner under section 25 of the Commission Act immediately before the transition time.

Subclause 32(2) provides that, at the transition time, the person referred to in subclause 32(1) will be taken to have been appointed to act as an acting Commissioner under section 362 of the new Act. Paragraph 32(2)(a) provides that the terms and conditions of the acting appointment are to be equal to or better than those on which the person was appointed as the acting Commissioner under the Commission Act, and paragraph 32(2)(b) provides that the period of the acting appointment under the Commission Act is unaffected by transition.

Division 3 - Establishment of the Aged Care Quality and Advisory Council

Clause 33 - Records

Clause 33 provides that records and documents in the possession of the Advisory Council under the Commission Act immediately before the transition time are to be transferred to the Advisory Council established under the new Act after the new Act commences.

Clause 34 - Chair of Advisory Council

Clause 34 provides for the transition of the Chair of the Advisory Council.

Subclause 34(1) outlines that this clause applies to the person who was appointed as the Chair of the Advisory Council under section 41 of the Commission Act immediately before the transition time.

Subclause 34(2) provides that, at the transition time, the person referred to in subclause 34(1) will be taken to have been appointed as the Chair of the Advisory Council under section 386 of the new Act. Paragraph 34(2)(a) provides that this person holds office as the Chair under the new Act on equal or better terms and conditions on which they held office as Chair under the Commission Act, and paragraph 34(2)(b) provides that the period of appointment under the Commission Act is unaffected by transition.

The note under the last subparagraph clarifies that the person's remuneration will be better than their remuneration under section 41 of the Commission Act only if the Remuneration Tribunal determines a higher level.

Clause 35 - Other members of Advisory Council

Clause 35 provides for the transition of other members of the Advisory Council.

Subclause 35(1) outlines that this clause applies to a person who was a member, other than the Chair, of the Advisory Council under the Commission Act immediately before the transition time.

Subclause 35(2) provides that the person referred to in subclause 35(1) is taken to have been appointed as a member, other than the Chair or Deputy Chair, of the Advisory Council under section 386 of the new Act. Paragraph 35(2)(a) provides that the person will hold office as a member of the Advisory Council under the new Act on equal or better terms and conditions on which the person held office as a member under the Commission Act, and paragraph 35(2)(b) provides that the period of their appointment under the Commission Act is unaffected by transition.

The note under the last subparagraph clarifies that the person's remuneration will be better than their remuneration under section 41 of the Commission Act only if the Remuneration Tribunal determines a higher level.

Clause 36 - Acting Chair of Advisory Council

Clause 36 provides for the transition of an acting Chair of the Advisory Council.

Subclause 36(1) outlines that this clause applies to a person who was appointed to act as the Chair under subsection 42(1) of the Commission Act immediately before the transition time.

Subclause 36(2) provides that the person referred to in subclause 36(1) will be taken to have been appointed to act as the Chair under subsection 387(1) of the new Act. This subclause further provides that the acting appointment is to be on equal or better terms and conditions on which the person was appointed to act as the Chair under the Commission Act, and that the period for which the person was appointed to act as the Chair under the Commission Act is unaffected by transition.

Clause 37 - Acting members of Advisory Council

Clause 37 provides for the transition of acting members of the Advisory Council.

Subclause 37(1) outlines that this clause applies to a person who was appointed to act as a member, other than the Chair, of the Advisory Council under subsection 42(2) of the Commission Act immediately before the transition time.

Subclause 37(2) provides that the person referred to in subclause 17(1) is taken to have been appointed as a member, other than the Chair or Deputy Chair, of the Advisory Council under subsection 387(2) of the new Act. This subclause further provides that the acting appointment is to be on equal or better terms and conditions on which the person was appointed to act as a member under the Commission Act, and that the period for which the person was appointed to act as a member of the Advisory Council under the Commission Act is unaffected by transition.

Clause 38 - Procedures of Advisory Council

Clause 38 provides that a written direction given by the Minister to the Advisory Council under section 50 of the Commission Act is taken to have been given by the Minister to the Advisory Council under subsection 395(2) of the new Act.

Clause 39 - Disclosure of interests to the Minister

Clause 39 provides for the transition of disclosures of interests to the Minister.

Subclause 39(1) outlines that this clause applies to a person taken by this Division to be a member of the Advisory Council under the new Act.

