Aged Care (Consequential and Transitional Provisions) Act 2024 (Cth)

Aged Care (Consequential and Transitional Provisions) Act 2024 No. 109, 2024 An Act to deal with consequential and transitional matters arising from the enactment of the Aged Care Act 2024, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules 4 References to the Aged Care Act 1997 etc. Schedule 1—Consequential amendments Crimes Act 1914 Freedom of Information Act 1982 National Disability Insurance Scheme Act 2013 Schedule 2—Application, saving and transitional provisions Part 1—Preliminary Part 2—Transitional provisions for Chapter 2 of the new Act Part 3—Transitional provisions for Chapter 3 of the new Act Division 1—Provider registration Division 2—General information gathering requirements Division 3—Specific information gathering requirements Part 4—Transitional provisions for Chapter 5 of the new Act Division 1—Establishment of the Aged Care Quality and Safety Commission Division 2—Commissioner of the Commission Division 3—Establishment of the Aged Care Quality and Safety Advisory Council Part 5—Transitional provisions for Chapter 6 of the new Act Division 1—Regulatory powers Division 2—Notices to answer questions or give information or documents Division 3—Compliance notices and banning orders Division 4—Sanctions, undertakings and Code of Conduct requirements Part 6—Transitional provisions for Chapter 7 of the new Act Part 7—Transitional provisions for Chapter 8 of the new Act Division 1—Reconsideration and review of decisions Division 2—Annual reports Part 8—Miscellaneous Part 9—Transitional provisions for amendments to the National Disability Insurance Scheme Act 2013 Part 10—Transitional rules Schedule 3—Repeals Aged Care Act 1997 Aged Care Quality and Safety Commission Act 2018 Aged Care (Transitional Provisions) Act 1997 Aged Care (Consequential and Transitional Provisions) Act 2024 No. 109, 2024 An Act to deal with consequential and transitional matters arising from the enactment of the Aged Care Act 2024, and for related purposes [Assented to 10 December 2024] The Parliament of Australia enacts: 1 Short title This Act is the Aged Care (Consequential and Transitional Provisions) Act 2024. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 4 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 10 December 2024 2. Schedules 1 to 3 At the same time as the Aged Care Act 2024 commences. However, the provisions do not commence at all if that Act does not commence. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 4 References to the Aged Care Act 1997 etc. (1) Subsection (2) applies if, after the commencement of the Aged Care Act 2024, another Act refers to any of the following: (a) the Aged Care Act 1997; (b) a provision of that Act; (c) the Aged Care Quality and Safety Commission Act 2018; (d) a provision of that Act; (e) the Aged Care (Transitional Provisions) Act 1997; (f) a provision of that Act. (2) The reference is taken, after that commencement, to be a reference to the following (as the case requires): (a) the Aged Care Act 2024; (b) an equivalent, or nearly equivalent, provision of that Act. (3) Subsection (2) is subject to a contrary intention. (4) Subsection (5) applies if, after the commencement of the Aged Care Act 2024, another Act refers to: (a) Principles made under section 96‑1 of the Aged Care Act 1997; or (b) a provision of those Principles. (5) The reference is taken, after that commencement, to be a reference to the following (as the case requires): (a) the rules within the meaning of the Aged Care Act 2024; (b) an equivalent, or nearly equivalent, provision of those rules. (6) Subsection (5) is subject to a contrary intention. Schedule 1—Consequential amendments Crimes Act 1914 1 After Subdivision AA of Division 6 of Part VIIC Insert: Subdivision AB—Exclusions relating to work with individuals accessing funded aged care services 85ZZGO Object of Subdivision The object of this Subdivision is to protect 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 such an individual. 85ZZGP Exclusion: disclosing information to a person or body Divisions 2 and 3 do not apply in relation to the disclosure of information to a prescribed person or body if: (a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed 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 (b) the disclosure is for the purpose of the person or body obtaining and dealing with such information in accordance with the prescribed law. 85ZZGQ Exclusion: person or body taking information into account Divisions 2 and 3 do not apply in relation to the taking into account of information by a prescribed person or body if: (a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with an individual accessing funded aged care services; and (b) the taking into account is: (i) for the purpose of dealing with such information in accordance with the prescribed law; or (ii) required by or under a Commonwealth law, a State law or a Territory law. 85ZZGR Exclusion: person or body disclosing information Divisions 2 and 3 do not apply in relation to the disclosure of information by a prescribed person or body if: (a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with an individual accessing funded aged care services; and (b) the disclosure is required by or under a Commonwealth law, a State law or a Territory law. 85ZZGS Prescribed persons and bodies Before the Governor‑General makes a regulation prescribing, for the purposes of section 85ZZGP, 85ZZGQ or 85ZZGR, a person or body: (a) to which information may be disclosed; or (b) by which information may be taken into account or disclosed; the Minister must be satisfied that the person or body: (c) 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 (d) complies with applicable Commonwealth law, State law or Territory law relating to privacy, human rights and records management; and (e) complies with the principles of natural justice; and (f) has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of an individual accessing funded aged care services. 