Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on the sheet revised 4 November 2024, as circulated in my name together:

(1) Clause 600, page 540 (line 25), omit "31 January 2029", substitute "the third anniversary of the commencement of this Act".

(2) Clause 600, page 540 (line 29), omit "no later than 31 March 2030", substitute "within 15 sitting days of that House after the report is given to the Minister".

Providers will newly be able to charge a maximum refundable deposit for residential aged care of $750,000 indexed over time, up from $550,000, without seeking separate regulatory approval. Depending on when each person enters aged care, a couple could be required to pay deposits of up to $1.5 million between them, as well as significant ongoing fees for each person.

I won't detain the House for too long, but I would just like it to make it clear that this will have profound impacts on people's lives. My constituent, Betty, whose husband is living with dementia has written to me. She said: 'Many people have mentioned that my husband should be in a nursing home, and I realise that this will be necessary, but I cope as long as I can. My concern is that the ridiculously high entrance cost proposed will force carers, many women like me, to struggle on as a carer at home, largely invisible. To me, this is a feminist argument—a carer role for children and then for aged relatives, with a token reward. I've been saving hard to have the nursing home upfront fee, but there's no way I could save $750,000. This is a ridiculously high amount. I don't have to pay, apart from private insurance, when he is in hospital, as he is ill. I can't see a difference, to be honest. It is not a universal service that we will all use when we are deemed old. It is for those who need specialist care. It's not a hotel. Comparisons of that with being the normal cost of living is highly offensive. I also wonder if I should place him in a nursing home earlier rather than later, before July next year, which is very soon, as soon as he comes under the new rules—a cruel decision to have to make.'

I note that if Betty and her husband were able to save the $750,000, which is what it potentially could be—this will no doubt, I think, become the default minimum refundable deposit—it will be expended on her husband's refundable deposit. This will likely leave Betty with few savings should she later require high-level care, and I suspect, as Betty has said to my office, that this burden will be borne predominantly by women. I think this is very true.

Over a five-year period, at a conservative six per cent rate, a provider of residential aged care will earn $253,669 in compound interest on the refundable deposit of $750,000, and providers will newly be permitted to retain two per cent of that refundable deposit. That's up to $75,000. So, as well as the compound interest, we're looking at a contribution of potentially $328,000. The parliament is being asked to provide a huge windfall for operators on an understanding that the additional capital will be spent and maintained on improving facilities, but it's not exactly clarified exactly how the government intends to monitor that. What we need to make sure is that it's not spent on Lamborghinis or Birkin bags—and we have seen media reports of that—and that it's actually spent on improving facilities. That is why I am moving these amendments. I commend these amendments to the House.

Anika Wells (Lilley, Australian Labor Party, Minister for Aged Care) Share this | Link to this | Hansard source

I thank the member for Mayo for her genuine and ongoing advocacy for older Australians, particularly in the electorate of Mayo. I confirm that the government supports the amendment with respect to the act review. This bill will deliver once-in-a-generation reform that will have a profound impact on the lives of older Australians and their families and carers, aged-care workers and providers. We agree it's important that the review into the operation of the act is brought forward to ensure that it is delivering on its intended purpose, to create a forward-looking aged-care system that upholds the rights of older Australians receiving aged-care services.

Aside from the member for Mayo, who has worked tirelessly in this space for many, many years, I also recognise the stakeholders who have advocated for this amendment in particular, including National Seniors Australia, the Older Persons Advocacy Network, Council on the Ageing, Dementia Australia, Carers Australia, Catholic Health Australia, Australian College of Nursing and Wongaburra, an aged-care provider in Beaudesert in the electorate of Wright. I note this was also a recommendation put by the opposition in the community affairs committee report on the bill.

Question negatived.

Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

by leave—I move amendments (3) and (4) on the sheet revised 4 November 2024, as circulated in my name, together:

(3) Clause 601, page 541 (line 3), omit "fifth", substitute "third".

(4) Clause 601, page 541 (after line 4), after subclause (1), insert:

(1A) Without limiting subsection the matters to be covered by the review, the review must:

(a) have regard to the objects of the Act; and

(b) consider the following matters:

(i) the operation of the Statement of Rights and the Statement of Principles;

(ii) the effectiveness of the Act in delivering the objects, including enabling individuals to exercise choice and control;

(iii) the effectiveness of the Act in embedding the role of supporters in the aged care system;

(iv) the extent of unmet demand for funded aged care services in a home or community setting;

(v) the duration of waiting periods from application to service commencement for funded aged care services in a home or community setting;

(vi) the effectiveness of the governance (under Chapter 5) and regulatory mechanisms (under Chapter 6) of the aged care system in overseeing and ensuring the quality of funded aged care services;