Subclause 39(2) provides that a notice given under section 45 of the Commission Act before the transition time is taken to have been given under section 390 of the new Act.

Part 5 - Transitional provisions for Chapter 6 of the new Act

Division 1 - Regulatory powers

Division 1 provides for transitional arrangements relating to the application of the regulatory powers under the new Act. In particular, the provisions will allow for continued monitoring of matters such as appraisals for classifications, responsibilities of approved providers (such as quality of care responsibilities) and the former Code of Conduct. The provisions will also allow for continued investigation of offence provisions and certain civil penalty provisions under the old law.

Clause 40 - Application of regulatory powers provisions of the new Act

Clause 40 applies the monitoring and investigation powers under the new Act to matters under the old law to ensure continued regulation of the aged care sector.

Monitoring powers

Subclause 40(1) provides for transitional arrangements for monitoring powers by making certain adjustments to the application of Part 2 of Chapter 6 of the new Act (Monitoring under Part 2 of the Regulatory Powers Act, Regulatory Mechanisms), so that compliance with certain provisions under the old Act remains subject to those monitoring powers for a defined further period.

Paragraph 40(1)(a) provides that Part 2 of Chapter 6 of the new Act applies as if the following provisions under the old law were mentioned in subsection 397(1) of the new Act, which deals with provisions subject to monitoring under Part 2 of the Regulatory Powers Act:

•

sections 25-3 (appraisals of the level of care needed in relation to classifications of care recipients), 27-3 (reappraisal of the level of care needed required by Secretary), and 27-5 (requirements for reappraisal of the level of care needed by a care recipient) of the old Act,

•

Chapter 4 (responsibilities of approved providers) of the old Act;

•

subsections 74AC(1) of the Commission Act (aged care workers of approved providers must comply with Code of Conduct) and 74AD(1) of the Commission Act (governing persons of approved providers must comply with Code of Conduct); and

•

subsection 397(2) of the new Act made reference to information provided in compliance, or purported compliance, with:

o

a provision of Chapter 3 of the Old Transitional Provisions Act;

o

a provision of Chapter 4 of the old Act; and

Paragraph 40(1)(b) provides that Part 2 of Chapter 6 of the new Act applies as if the following information were mentioned in subsection 397(2) of the new Act, which deals with information subject to monitoring under Part 2 of the Regulatory Act:

•

information provided in compliance, or purported compliance with a provision of Chapter 3 of the old Act (subsidies) or Chapter 3 of the old Transitional Provision Act (subsidies);

•

information provided in compliance, or purported compliance with a provision of Chapter 4 of the old Act (responsibilities of approved providers).

Paragraph 40(1)(c) provides that Part 2 of Chapter 6 of the new Act applies as if- the provisions mentioned in subparagraph 40(1)(a)(ii) and (iii), and the information mentioned in subparagraph 40(1)(b)(ii), of this subitem related to a function of the Commissioner or Complaints Commissioner for the purposes of section 399 of the new Act (authorised applicant, authorised person and relevant chief executive - Commissioner or Complaints Commissioner monitoring functions) and paragraph 410(3)(a) of the new Act (monitoring powers and functions of the Commission or Complaints Commissioner that may be delegated).

Paragraph 40(1)(d) provides that Part 2 of Chapter 6 of the new Act applies as if the provisions mentioned in subparagraph 40(1)(b)(i), of this subclause related to a function of the System Governor for the purposes of section 400 of the new Act (authorised applicant, authorised person and relevant chief executive - System Governor monitoring functions) and paragraph 411(2)(a) of the new Act (monitoring powers and functions of the System Governor that may be delegated).

Subclause 40(2) provides that subclause 40(1) does not authorise or apply in relation to an entry to premises that occurs after the end of 18 months starting at the transition time.

Investigation powers

Subclause 40(3) provides for transitional arrangements for investigations powers by making certain adjustments to the application of Part 3 of Chapter 6 of the new Act (Investigating under Part 3 of the Regulatory Powers Act, Regulatory Mechanisms), so that compliance with certain provisions under the old Act remains subject to those investigation powers.