85ZZGT Definitions In this Subdivision: funded aged care service has the same meaning as in the Aged Care Act 2024. work includes the following: (a) work: (i) under a contract of employment, contract of apprenticeship or contract for services; or (ii) in a leadership role in a religious institution, as part of the duties of a religious vocation or in any other capacity for the purposes of a religious institution; or (iii) as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; or (iv) as a volunteer, other than unpaid work engaged in for a private or domestic purpose; or (v) as a self‑employed person; (b) practical training as part of a course of education or vocational training; (c) acting in a prescribed capacity or engaging in a prescribed activity. Freedom of Information Act 1982 2 Schedule 3 Omit: Aged Care Act 1997, subsection 86‑2(1) and sections 86‑5, 86‑6 and 86‑7. Aged Care Quality and Safety Commission Act 2018, subsection 60(1) and section 62 National Disability Insurance Scheme Act 2013 3 Section 9 Insert: aged care clearance decision has the same meaning as in the Aged Care Act 2024. aged care exclusion decision has the same meaning as in the Aged Care Act 2024. aged care worker screening check has the same meaning as in the Aged Care Act 2024. aged care worker screening law has the same meaning as in the Aged Care Act 2024. funded aged care service has the same meaning as in the Aged Care Act 2024. registered aged care provider means a registered provider within the meaning of the Aged Care Act 2024. 4 Subparagraph 67A(1)(da)(i) After "check", insert "or aged care worker screening check". 5 Subparagraph 67A(1)(da)(ii) After "law", insert "or aged care worker screening law". 6 After paragraph 67A(1)(da) Insert: (daa) the disclosure or use of the information by the person is made for the purposes of complying with the worker screening requirements prescribed by rules made for the purposes of section 152 of the Aged Care Act 2024; or 7 Paragraph 181Y(3)(c) Repeal the paragraph, substitute: (c) to share information in the database: (i) with persons or bodies (including employers and potential employers) for the purposes of the National Disability Insurance Scheme; or (ii) with the Commissioner of the Aged Care Quality and Safety Commission for the purposes of assisting the Commissioner to perform the Commissioner's functions or exercise the Commissioner's powers; or (iii) with registered aged care providers that are employers, or potential employers, of persons; or (iv) with persons or bodies (whether the persons or bodies are registered aged care providers or not) for the purposes of the Aged Care Act 2024 or 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; 8 After subsection 181Y(6) Insert: (6A) The NDIS worker screening database may also include the following information: (a) information relating to persons (each of whom is a screening applicant) who: (i) have made applications (each of which is a screening application) for an aged care worker screening check; and (ii) are identified (in screening applications or otherwise) as seeking to work with people with disability; and information relating to those applications; (b) information relating to each screening applicant in respect of whom a screening application is no longer being considered and the reasons for this; (c) 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; (d) 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; (e) 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; (f) if a clearance decision or an exclusion decision specifies the period for which the decision is in force—information setting out that period; (g) 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; (h) 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; (i) information relating to employers or potential employers of persons who have made screening applications. 9 Subsection 181Y(7) After "(j)", insert "and (6A)(a) to (i)". 10 After section 181Y Insert: 181Z Aged care clearance decision taken to be NDIS clearance decision (1) This section applies if an aged care clearance decision is in force, under an aged care worker screening law, in respect of a person in working, or seeking to work, with individuals accessing funded aged care services. (2) The aged care clearance decision in respect of the person is taken, for the purposes of this Act (other than this Chapter), to be an NDIS clearance decision in force, under an NDIS worker screening law, in respect of the person in working, or seeking to work, with people with disability. 181ZA Aged care exclusion decision taken to be NDIS exclusion decision (1) This section applies if an aged care exclusion decision is in force, under an aged care worker screening law, in respect of a person in working, or seeking to work, with individuals accessing funded aged care services. (2) The aged care exclusion decision in respect of the person is taken, for the purposes of this Act (other than this Chapter), to be an NDIS exclusion decision in force, under an NDIS worker screening law, in respect of the person in working, or seeking to work, with people with disability. Schedule 2—Application, saving and transitional provisions Part 1—Preliminary 1 Definitions (1) In this Schedule: Commission Act means the Aged Care Quality and Safety Commission Act 2018. Commission Rules means the Aged Care Quality and Safety Commission Rules 2018. new Act means the Aged Care Act 2024. old Act means the Aged Care Act 1997. old law means any of the following laws: (a) the old Act; (b) the Commission Act; (c) the old Transitional Provisions Act; (d) the old Principles; (e) the Commission Rules; (f) the old Transitional Provisions Principles. old Principles means Principles made under section 96‑1 of the old Act. old Transitional Provisions Act means the Aged Care (Transitional Provisions) Act 1997. old Transitional Provisions Principles means Principles made under section 96‑1 of the old Transitional Provisions Act. transitional rules means the rules made under item 65. transition time means the time the new Act commences. (2) An expression used in a provision of this Schedule and in the