(vii) the effectiveness of the Act in ensuring equitable access to funded aged care services for individuals, regardless of their location, background and life experience;

(viii) the effect of Part 3 of Chapter 4 (about individual fees and contributions) on the sustainability of the aged care system, service usage and outcomes for individuals accessing funded aged care services;

(ix) the use of refundable accommodation deposits and daily accommodation payments;

(x) the proportion of aged care accommodation payments being charged at the maximum accommodation payment amounts;

(xi) the proportion of registered providers who charge an accommodation payment approved under section 290 (that is, an approved accommodation payment that is higher than the maximum accommodation payment amount);

(xii) the quality and timeliness of data published about the performance of the aged care system.

This relates to clause 601, the statutory review. I have heard from key stakeholders, including National Seniors and Council of the Ageing, that the planned mechanisms for statutory review of the act after five years of operation are insufficient and too distant into the future. I've therefore moved amendments (3) and (4) in my name to require review of the operation of the act within six months after the third anniversary of the commencement of the act, with a report to the parliament to be tabled within 15 sitting days of the report being given to the minister.

I've also consulted with Council of the Ageing, COTA, regarding the inclusion of proposed terms of reference for the act's statutory review being an inclusive rather than exclusive list of matters required to be considered on review based on stakeholder feedback. They include the effectiveness of the act in delivering objects, including choice and control, for individuals; receiving funding for aged-care services; whether the act has been successful in embedding rights, principles and supported decision-making as the foundations of aged care delivered in Australia; whether the level of support and greater investment in support at home has improved access and reduced waiting times for individuals to receive care; the effectiveness of arrangements for regulation and governance of aged care; and the impact on ensuring the quality of funded aged-care services.

In the context of once-in-a-generation reform in the aged-care system coming out of a once-in-a-generation—we hope—royal commission, with huge impacts on older Australians' rights and the quality and cost of care, the importance cannot be overemphasised of building a meaningful statutory review to ensure that the effectiveness of the scheme is rigorously assessed so that improvements can be identified and promptly implemented when needed. I commend these amendments to the House.

Anika Wells (Lilley, Australian Labor Party, Minister for Aged Care) Share this | Link to this | Hansard source

I thank the member for Mayo for her ongoing advocacy. I note, with respect to RAD reviews, we have committed to a phase-out of refundable accommodation deposits by 2035, following a review of sector readiness for this transition, which will be in 2029-30. The Aged Care Taskforce, which brought together aged-care stakeholders, experts and providers, found that time is needed to manage the transition away from refundable accommodation deposits and that a review should be undertaken in 2030. A change in the timeframe as recommended by the taskforce was not a key issue identified in the Senate Community Affairs Legislation Committee report on the Aged Care Bill.

With respect to the act review, we do agree it's important. We think the member for Mayo is correct on this. We think the review into the operation of the act can be brought forward to ensure it is delivering on its intended purpose to create a forward-looking aged-care system that will uphold the rights of older Australians receiving aged-care services. It was also a recommendation put forward by the opposition in the community affairs committee report on the bill. I thank the member for Mayo.

Question agreed to.

Sophie Scamps (Mackellar, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) as circulated in my name together:

(1) Clause 5, page 3 (line 3), after "Cultural Rights", insert ", the International Covenant on Civil and Political Rights".

(2) Clause 7, page 14 (after line 2), after the definition of cost, insert:

Covenant on Civil and Political Rights means the International Covenant on Civil and Political Rights done at New York on 16 December 1966.

Note: The Covenant is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2024 be viewed in the Australian Treaties Library on 7 the AustLII website (http://www.austlii.edu.au).

The amendments I am introducing today go to the objects of the Aged Care Bill 2024. Section 15AA of the Acts Interpretation Act provides that statutes should be interpreted in accordance with their objects and that all other provisions of the bill are to be read as far as is possible as being designed to carry out these objects.

There can be no understating, therefore, of the importance of getting the objects provisions in the legislation right. Currently the bill's objects clause states, among other things, the objects are to:

give effect to Australia's obligations under the International Covenant on Economic, Social and Cultural Rights—

the ICESCR—

and the Convention on the Rights of Persons with Disabilities—

the CRPD. However, there is no reference in the objects to the International Covenant on Civil and Political Rights. The explanatory memorandum to the bill states:

This is because the objects specify only those conventions that the Bill upholds in reference to the External Affairs power, but it does not mean that the Bill does not endeavour to uphold these other international conventions.

Basically, the bill only includes those international human rights treaties that the minister considers relevant to the constitutional authority of the Aged Care Bill.

