Purpose of the Bill

The purpose of the Aged Care (Consequential and Transitional Provisions) Bill 2024 (the current Bill) is to deal with consequential and transitional matters arising from the Aged Care Act 2024 (the new Act), should that Act commence.

Structure of the Bill

The Bill contains 3 Schedules:

• Schedule 1 contains consequential amendments to the Crimes Act 1914 and the National Disability Insurance Scheme Act 2013 (NDIS Act) to provide for aged care worker screening checks and align these with NDIS worker screening. It also amends the Freedom of Information Act 1982 to remove aged-care specific freedom of information exemptions.
• Schedule 2 contains transitional provisions relating to Chapters 2, 3, 5, 6, 7 and 8 of the new Act, and in relation to the powers and function of the System Governor and the Commissioner. It also contains transitional provisions relating to the consequential amendments to the NDIS Act made by Schedule 1, and provides that the Minister may make transitional rules, to address any further consequential or transitional matters that may arise in the transition to the new Act.
• Schedule 3 repeals each of the Aged Care Act 1997, the Aged Care Quality and Safety Commission Act 2018, and the Aged Care (Transitional Provisions) Act 1997 in their entirety.

Background

On 12 September 2024 the Government introduced to Parliament the Aged Care Bill 2024 which, if passed, will provide the framework for a new system of funding and regulating aged care in Australia. The Aged Care Bill responds to many, though not all, of the recommendations of the 2021 report of the Royal Commission into Aged Care Quality and Safety. The Aged Care Bill passed the House on 7 November 2024 and the Senate on 21 November 2024. It needs to return to the House for consideration of the amendments made by the Senate. If finally passed by both Chambers, the new Act will commence on the earlier of proclamation or 1 July 2025.

For detailed information on the Aged Care Bill, and the background to its introduction, see the Parliamentary Library’s bills digest for the Aged Care Bill 2024.

Consequential amendments and transitional provisions providing for the transition to the new Act were not included in the Aged Care Bill 2024. The Government’s aged care reform roadmap states that a bill dealing with consequential amendments and transitional provisions would be introduced in November 2024.

In answer to questioning at the Senate Community Affairs Legislation Committee (the Committee) inquiry into the Aged Care Bill in October 2024, Michael Lye, Deputy Secretary of the Department of Health and Aged Care stated (p. 24):

… we're also developing a consequential and transitional provisions bill which will provide for transitional amendments to ensure existing arrangements and services continue or transition smoothly into new programs … The bill will bring current providers under the new registration and regulatory framework and older people under the new approval and assessment framework to ensure continuity of services when the Aged Care Bill commences. It will also provide for the transition of governance arrangements and provide for grandfathering of individual contributions to the cost of their care and implement the 'no worse off' principle.

Policy position of non-government parties/independents

At the time of writing no statements had been made on the current Bill by the Opposition, minor parties or independents.

Key issues and provisions

Clause 4 provides that, after commencement of the Aged Care Act 2024, references in any other Act to the Aged Care Act 1997, the Aged Care Quality and Safety Commission Act 2018 and the Aged Care (Transitional Provisions) Act 1997, or provisions of those Acts, are taken to be a reference to the Aged Care Act 2024 or an equivalent, or nearly equivalent, provision of it.

Item 2 of Schedule 1 removes references to the Aged Care Act 1997 and the Aged Care Quality and Safety Commission Act 2018 from Schedule 3 of the Freedom of Information Act 1982 (FOI Act) which lists sections of Acts to which secrecy provisions apply – section 38 of the FOI Act makes documents covered by the secrecy provisions exempt from FOI disclosure. This implements recommendation 88(2) of the report of the Aged Care Royal Commission. The Commission considered that the exemption of documents under the secrecy provisions ‘tips the balance too far in favour of unjustifiable non-disclosure’ and that other exemptions under the FOI Act were sufficient for protecting essential interests (p. 469).

Schedule 2 sets out transitional arrangements for managing the move to the new aged care system, in relation to the following elements of the new Act:

• Chapter 2, which deals with approvals for access to aged care services (Part 2 of Schedule 2)
• Chapter 3, in relation to provider registration (Part 3 of Schedule 2)
• Chapter 5, in relation to the establishment of the Aged Care Quality and Safety Commission and the Aged Care Quality and Safety Advisory Council (Part 4 of Schedule 2)
• Chapter 6, in relation to regulatory and compliance matters (Part 5 of Schedule 2)
• Chapter 7, in relation to protected information and retention of records (Part 6 of Schedule 2)
• Chapter 8, in relation to reconsideration and review of decisions, and annual reports (Part 7 of Schedule 2).

Part 10 of Schedule 2 provides the Minister with power to make, by legislative instrument, transitional rules relating to further consequential or transitional matters arising from the transition to the new Act, which have not been provided for in the Bill. The Explanatory Memorandum states that this is ‘necessary to deal with unintended outcomes or unforeseen issues arising through transition from the old Act to the new Act’ (p. 47).