Paragraph 40(3)(a) provides that Part 3 of Chapter 6 of the new Act applies as if the following provisions were mentioned in section 412 of the new Act, which deals with provisions subject to investigation under part 3 of the Regulatory Powers Act:

•

an offence provision of the old Act, the Commission Act;

•

an offence provision of the Crimes Act or the Criminal Code (to the extent that it relates to the old Act or the Commission Act);

•

a civil penalty provision of the old Act ((other than a civil penalty provision in Division 54 of the old Act (responsibilities of approved providers relating to quality of care));

•

a civil penalty provision of the Commission Act or in Division 54 of the old Act (responsibilities of approved providers relating to quality of care).

Paragraph 40(3)(b) provides that Part 3 of Chapter 6 of the new Act applies as if the provisions mentioned in subparagraphs 40(3)(a)(i), (ii) and (iv) of this subclause related to a function of the Commissioner or Complaints Commissioner for the purposes of section 414 of the new Act (authorised applicant, authorised person and relevant chief executive - Commissioner or Complaints Commissioner investigations functions) and paragraph 425(3)(a) of the new Act (investigation powers and functions of the Commission or Complaints Commissioner that may be delegated).

Paragraph 40(3)(c) provides that Part 3 of Chapter 6 of the new Act applies as if the provisions mentioned in subparagraph 40(3)(a)(iii) related to a function of the System Governor for the purposes of section 415 of the new Act (authorised applicant, authorised person and relevant chief executive - System Governor investigations functions) and paragraph 426(2)(a) of the new Act (investigation powers and functions of the System Governor that may be delegated).

Division 2 - Notices to answer questions or give information or documents

Division 2 provides transitional arrangements for notices to attend to answer questions or provide information or documents which were issued before the transition time but have not been complied with before the transition time.

Clause 41 - Saving notices under the old Act to attend to answer questions or give information or documents

Clause 41 provides that notices to attend issued under the old Act are still required to be complied with if a person had not complied with the notice before the transition time. The effect of this clause is that the person will be required to attend before an authorised System Governor officer to do the thing specified in the notice, rather than having to attend before an authorised officer of the Secretary.

Subclause 41(1) sets out that this clause applies if:

•

a notice was given to a person under subsection 93-1(2) of the old Act (notice to attend to answer questions and/or give information/documents relevant to certain matters) before the transition time; and

•

the notice required the person to attend before an authorised officer to do a thing at a time that is at or after the transition time.

Subclause 41(2) provides that Division 93 of the old Act (notice to attend to answer questions etc.) continues to apply at and after the transition time in relation to the notice as if:

•

subsection 93-1(2) of the old Act authorised the Secretary to require the person to attend before an authorised System Governor officer; and

•

the authorised officer specified in the notice were an authorised System Governor officer.

Clause 42 - Saving notices under the Commission Act to attend to answer questions or give information or documents

Clause 42 provides that notices to attend issued under the Commission Act are still required to be complied with if the person had not complied with the notice before the transition time. The effect of this clause is that the person will be required to attend before an authorised Commission officer to do the thing specified in the notice, rather than having to attend before an authorised officer of the Commissioner (within the meaning of the Commission Act).

Subclause 42(1) sets out that this clause applies if:

•

a notice was given to a person under subsection 74F(1) of the Commission Act (notice to attend to answer questions and/or give information/documents relevant to whether aged care responsibility is being complied with) or 74FA(2) of the Commission Act (notice to attend to answer questions and/or give information/documents relevant to compliance with Code of Conduct) before the transition time; and

•

the notice required the person to attend before an authorised officer to do a thing at a time that is at or after the transition time.

Subclause 42(2) sets out that Division 3 of Part 8A of the Commission Act (notice to attend to answer questions etc.) continues to apply after the transition time in relation to the notice as if subsections 74F(1) and 74FA(2) of that Act authorised the Commissioner to require the person to attend before an authorised Commission officer; and the authorised officer specified in the notice were an authorised Commission officer.

Clause 43 - Saving notices under the Commission Act to give information or produce documents

Clause 43 provides that notices to give information or produce documents given under the Commission Act are still required to be complied with if the person had not complied with the notice before the transition time. The effect of this clause is that the person will be required to give the information/documents specified in the notice to the Commissioner (within the meaning of the new Act), rather than having to give the information/documents to the Commissioner (within the meaning of the Commission Act).