The Law Council takes a different view. In its submission on the bill's exposure draft, the Law Council queried the department's assessment that only the ICESCR and the CRPD are relevant to provide the constitutional foundation for the Aged Care Bill and to manage associated legal risk. The Law Council went on to say that various provisions in the bill may carry the risk that they do not have a proper constitutional foundation because there may not be a proper foundation for them in the Convention on the Rights of Persons with Disabilities. These include the right to be free from all forms of violence, neglect or abuse and the right to be treated with dignity. Only half of Australians over the age of 65 are living with a disability. To rely only on a treaty relating to disability to give the bill its constitutional foundation is a risk.

The International Covenant on Civil and Political Rights, on the other hand, applies to all persons and will eliminate this risk if incorporated into the bill. After all, the report of the aged care royal commission described aged care in Australia as 'a sad and shocking system that diminishes Australia as a nation' and said it tells a 'shocking tale of neglect'. It was the royal commission report that shocked the nation. The ICCPR is a foundational international human rights treaty, and it needs to be incorporated into what is, after all, a bill which seeks to establish a rights based framework for the older Australian.

Since publishing this amendment yesterday I've been contacted by Australia's Council on the Ageing, COTA Australia, expressing their appreciation for it. In their view, it will bolster the scope of powers the act sits upon. If we do truly want a bill that is based firmly on the rights of all older Australians, I ask for all my colleagues in this House to support this simple yet commonsense amendment.

Anika Wells (Lilley, Australian Labor Party, Minister for Aged Care) Share this | Link to this | Hansard source

I thank the member for Mackellar for her amendment. As she is a former emergency department doctor and GP, I know she is acutely aware of the importance of ensuring that older Australians can access high-quality health and aged-care services. I acknowledge her intention on tabling this amendment is for the bill to give effect to Australia's obligations under the International Covenant on Civil and Political Rights. However, the government doesn't support the amendment. To make the constitutional basis for this legislation clear, the objects specify only the international conventions relevant to the external affairs power: the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities. That doesn't mean that aged care does not endeavour to uphold other international conventions, including the International Covenant on Civil and Political Rights, the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations declaration on the rights of Indigenous peoples.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Mackellar be agreed to.

Question negatived.

Anika Wells (Lilley, Australian Labor Party, Minister for Aged Care) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill I move government amendments (1) to (65) on sheet TH111:

(1) Clause 7, page 6 (after line 11), after the definition of accommodation agreement, insert:

accommodation bond means an accommodation bond within the meaning of the old Act in relation to an individual that was paid or payable by the individual immediately before the transition time.

accommodation charge means an accommodation charge within the meaning of the old Act in relation to an individual that was paid or payable by the individual immediately before the transition time.

(2) Clause 7, page 18 (after line 6), after the definition of health service, insert:

home care account, for an individual: see section 226E.

(3) Clause 7, page 21 (line 5), omit the definition of means not disclosed status, substitute:

means not disclosed status:

(a) for an individual accessing funded aged care services in a home or community setting—see section 314A; and

(b) for an individual accessing funded aged care services in an approved residential care home—see section 320.

(4) Clause 7, page 23 (after line 6), after the definition of official of the Pricing Authority, insert:

old Act means the Aged Care Act 1997.

(5) Clause 7, page 31 (after line 6), after the definition of Transition Care Program, insert:

transition time means the time this Act commences.

(6) Clause 7, page 31 (after line 8), after the definition of unit price, insert:

unspent care recipient portion, for an individual: see section 273A.

unspent Commonwealth portion, for an individual: see section 226A.

(7) Page 192 (after line 19), at the end of Division 3, add:

186A Protection of compensation

(1) For the purposes of any provision of this Act (other than section 186) and any other legislation of the Commonwealth or of a State or a Territory, a payment of compensation to an individual under section 186 is not to be treated as being a payment of compensation or damages.

Note: This subsection prevents a compensation payment affecting other payments that may be payable to the person under legislation.

(2) Nothing in this Act prevents a liability insurance contract from treating a payment of compensation under section 186 as being a payment of compensation or damages.

(8) Clause 191, page 199 (line 1), at the end of subclause (2), add:

; and (i) the registered provider has agreed to deal with the individual's unspent Commonwealth portion (if any) in accordance with Division 3A.

(9) Clause 192, page 199 (line 12) to page 200 (line 10) (method statement), omit the method statement, substitute:

Method statement

Step 1. Work out the following:

(a) if the subsidy basis for the service is efficient price or unit price—multiply theprice charged by the provider to the individual for an hour or unit of the service (whichever is applicable) by the number of hours or units of the servicedelivered to the individual on the day;

(b) if the subsidy basis for the service is cost—the cost.