new Act has the same meaning in that provision as it has in the new Act, subject to subitem (3). (3) An expression used in a provision of this Schedule and in the old law has the same meaning in that provision as it had in the old law to the extent that: (a) 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 (b) 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 2 Access approvals for service groups home support, assistive technology and home modifications Access approvals and related decisions (1) The System Governor is taken to have made the following decisions at the transition time, in relation to an individual to whom subitem (2) applies: (a) an eligibility determination under subsection 57(1) of the new Act; (b) a decision under subsection 65(1) of the new Act that the individual requires access to funded aged care services; (c) for an individual referred to in paragraph (2)(a) or (e) of this item—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following: (i) the classification type ongoing for the service group home support; (ii) the classification type short‑term for the service group assistive technology; (iii) the classification type short‑term for the service group home modifications; (d) for an individual referred to in paragraph (2)(b) of this item—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following: (i) the classification type short‑term for the service group home support; (ii) the classification type short‑term for the service group assistive technology; (iii) the classification type short‑term for the service group home modifications; (e) for an individual referred to in paragraph (2)(c) of this item—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following: (i) the classification type hospital transition for the service group home support; (ii) the classification type hospital transition for the service group assistive technology; (f) for an individual referred to in paragraph (2)(d) or (f) of this item—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following: (i) the classification types ongoing and short‑term for the service group home support; (ii) the classification type short‑term for the service group assistive technology; (iii) the classification type short‑term for the service group home modifications; (g) for an individual referred to in paragraph (2)(g) of this item—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; (h) for an individual referred to in any paragraph in subitem (2) of this item and who is not an Aboriginal or Torres Strait Islander person: (i) 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; and (ii) 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 (2) This subitem applies to the individual if, as at immediately before the transition time, the individual: (a) was approved under section 22‑1 of the old Act as a recipient of home care; or (b) 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 (c) 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 (d) either: (i) was accessing flexible care provided in a community setting through a multi‑purpose service (within the meaning of the old Principles); or (ii) 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 flexible care provided in a community setting through that service within the period of 3 months beginning at the transition time; or (e) had been assessed as eligible for Commonwealth Home Support Programme services; or (f) had, at any time in the previous 12 months, accessed services under the National Aboriginal and Torres Strait Islander Flexible Aged Care Program; or (g) was in a class of individuals determined under subitem (3) by the System Governor to be a transitional cohort. (3) The System Governor may, by legislative instrument, determine a class of individuals to be a transitional cohort for the purposes of paragraph (2)(g) if: (a) 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 (b) the System Governor considers it reasonably necessary to make the determination to ensure continuity of aged care for those individuals. (4) A determination under subitem (3) may be made after the transition time. Limitations on funded aged care services to which transition applies for individuals eligible for Commonwealth Home Support Programme (5) Despite subparagraph (1)(h)(i), that subparagraph does not apply in relation to an individual to whom paragraph (2)(e) applies and a service type (a new Act service type) referred to in that subparagraph unless the individual had been assessed as eligible under the Commonwealth Home Support Programme for a service type that corresponds as nearly as possible to the new Act service type. Limitations on funded aged care services to which transition applies for individuals who are not Aboriginal or Torres Strait Islander persons (6) Despite subparagraph (1)(h)(i) or (ii), that subparagraph 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: (a) 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 (b) any of the following apply: (i) 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 funded aged care services in the service type, or the funded aged care service, is necessary to support the individual to live and be included in the community, and to prevent isolation or segregation of the individual from the community; (ii) 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 manner and at the time of the individual's choice; (iii) the funded aged care services in the service type each involve, or the funded aged care service involves, a mobility aid or device, or assistive technology, live assistance or intermediaries that will facilitate personal mobility of the individual; (iv) the funded aged care services in the service type are each, or the funded aged care service is, a health service that the individual needs because of the individual's impairment or because of the interaction of the individual's impairment with various barriers; (v) the funded aged care services in the service type are each, or the funded aged care service is, a habilitation or rehabilitation service; (vi) the funded aged care services in the