Subclause 43(1) sets out that this clause applies if:

•

a notice was given to a person under subsection 74GA(1) of the Commission Act (power to require information or documents) before the transition time;

•

the notice required the person to give the Commissioner information or produce to the Commissioner documents or copies of documents, within a time that ends at or after the transition time; and

•

the notice was not complied with before the transition time.

Subclause 43(2) sets out that Division 3 of Part 8A of the Commission Act (notice to attend to answer questions etc.) continues to apply at and after the transition time in relation to a notice as if:

•

subclause 74GA(1) of that Act authorised the Commissioner to require the person to give the information, or to produce the documents or copies, to the Commissioner (within the meaning of the new Act); and

•

the references in subclauses 74GA(2), (3) and (4) of that Act to the Commissioner were references to the Commissioner (within the meaning of the new Act).

Division 3 - Compliance notices and banning orders

Division 3 provides for the transition arrangements of certain compliance notices and banning orders issued under the Commission Act.

Clause 44 - Compliance notices

Clause 44 provides transitional arrangements for certain compliance notices issued under the Commission Act. The effect of this provision is that a compliance notice issued under the Commission Act must still be complied with if the relevant registered provider had not complied with the notice at the transition time. In other words, it will be as though the compliance notice is one that was issued under the new Act.

Subclause 44(1) outlines that the clause applies where:

•

an entity is taken to be a registered provider under the new Act because of subclause 5(1) of the Transitional Bill;

•

a compliance notice within the meaning of the Commission Act was given to the entity before the transition time; and

•

the compliance notice had not been complied with before the transition time.

Subclause 44(2) provides that the compliance notice is taken to be a compliance notice given under section 481 of the new Act after the transition time.

Clause 45 - Banning orders in force immediately before the transition time

Clause 45 provides for the transition of banning orders in force immediately before the transition time to operate under the regulatory framework established under the new Act.

Subclause 45(1) outlines that the clause applies in relation to a banning order against an individual made under subsection 74GB(1) or 74GB(3) of the Commission Act that is in force immediately before the transition time. This involves current or previous aged care workers and governing persons, and persons who have not previously been an aged care worker or governing person.

Subclause 45(2) provides that the banning order continues in force on and after the transition time as if it were a banning order against the individual made under section 498 of the new Act.

Subclause 45(3) provides that, for the purposes of the new Act:

•

a banning order made against an individual who is or was a governing person is to be taken to have been made against the individual as a responsible person;

•

a banning order relating to the individual's involvement in the provision of any type of aged care is to be taken to relate to the individual's involvement in the delivery of funded aged care services generally; and

•

a banning order relating to the individual's involvement in the provision of a specified type of aged care is to be taken to relate to the delivery of funded aged care services of the specified service type or service types that the Commissioner considers correspond as nearly as possible to the specified type of aged care to which the order related before the transition time.

Subclause 45(4) outlines that, for the purposes of the new Act a banning order made for a specified period will remain in force for that period, or where a banning order was made subject to specified conditions it remains subject to the same conditions.

Clause 46 - Banning orders that had expired before the transition time

Clause 46 provides for the transition of the treatment of banning order that are no longer in force as at immediately before the transition time, creating the concept of expired banning orders. The intent of this concept is to aid in risk assessment and decision-making, ensuring a fuller picture of an individual's history of behaviour and the potential risk they pose to the safety and wellbeing of persons accessing funded aged care services.

Subclause 46(1) outlines that the clause applies in relation to a banning order against an individual made under subsection 74GB(1) or (3) of the Commission Act that had ceased to be in force immediately before the transition time.

Subclause 46(2) provides that a banning order made under the Commission Act that is no longer in force immediately before the transition time is relevant to the suitability matters outlined in paragraph 13(1)(b) of the new Act, as it is to be taken to be a banning order against an individual for that purpose.

Subclause 46(3) provides that a banning order made under the Commission Act that is no longer in force immediately before the transition time is to be taken to be a banning order under the new Act for the purposes of subsection 141(6) of the new Act, which outlines information the Provider Register may include in relation to a banning order that was in force under section 498 of the new Act.

Subclause 46(4) provides that section 507 of the new Act, which relates to the register of banning orders, applies to a banning order made under the Commission Act that is no longer in force immediately before the transition time as if that banning order is an expired banning order for the purposes of that section, and:

•

as if paragraph 507(2)(a) of the new Act included a reference to revocation under section 74GG of the Commission Act; and

•

as if paragraph 507(2)(b) of the new Act included a reference to reconsideration under Part 8B of the Commission Act.