Step 2. Reduce the amount worked out under Step 1 by the sum of any reduction amounts for the classification type for the service group that apply to the individual. This is the provisional subsidy amount.

Step 3. Work out:

(a) the available balance of the individual's ongoing home support account on the day in accordance with section 193, taking into account any claims already debited from that account in accordance with that section on that day; and

(b) the available balance of the individual's unspent Commonwealth portion held by the provider (if any) on the day in accordance with section 226A, taking into account any amounts already debited from that portion in accordance with that section on that day; and

(c) the available balance of the individual's home care account (if any) on the day in accordance with section 226E, taking into account any claims already debited from that account in accordance with that section on that day.

Step 4. Reduce the provisional subsidy amount by any amount (the excess amount) by which the provisional subsidy amount exceeds the available balance of the individual's ongoing home support account.

Step 5. Reduce (but not below zero) the excess amount by the available balance of the individual's unspent Commonwealth portion held by the provider (if any). This is the remaining amount.

Step 6. If the remaining amount is not zero, reduce the remaining amount by any amount by which the remaining amount exceeds the available balance of the individual's home care account (if any).

Step 7. Work out the sum of:

(a) the amount worked out under Step 4; and

(b) the amount worked out under Step 6; and

(c) any secondary person-centred supplements for the classification type ongoing for the service group home support that apply to the individual for the day.

The result is the amount of subsidy payable to the registered provider for the individual for the service for the day.

(10) Clause 192, page 200 (line 16) to page 201 (line 15) (method statement), omit the method statement, substitute:

Method statement

Step 1. Work out the following:

(a) if the subsidy basis for the service is efficient price or unit price—multiply theprice charged by the provider to the individual for an hour or unit of the service (whichever is applicable) by the number of hours or units of the servicedelivered to the individual on the day;

(b) if the subsidy basis for the service is cost—the cost.

Step 2. Reduce the amount worked out under Step 1 by the sum of any reduction amounts for the classification type for the service group that apply to the individual. This is the provisional subsidy amount.

Step 3. Work out:

(a) the available balance of the individual's short-term home support account on the day in accordance with section 195, taking into account any claims already debited from that account in accordance with that section on that day; and

(b) the available balance of the individual's unspent Commonwealth portion held by the provider (if any) on the day in accordance with section 226A, taking into account any amounts already debited from that portion in accordance with that section on that day; and

(c) the available balance of the individual's home care account (if any) on the day in accordance with section 226E, taking into account any claims already debited from that account in accordance with that section on that day.

Step 4. Reduce the provisional subsidy amount by any amount (the excess amount) by which the provisional subsidy amount exceeds the available balance of the individual's short-term home support account.

Step 5. Reduce (but not below zero) the excess amount by the available balance of the individual's unspent Commonwealth portion held by the provider (if any). This is the remaining amount.

Step 6. If the remaining amount is not zero, reduce the remaining amount by any amount by which the remaining amount exceeds the available balance of the individual's home care account (if any).

Step 7. Work out the sum of:

(a) the amount worked out under Step 4; and

(b) the amount worked out under Step 6; and

(c) any secondary person-centred supplements for the classification type short-term for the service group home support that apply to the individual for the day.

The result is the amount of subsidy payable to the registered provider for the individual for the service for the day.

(11) Clause 197, page 206 (line 16), omit "that".

(12) Clause 197, page 206 (line 22), after "paragraph (a)", insert "of this subsection".

(13) Clause 197, page 206 (line 23), at the end of subclause (3), add:

; and (c) that the fee reduction supplement and the matters set out in paragraphs (a) and (b) of this subsection may be set by a determination made by the System Governor, and that the determination may include a limited period for which the supplement is payable.

(14) Clause 205, page 211 (line 11), after "registered provider", insert "in relation to an individual".

(15) Clause 209, page 213 (line 31), at the end of subclause (2), add:

; and (i) the registered provider has agreed to deal with the individual's unspent Commonwealth portion (if any) in accordance with Division 3A.

(16) Clause 210, page 214 (line 11) to page 215 (line 9) (method statement), omit the method statement, substitute:

Method statement

Step 1. Work out the following:

(a) if the subsidy basis for the service is efficient price or unit price—multiply theprice charged by the provider to the individual for an hour or unit of the service (whichever is applicable) by the number of hours or units of the servicedelivered to the individual on the day;

(b) if the subsidy basis for the service is cost—the cost.

Step 2. Reduce the amount worked out under Step 1 by the sum of any reduction amounts for the classification type for the service group that apply to the individual. This is the provisional subsidy amount.