service type are each, or the funded aged care service is, a service that will assist the individual to access a service mentioned in subparagraph (iv) or (v); (vii) the funded aged care services in the service type, or the funded aged care service, will minimise the prospects of the individual acquiring a further impairment or prevent the individual from acquiring a further impairment; (viii) the funded aged care services in the service type are each, or the funded aged care service is, a medical service required by the individual because of sickness. (7) For the purposes of paragraph (6)(a), an impairment may be long‑term despite the fact it is episodic, fluctuating or varying in intensity over time. 3 Access approvals for service group residential care (1) The System Governor is taken to have made the following decisions at the transition time, in relation to an individual to whom subitem (2) applies: (a) an eligibility determination under subsection 57(1) of the new Act; (b) a decision under subsection 65(1) of the new Act that the individual requires access to funded aged care services; (c) a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following: (i) if paragraph (2)(a) of this item applies to the individual—the classification type ongoing for the service group residential care; (ii) if paragraph (2)(b) of this item applies to the individual—the classification type short‑term for the service group residential care; (iii) if paragraph (2)(c), (e) or (f) of this item applies to the individual—the classification types ongoing and short‑term for the service group residential care; (iv) if paragraph (2)(d) of this item applies to the individual—the classification type hospital transition for the service group residential care. (2) This subitem applies to the individual if, as at immediately before the transition time: (a) 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 (b) 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 (c) 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 (d) 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 (e) subitem (3) applies in relation to the individual and the individual was: (i) accessing flexible care provided in a residential setting through a multi‑purpose service (within the meaning of the old Principles); or (ii) 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 flexible care provided in a residential setting through that service within the period of 3 months beginning at the transition time; or (f) the individual had, at any time in the previous 12 months, received services under the National Aboriginal and Torres Strait Islander Flexible Aged Care Program. (3) This subitem 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. 4 Classification levels, priority category and place allocation decisions (1) The System Governor must determine, by legislative instrument, for one or more classes of individuals to whom subitem 2(2) applies, the following: (a) 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 subitem 2(1); (b) 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; (c) 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 for the service group. (2) The System Governor must determine, by legislative instrument, for one or more classes of individuals to whom subitem 3(2) applies, the following: (a) 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 subitem 3(1); (b) 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 5 Registration of entities Deeming of registered providers (1) The following entities (within the meaning of the new Act) are taken, at the transition time, to be registered as a registered provider under paragraph 105(1)(a) of the new Act: (a) an entity that is, immediately before the transition time, an approved provider within the meaning of section 7 of the Commission Act; (b) an entity that is, immediately before the transition time, the holder of an approval under section 63D of the Commission Act that is suspended under section 63N of that Act. (2) Despite subitem (1), that subitem does not apply in relation to an entity if the System Governor determines, in accordance with any determination made under subitem (14), that the entity is an inactive provider because the entity had not, before the transition time, claimed subsidy (within the meaning of the old Act) for a period of time that the System Governor considers significant. Registration period (3) For the purposes of subitem (1), the entity's registration period for the purposes of section 115 of the new Act is taken to be the period, of no less than 3 months and no more than 3 years and 3 months, determined, in accordance with any determination made under subitem (14), by the System Governor to be appropriate for the provider. (4) Before making a determination under subitem (3), the System Governor must seek, and take into account, the advice of the Commissioner. (5) In providing advice for the purposes of subitem (4), the Commissioner must have regard to: (a) the recency of any audits conducted under the Commission Act in relation to the entity; and (b) the desirability of ensuring a smooth sequence of audits conducted under section 110 of the new Act. Registration categories (6) For the purposes of subitem (1), the entity is, for the purposes of paragraph 105(1)(a) of the new Act, taken to be registered in the registration categories determined by the System Governor (in accordance with any determination made under subitem (14)) to be appropriate for the entity having regard to the following: (a) 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; (b) any types of aged care the entity was, immediately before the transition time, approved to provide under section 63D of the Commission Act; (c) any services covered in an agreement between the entity and the Commonwealth that was in effect immediately before the transition time; (d) any types of aged care or services the entity had actually provided to individuals in the period of 12 months ending at the transition time. Residential care homes and service delivery branches (7) For the purposes of subitem (1)