Clause 47 - Notices of intention to make banning orders

Clause 47 provides for the transition of notices of intention to make banning orders.

Subclause 47(1) outlines that this clause applies in relation to a notice given to an individual in accordance with section 74GE of the Commission Act if the notice was given before the transition time, and the period, referred to in paragraph 74GE(3)(b) of the Commission Act, for the making of submissions in relation to the notice had not expired as at the transition time.

Subclause 47(2) provides that a notice given to an individual in accordance with section 74GE of the Commission Act is to be taken to be a notice given to the individual in accordance with section 499 of the new Act. Paragraph 47(2)(b) provides that the notice under section 74GE of the Commission Act is to be taken to invite, for the purposes of paragraph 499(3)(b) of the new Act, the making of submissions by the end of the period under paragraph 47(1)(b).

Clause 48 - Pending applications for variations or revocations of banning orders

Clause 48 provides for the transition of pending applications for variations or revocations of banning orders or the conditions associated with a banning order.

Subclause 48(1) outlines that this clause applies in relation to an application for a variation or revocation of a banning order made in accordance with section 74GG or 74GH of the Commission Act if the application was made before the transition time and no decision on the application had been made before the transition time.

Subclause 48(2) provides that, after the transition time, the application is taken to be an application made in accordance with section 505 of the new Act relating to varying or revoking banning orders on application.

Subclause 48(3) provides that a notice of intention in relation to the application given before the transition time in accordance with subsection 74GG(4) or 74GH(4) of the Commission Act is taken, after the transition time, to be a notice given in accordance with subsection 505(4) of the new Act. It also provides that, if the period specified in the notice for the making of submissions in accordance with paragraph 74GG(4)(b) or 74GH(4)(b) of the Commission Act had not expired before the transition time, submissions may be made in relation to that notice for the purposes of paragraph 505(4)(b) of the new Act until the end of that period.

Division 4 - Sanctions, undertakings and Code of Conduct requirements

Division 2 provides transitional arrangements for the handling of certain kinds of sanctions, undertakings and code of conduct requirements issued under the Commission Act prior to the transition time which are yet to be complied with. The purpose of this Division is to ensure that registered providers appropriately respond to certain regulatory action undertaken in relation to non-compliance with responsibilities under the old law.

Clause 49 - Commission Act sanctions not complied with before transition time

Clause 49 provides for the handling of certain kinds of sanctions which were imposed under the Commission Act but not complied with as at the transition time. The effect of this provision is that a registered provider must comply with a sanction of the kind prescribed in paragraph 49(1)(c) imposed on them under the Commission Act despite its repeal.

Subclause 49(1) outlines that the clause applies where:

•

an entity is taken to be a registered provider under the new Act because of subclause 5(1);

•

the Commissioner had imposed a sanction on the entity under section 63N of the Commission Act (Commissioner may impose sanctions for non-compliance with aged care responsibilities) before the transition time;

•

the sanction was of a kind mentioned in:

o

paragraph 63R(k) of the Commission Act (a sanction requiring a provider to refund an amount of accommodation payment or accommodation contribution which was more than the amount the provider was permitted to charge under Division 52G of the old Act); or

o

paragraph 63R(m) of the Commission Act (a sanction requiring a provider to refund a refundable deposit balance under Division 52P of the old Act); or

o

paragraph 63R(o) of the Commission Act (a sanction specified in the Commission Rules);

•

the sanction was in effect immediately before the transition time; and

•

the sanction had not been complied with before the transition time.

Subclause 49(2) provides that the obligation to comply with the sanction continues after the transition time, despite the repeal of the Commission Act.

Clause 50 - Commission Act undertakings not complied with as at transition time

Clause 50 provides for the handling of undertakings given by approved providers under section 63T of the Commission Act (approved provider may be required to give undertaking about remedying non-compliance) which have not yet been complied with as at the transition time. The effect of this provision is that a registered provider must comply with any undertaking they gave under the Commission Act despite its repeal.