Step 3. Work out:

(a) the available balance of the individual's unspent Commonwealth portion held by the provider (if any) on the day in accordance with section 226A, taking into account any amounts already debited from that portion in accordance with that section on that day; and

(b) the available balance of the individual's home care account (if any) on the day in accordance with section 226E, taking into account any claims already debited from that account in accordance with that section on that day; and

(c) the available balance of the individual's notional assistive technology account on the day in accordance with section 211, taking into account any claims already debited from that account in accordance with that section on that day.

Step 4. Reduce (but not below zero) the provisional subsidy amount by the available balance of the individual's unspent Commonwealth portion held by the provider (if any).

Step 5. If the amount worked out under Step 4 is not zero, reduce the amount by any amount (the excess amount) by which the amount exceeds the available balance of the individual's home care account (if any).

Step 6. Reduce the excess amount by any amount by which the excess amount exceeds the available balance of the individual's notional assistive technology account.

Step 7. Work out the sum of:

(a) the amount worked out under Step 5; and

(b) the amount worked out under Step 6; and

(c) any secondary person-centred supplements for the classification type ongoing or short-term for the service group assistive technology that apply to the individual for the day.

The result is the amount of subsidy payable to the registered provider for the individual for the service for the day.

(17) Clause 211, page 215 (after line 30), after subclause (4), insert:

(4A) If the account was established for the individual for the classification type short-term for the service group, at the start of a day prescribed by the rules the amount prescribed by the rules is credited to the account.

(18) Clause 211, page 216 (lines 13 and 14), omit "worked out at step 1 of the method statement in section 210 for each of those claims.", substitute:

worked out as follows for each of those claims:

(a) first, take the amount worked out under Step 1 of the method statement in section 210 for the claim;

(b) then reduce the amount referred to in paragraph (a) of this subsection by the sum of:

(i) the available balance of the individual's unspent Commonwealth portion held by the registered provider (if any) on that day in accordance with section 226A, taking into account any amounts already debited from that portion in accordance with that section on that day; and

(ii) the available balance of the individual's home care account (if any) on that day in accordance with section 226E, taking into account any claims already debited from that account in accordance with that section on that day.

(19) Clause 212, page 216 (lines 24 and 25), omit "the classification type", substitute "a classification type".

(20) Clause 214, page 217 (line 21), omit "that".

(21) Clause 214, page 217 (line 27), after "paragraph (a)", insert "of this subsection".

(22) Clause 214, page 217 (line 28), at the end of subclause (3), add:

; and (c) that the fee reduction supplement and the matters set out in paragraphs (a) and (b) of this subsection may be set by a determination made by the System Governor, and that the determination may include a limited period for which the supplement is payable.

(23) Clause 218, page 219 (line 31), at the end of subclause (2), add:

; and (i) the registered provider has agreed to deal with the individual's unspent Commonwealth portion (if any) in accordance with Division 3A.

(24) Clause 219, page 220 (line 11) to page 221 (line 9) (method statement), omit the method statement, substitute:

Method statement

Step 1. Work out the following:

(a) if the subsidy basis for the service is efficient price or unit price—multiply theprice charged by the provider to the individual for an hour or unit of the service (whichever is applicable) by the number of hours or units of the servicedelivered to the individual on the day;

(b) if the subsidy basis for the service is cost—the cost.

Step 2. Reduce the amount worked out under Step 1 by the sum of any reduction amounts for the classification type for the service group that apply to the individual. This is the provisional subsidy amount.

Step 3. Work out:

(a) the available balance of the individual's unspent Commonwealth portion held by the provider (if any) on the day in accordance with section 226A, taking into account any amounts already debited from that portion in accordance with that section on that day; and

(b) the available balance of the individual's home care account (if any) on the day in accordance with section 226E, taking into account any claims already debited from that account in accordance with that section on that day; and

(c) the available balance of the individual's notional home modifications account on the day in accordance with section 220, taking into account any claims already debited from that account in accordance with that section on that day.

Step 4. Reduce (but not below zero) the provisional subsidy amount by the available balance of the individual's unspent Commonwealth portion held by the provider (if any).

Step 5. If the amount worked out under Step 4 is not zero, reduce the amount by any amount (the excess amount) by which the amount exceeds the available balance of the individual's home care account (if any).

Step 6. Reduce the excess amount by any amount by which the excess amount exceeds the available balance of the individual's notional assistive technology account.

Step 7. Work out the sum of:

(a) the amount worked out under Step 5; and

(b) the amount worked out under Step 6; and

(c) any secondary person-centred supplements for the classification type ongoing or short-term for the service group home modifications that apply to the individual for the day.

The result is the amount of subsidy payable to the registered provider for the individual for the service for the day.

(25) Clause 220, page 222 (lines 7 and 8), omit "worked out at step 1 of the method statement in section 219 for each of those claims.", substitute:

worked out as follows for each of those claims:

(a) first, take the amount worked out under Step 1 of the method statement in section 219 for the claim;

(b) then reduce the amount referred to in paragraph (a) of this subsection by the sum of:

(i) the available balance of the individual's unspent Commonwealth portion held by the registered provider (if any) on that day in accordance with section 226A, taking into account any amounts already debited from that portion in accordance with that section on that day; and

(ii) the available balance of the individual's home care account (if any) on that day in accordance with section 226E, taking into account any claims already debited from that account in accordance with that section on that day.

(26) Clause 221, page 222 (line 18), after "account period for", insert "a".

(27) Clause 223, page 223 (line 15), omit "that".

(28) Clause 223, page 223 (line 16), before "the fee", insert "that".

(29) Clause 223, page 223 (line 22), at the end of subclause (3), add:

; and (c) that the fee reduction supplement and the matters set out in paragraphs (a) and (b) of this subsection may be set by a determination made by the System Governor, and that the determination may include a limited period for which the supplement is payable.

(30) Page 224 (after line 19), after Division 3, insert:

Division 3A — Unspent Commonwealth portions and home care accounts

226A Unspent Commonwealth portion

(1) A registered provider starts to hold an unspent Commonwealth portion for an individual at the transition time if, immediately before the transition time:

(a) the registered provider was an approved provider that held an unspent home care amount in relation to the individual as mentioned in the User Rights Principles 2014; and

(b) the amount of the Commonwealth portion of that amount under section 21CA of those Principles was not zero.

(2) The available balance of the individual's unspent Commonwealth portion at a time is the difference, worked out in accordance with this section, between the sum of the credits that have been made to the portion at that time reduced (but not below zero) by the sum of the debits that have been made to the portion at that time.

Initial credit

(3) At the transition time, the amount of the Commonwealth portion of the individual's unspent home care amount under section 21CA of the User Rights Principles 2014 immediately before the transition time is credited to the portion.

Debits for claims

(4) If one or more claims are made under section 251 for person-centred subsidy for the delivery of a funded aged care service to the individual on a day, the portion is reduced on that day (but after the start of the day), in the order prescribed by the rules, by the amount by which the provisional subsidy amount for the service was reduced under:

(a) Step 5 of the method statement in subsection 192(1) or (2); or

(b) Step 4 of the method statement in section 210; or

(c) Step 4 of the method statement in section 219;

(as applicable) for each of those claims.

Insufficient funds

(5) If the debiting of an amount in relation to a claim under subsection (4) would result in the portion being debited below zero, the claim is taken to be a claim for such lesser amount (including a nil amount) that would not result in the portion being debited below zero.

Debit for return of unspent Commonwealth portion provider election

(6) If the registered provider elects to return the available balance of an unspent Commonwealth portion for the individual to the Commonwealth under section 226B, the portion is reduced, at the start of a day prescribed by the rules (which may be a day before the day the election is made), by the amount of that balance at the start of that day.

Debit for return of unspent Commonwealth portion individual transfers between provider service delivery branches

(7) If a registered provider returns the available balance of an unspent Commonwealth portion for the individual to the Commonwealth under section 226C, the portion is reduced, at the start of a day prescribed by the rules, by the amount of that balance at the start of that day.

Debit for return of unspent Commonwealth portion provider ceases to deliver services

(8) If a registered provider returns the available balance of an unspent Commonwealth portion for the individual to the Commonwealth under section 226D, the portion is reduced, at the start of a day prescribed by the rules, by the amount of that balance at the start of that day.

Ceasing of portion

(9) The registered provider ceases to hold an unspent Commonwealth portion for an individual when the available balance of the portion is reduced to zero.

226B Return of unspent Commonwealth portion — provider election

(1) A registered provider may, by written notice given to the System Governor and in accordance with the rules, elect to return the available balance of an unspent Commonwealth portion for an individual to the Commonwealth.

(2) Before making the election, the registered provider must obtain the individual's written agreement to the making of the election.

(3) The election is irrevocable.

226C Return of unspent Commonwealth portion — individual transfers between provider service delivery branches

(1) This section applies if:

(a) a registered provider holds an unspent Commonwealth portion for an individual to whom the provider is delivering funded aged care services through a particular service delivery branch of the provider; and

(b) the provider ceases to deliver those services to the individual through that service delivery branch and starts to deliver those services to the individual through another service delivery branch of the provider; and

(c) there is continuity of the delivery of those services to the individual by that provider.