Subclause 50(1) outlines that the clause applies where:

•

an entity is taken to be a registered provider under the new Act because of subclause 5(1) of this Schedule;

•

the entity gave before the transition time an undertaking as required by a notice given to the entity under section 63T of the Commission Act; and

•

the undertaking had not been complied with before the transition time.

Subclause 50(2) provides that the obligation to comply with the undertaking continues after the transition time, despite the repeal of the Commission Act.

Clause 51 - Commission Act Code of Conduct requirements not complied with before transition time

Clause 51 provides for the handling of Commission Act Code of Conduct requirements not complied with as at the transition time. The effect of this provision is that a registered provider, an aged care worker or governing person of a provider must comply with any requirement to take action issued under section 23BD of the Commission Act in relation to compliance with the Code of Conduct despite its repeal.

Subclause 51(1) outlines that the clause applies where:

•

an entity is taken to be a registered provider under the new Act because of subclause 5(1);

•

the Commissioner gave the entity, or an aged care worker or governing person of that entity, a requirement under section 23BD of the Commission Rules (actions the Commissioner may take in relation to compliance with the Code of Conduct); and

•

the requirement had not been complied with before the transition time.

Subclause 51(2) provides that the requirement continues after the transition time, despite the repeal of the Commission Act.

Part 6 - Transitional provisions for Chapter 7 of the new Act

Clause 52 - Protected information

Subclause 52(1) applies to information that immediately before the transition time was protected information within the meaning of the old Act or Commission Act.

Subclause 52(2) provides that for the purposes of the new Act, the information is taken, after the transition time, to be protected information within the meaning of that Act.

Clause 53 - Retention of records by approved providers

Clause 53 eases administrative burden on providers by permitting them to keep records created before the transition time under the law applicable at the time the records were created.

Subclause 53(1) outlines that this clause applies to an entity that was an approved provider within the meaning of the old Act immediately before the transition time.

Subclause 53(2) provides that sections 88-1 to 88-3 and 89-1 of the old Act continue to apply to the entity in relation to a record made before the transition time, as if those sections of the old Act had not been repealed.

Subclause 53(3) provides that for the purposes of subclause 53(2) the reference in section 88-2 of the old Act to the Records Principles is taken to be a reference to the Records Principles 2014 made by the Minister under section 96-1 of the old Act, as in force immediately before the transition time.

Subclause 53(4) outlines that nothing within this clause is intended to change the time at which the requirement to retain a record referred to in subsection 89-1(2) of the old Act arises.

Clause 54 - Retention of records by former approved providers

Clause 54 transitions the requirement under the old law for persons who have ceased being a provider before the transition time to keep records.

Subclause 54(1) outlines that this clause applies to an entity who was required to comply with section 89-1 of the old Act immediately before the transition time.

Subclause 54(2) provides that section 89-1 of the old Act continues to apply to the entity as if the section had not been repealed.

Part 7 - Transitional provisions for Chapter 8 of the new Act

Division 1 - Reconsideration and review of decisions

This Division deals with transitional arrangements for reviewable decisions and reconsideration decisions made under the old law, in addition to decisions made under the old law which require notices or reasons to be provided. The effect of this Division is that particular requirements and processes provided for under the old law will continue to apply to particular decisions made under the old law, as if the old law had not been repealed. This is to ensure continuity of rights and fairness preserving access to legal recourse and the ability to challenge decisions made under the old law, while the new law is implemented. This approach safeguards procedural fairness and protects against potential gaps in legal protections.

Clause 55 - Notice of decisions

Clause 55 deals with giving notices of decisions where a decision was made under the old law but the notice was not given before the transition time.

Subclause 55(1) limits the application of this clause to decisions made under the old law where the old law required notice of the decision to be given to a person and the notice was not given before the transition time.

Subclause 55(2) provides that the notice must be given as if the old law continued to apply, despite the repeal of the old Act, the Commission Act and the old Transitional Provisions Act.

Clause 56 - Notice of review rights

Clause 56 deals with giving notices of review or appeal rights relating to a decision where the decision was made under the old law but the notice was not given before the transition time.

Subclause 56(1) limits the application of this clause to decisions made under the old law where the old law required notice of review or appeal rights in relation to the decision to be given to a person and the notice was not given before the transition time.

Subclause 56(2) provides that the notice must be given as if the old law continued to apply, despite the repeal of the old Act, the Commission Act and the old Transitional Provisions Act.