(2) The provider must:

(a) give the System Governor written notice of the matters mentioned in subsection (1); and

(b) return the available balance of the unspent Commonwealth portion for the individual to the Commonwealth.

226D Return of unspent Commonwealth portion — provider ceases to deliver services

(1) This section applies if:

(a) a registered provider holds an unspent Commonwealth portion for an individual to whom the provider is delivering funded aged care services; and

(b) the provider ceases to deliver funded aged care services to the individual.

(2) The provider must:

(a) give the System Governor written notice of the matters mentioned in subsection (1); and

(b) return the available balance of the unspent Commonwealth portion for the individual to the Commonwealth.

226E Home care account balance

Home care account

(1) A notional home care accountis established for an individualat the transition time if:

(a) immediately before the transition time:

(i) the individual had a home care account under the old Act; and

(ii) the home care account balance of that account under the old Act was not zero; and

(b) at the transition time, no registered provider holds an unspent Commonwealth portion for the individual under section 226A.

Available balance

(2) The available balance of an individual's home care account at a time is the difference, worked out in accordance with this section, between the sum of the credits that have been made to the account at that time, reduced (but not below zero) by the sum of the debits that have been made to the account at that time.

Initial credit

(3) At the transition time, the amount of the individual's home care account balance under the old Act immediately before the transition time is credited to the account.

Credit for return of unspent Commonwealth portion provider election

(4) If a registered provider elects to return the available balance of an unspent Commonwealth portion for the individual to the Commonwealth under section 226B, the account is credited, at the start of a day prescribed by the rules (which may be a day before the day the election is made), by the amount of that balance at the start of that day.

Credit for return of unspent Commonwealth portion individual transfers between provider service delivery branches

(5) If a registered provider returns the available balance of an unspent Commonwealth portion for the individual to the Commonwealth under section 226C, the account is credited, at the start of a day prescribed by the rules, by the amount of that balance at the start of that day.

Credit for return of unspent Commonwealth portion provider ceases to deliver services

(6) If a registered provider returns the available balance of an unspent Commonwealth portion for the individual to the Commonwealth under section 226D, the account is credited, at the start of a day prescribed by the rules, by the amount of that balance at the start of that day.

Debits

(7) If one or more claims are made under section 251 for person-centred subsidy for the delivery of a funded aged care service to the individual on a day, the account is reduced on that day (but after the start of the day), in the order prescribed by the rules, by the amount worked out under:

(a) Step 6 of the method statement in subsection 192(1) or (2); or

(b) Step 5 of the method statement in section 210; or

(c) Step 5 of the method statement in section 219;

(as applicable) for each of those claims.

Insufficient funds

(8) If the debiting of an amount in relation to a claim under subsection (7) would result in the account being debited below zero, the claim is taken to be a claim for such lesser amount (including a nil amount) that would not result in the account being debited below zero.

Ceasing of account

(9) The account ceases when:

(a) the available balance of the account is reduced to zero; and

(b) no registered provider holds an unspent Commonwealth portion for the individual under section 226A.

(31) Clause 231, page 229 (line 21), omit "that".

(32) Clause 231, page 229 (line 22), before "the fee", insert "that".

(33) Clause 231, page 229 (line 31), at the end of subclause (3), add:

; and (c) that the fee reduction supplement and the matters set out in paragraphs (a) and (b) of this subsection may be set by a determination made by the System Governor, and that the determination may include a limited period for which the supplement is payable.

(34) Clause 235, page 232 (after line 28), at the end of the clause, add:

(6) Despite subsections (1), (2) and (5), if the individual is included in a class of individuals prescribed by the rules, the person-centred subsidy reduction for the day is the amount prescribed by the rules.

(35) Clause 242, page 237 (after line 5), at the end of the clause, add:

(5) Despite subsections (1), (3) and (4), the provider-based subsidy reduction for a registered provider for the classification type ongoing for the service group residential care for an individual is the amount prescribed by the rules if the individual is included in a class of individuals prescribed by the rules.

(36) Clause 273, page 258 (lines 18 and 19), omit Step 1 of the method statement, substitute:

Step 1. Work out:

(a) if the service group is home support—the individual's individual contribution rate under section 314 for the day referred to in subsection (1) of this section; or

(b) if the service group is assistive technology or home modifications—the lower of the individual's individual contribution rate under section 314 for the day referred to in subsection (1) of this section and the day prescribed by the rules.

(37) Clause 273, page 259 (line 27), at the end of subclause (5), add:

; (c) any other contribution or fee prescribed by the rules.