Clause 57 - Reasons for decisions

Clause 57 deals with providing reasons for decisions made under the old law where the decision was made under the old law but the reasons were not given before the transition time.

Subclause 57(1) outlines that the clause applies in relation to decisions made under the old law where the old law required reasons for the decision to be given to a person and the reasons were not given before the transition time.

Subclause 57(2) provides that the reasons must be given as if the old law continued to apply, despite the repeal of the old Act, the Commission Act and the old Transitional Provisions Act.

Clause 58 - Review of decisions made under old law

Clause 58 provides for the continued application of the old law in relation to the review of decisions made under the old law. The effect of this clause is that the relevant reconsideration and review processes provided for under the old law for reviewable decisions and reconsideration decisions which were made under the old law will continue to apply as if the old law had not been repealed.

Continued application of Part 6.1 of old Act

Subclause 58(1) provides that, despite the repeal of the old Act, Part 6.1 of the old Act, which deals with reconsideration and review of decisions will continue to apply after the transition time in relation to:

•

a reviewable decision made before the transition time; and

•

a decision of the Secretary or the Pricing Authority (whether the decision is made before or after the transition time) under section 85-4 or 85-5 of the old Act following a reconsideration of a reviewable decision made before the transition time.

Continued application of Part 6.1 of Transitional Provisions Act

Subclause 58(2) provides that, despite the repeal of the Old Transitional Provisions Act, Part 6.1 of the old Transitional Provisions Act which deals with reconsideration and review of decisions, will continue to apply after the transition time in relation to:

•

a reviewable decision made before the transition time; and

•

a decision of the Secretary (whether made before or after the transition time) under section 85-4 or 85-5 of the old Transitional Provisions Act following a reconsideration of a reviewable decision made under the old Transitional Provisions Act before the transition time.

Continued application of Part 8B of Commission Act

Subclause 58(3) provides that, despite the repeal of the Commission Act Part 8B of the Commission Act, which deals with reconsideration and review of decisions, will continue to apply after the transition time in relation to:

•

a reviewable decision made under the Commission Act before the transition time; and

•

a reconsideration decision of an internal decision reviewer (whether made before or after the transition time) under section 74L or 74M of the Commission Act following a reconsideration of a reviewable decision made under the Commission Act before the transition time.

Continued application of Part 7 of Commission Rules

Subclause 58(4) provides that, despite the repeal of the Commission Act, Part 7 of the Commission Rules, which deals with reconsideration and review of decisions will continue to apply after the transition time in relation to

•

a reviewable Commissioner decision made before the Commission rules before the transition time; and

•

a reconsideration decision of an internal reviewer (whether made before or after the transition time) following a reconsideration of a reviewable Commissioner decision made under the Commission Rules before the transition time.

Division 2 - Annual reports

Clause 59 - Annual report for financial year ending before transition time

Clause 59 maintains the requirement that an annual report for the preceding financial year be laid before each House of Parliament where this obligation remains outstanding following commencement of the new Act.

Subclause 59(1) establishes that this clause applies only if:

•

the new Act commences after the end of a financial year; and

•

the annual report referred to in section 63-2 of the old Act for that financial year had not been laid before each House of the Parliament before that time.

Subclause 59(2) provides that section 63-2 of the old Act continues to apply to the report even though the old Act has been repealed by the Transitional Bill.

Clause 60 - Annual report for financial year in which transition time occurs

Clause 60 provides for the transition of annual reports where the new Act commences during a financial year.

Subclause 60(1) outlines that the clause applies if the transition date is during a financial year.

Subclause 60(2) provides that the first annual report prepared by the System Governor under section 599 of the new Act must cover the matters that would have been included in the annual report required under the old Act for the part of the financial year before the transition time.

Part 8 - Miscellaneous

Clause 61 - Delegation of System Governor's functions and powers under this Act

Clause 61 provides that section 567 of the new Act applies in relation to the System Governor's functions and powers under this Act in the same way as that section applies in relation to the System Governor's functions and powers under the new Act.

Clause 62 - Delegation and subdelegation of Commissioner's functions and powers under this Act

Clause 62 provides the transitional arrangements for the delegation and subdelegation of the Commissioner's functions and powers.

Subclause 62(1) provides that this clause applies to the Commissioner under the new Act.

Subclause 62(2) provides that sections 574 and 575 of the new Act applies in relation to the Commissioner's functions and powers under this Act in the same way as that section applies in relation to the Commissioner's functions and powers under the new Act.

Part 9 - Transitional provisions for amendments to the National Disability Insurance Scheme Act 2013

Clause 63 - Protected Commission information

Clause 63 provides that the amendments to section 67A of the NDIS Act made by Schedule 1 to this Bill apply in relation to any making of a record of, or disclosure or use of, protected Commission information after the transition time, whether the information was obtained before, on or after that time.

Clause 64 - NDIS worker screening database

Clause 64 provides that the amendment of paragraph 181Y(3)(c) of the NDIS Act made by Schedule 1 to this Bill applies to information in the NDIS worker screening database regardless of whether the information was entered into that database before or after the transition time.

Part 10 - Transitional rules

Clause 65 - Transitional rules

More than a million older Australians receive funded aged care services under the existing aged care system. Those services are delivered by thousands of approved providers. The transitional provisions in this Schedule seek to ensure a seamless transition between the existing aged care system and the new legislative framework, but it may not be possible to anticipate the full range of circumstances which the transitional provisions will need to accommodate. The rule-making power provided for in Clause 65 is necessary to deal with unintended outcomes or unforeseen issues arising through transition from the old Act to the new Act.

The rule-making power will allow for the Minister to make legislative instrument dealing with matters affecting large cohorts of persons and providers within the aged care system to ensure that the necessary operative mechanisms within the new framework to function are in place. The matters to be addressed through the rules made under this provision will include matters relating to agreements between individuals and aged care providers, the persons that individuals have elected to be their supporters for the purposes of the new Act, and the allocation of places to providers delivering funded aged care services under specialist aged care programs. For providers of care, the rules will provide for the allocation of service groups and registration categories which will govern the types of funded aged care services a provider can deliver to individuals and the manner in which those services are to be funded - that is whether on a subsidy or grant-based approach.

For transition to be effective, it is essential that the above matters can be dealt with in a tailored and nuanced manner by cohort of individual or provider to allow persons to maintain access to care at an equivalent level to that they currently receive.

Subclause 65(1) permits the Minister, by legislative instrument, to make rules prescribing matters required or permitted by the Transitional Bill, or necessary or convenient for carrying out or giving effect to the Transitional Bill.

Subclause 65(2), without limiting the operation of subclause 65(1), provides that the Minister may make rules prescribing transitional arrangements that relate to the provisions of the Transitional Bill which amend or repeal other legislation, or enactment of the new Act. This includes rules to:

•

modify provisions of the Transitional Bill or the new Act, or provide for the application (with or without modifications) of provisions of those Acts to matters to which they would otherwise not apply, and

•

modify the operation of the Transitional Bill (including in respect of specified matters only).

Subclause 65(3) limits the timeframe under which rules made for the purposes of subclause 65(2) may be made to 12 months starting from the transition time, however, it does not limit subitem 65(2) in any other manner.

While subclause 65(4) permits the rules to be made to have retrospective application, subclause 65(5) provides that a person must not be convicted of an offence or ordered to pay a pecuniary penalty in relation to conduct engaged in before the registration date if the conduct would not have contravened an existing Act. This means that the rules would not be able to retrospectively criminalise conduct or apply a penalty.

Subclause 65(6) imposes limits on the transitional rules, such that the Minister may not make rules which:

•

create an offence or civil penalty;

•

provide powers of arrest or detention, or provide powers of entry, search or seizure;

•

impose a tax;

•

set an amount to be appropriated from the Consolidated Revenue Fund;

•

directly amend the text of the Transitional Bill or the new Act.

Subclause 65(7) provides that this Schedule does not limit the rules that may be made for the purposes of subclause 65(1).

SCHEDULE 3 - REPEALS

Aged Care Act 1997

Clause 1 - The whole of the Act

Clause 1 repeals the whole of the old Act.

Aged Care Quality and Safety Commission Act 2018

Clause 2 - The whole of the Act

Clause 2 repeals the whole of the Commission Act.

Aged Care (Transitional Provisions) Act 1997

Clause 3 - The whole of the Act

Clause 3 repeals the whole of the old Transitional Provisions Act.