(38) Page 259 (after line 27), after clause 273, insert:

273A Unspent care recipient portion

(1) A registered provider starts to hold an unspent care recipientportion for an individual at the transition time if, immediately before the transition time:

(a) the registered provider was an approved provider that held an unspent home care amount in relation to the individual as mentioned in the User Rights Principles 2014; and

(b) the amount of the care recipient portion of that amount under section 21CA of those Principles was not zero.

(2) The registered provider must comply with any requirements prescribed by the rules relating to unspent care recipient portions.

(39) Clause 276, page 261 (after line 26), at the end of the clause, add:

(4) Without limiting paragraph (2)(b), rules made for the purposes of that paragraph may provide that an amount may be charged for only a particular period.

(40) Clause 277, page 262 (lines 22 to 24), omit subclause (4), substitute:

(4) Despite subsection (1), if the individual is in a class of individuals prescribed by the rules, the maximum daily amount of the resident contribution payable by the individual for a day is the amount prescribed by the rules.

(5) Reduce the following amounts in accordance with rules made for the purposes of subsection 231(3):

(a) if subsection (1) of this section applies—the amounts worked out under each of Steps 1, 3 and 4 of the method statement in that subsection;

(b) if subsection (4) of this section applies—each amount prescribed by the rules that relates to the amount worked out under that subsection.

(41) Clause 278, page 263 (after line 17), at the end of the clause, add:

(3) This section does not apply if the individual is included in a class of individuals prescribed by the rules.

(42) Clause 279, page 265 (line 5), at the end of subclause (5), add:

; (c) any other contribution or fee prescribed by the rules.

(43) Clause 279, page 265 (after line 5), at the end of the clause, add:

(6) This section does not apply if the individual is included in a class of individuals prescribed by the rules.

(44) Clause 283, page 268 (after line 16), at the end of the clause, add:

(5) Without limiting paragraph (2)(b), rules made for the purposes of that paragraph may provide that an amount may be charged for only a particular period.

(45) Clause 284, page 269 (after line 13), at the end of the clause, add:

(6) Despite subsection (1), the registered provider must not:

(a) charge the individual a higher everyday living fee in circumstances prescribed by the rules; or

(b) enter into a higher everyday living agreement with the individual in circumstances prescribed by the rules.

(46) Clause 287, page 271 (line 5), before "This", insert "(1)".

(47) Clause 287, page 271 (after line 12), at the end of the clause, add:

(2) The provisions of this Part do not apply in respect of the delivery of funded aged care services to an individual (other than under a specialist aged care program) if the individual is included in a class of individuals prescribed by the rules.

(3) If the provisions of this Part do not apply in respect of the delivery of funded aged care services to a class of individuals because of subsection (2), the rules may prescribe different requirements in relation to the delivery of those services so far as the requirements relate to an accommodation bond or accommodation charge, and the charging or payment of any amounts in relation to such a bond or charge.

(48) Clause 294, page 279 (line 24), before "less", insert "equal to or".

(49) Clause 294, page 279 (line 34), after "method", insert "prescribed by the rules".

(50) Clause 294, page 281 (line 1), after "method", insert "prescribed by the rules".

(51) Clause 297, page 284 (line 5), after "and the home", insert "(reduced by any deductions made to that amount in accordance with section 308)".

(52) Clause 302, page 286 (after line 25), after paragraph (c), insert:

(ca) circumstances in which an individual's daily accommodation payment is not to be indexed in accordance with rules made for the purposes of paragraphs (b) and (c); and

(53) Clause 308, page 289 (after line18), at the end of the clause, add:

(5) Despite subsection (1), that subsection does not apply in relation to an individual's refundable deposit balance if the individual is in a class of individuals prescribed by the rules.

(54) Clause 314, page 295 (line 11), omit "decision", substitute "determination".

(55) Clause 314, page 295 (line 21), omit "decision", substitute "determination".

(56) Clause 314, page 295 (line 23), omit "decision", substitute "determination".

(57) Clause 314, page 295 (lines 26 and 27), omit "worked out in accordance with a method".

[technical correction

(58) Page 295 (after line 27), after clause 314, insert:

314A Means not disclosed status

Means not disclosed status

(1) An individual accessing funded aged care services in a home or community setting has means not disclosed status if:

(a) the System Governor determines that the individual has that status in accordance with the rules; or

(b) the individual makes an election in accordance with section 314B.

(2) Without limiting paragraph (1)(a), rules made for the purposes of that paragraph may prescribe that the System Governor may determine that the individual has means not disclosed status if the individual is asked to provide specified information prescribed by the rules, within a specified period, and the individual fails to do so.

Determining means not disclosed status

(3) A determination under paragraph (1)(a) takes effect on the day specified by the System Governor in the notice under subsection (5). The day may be before the day on which the determination is made but must be in accordance with the rules.

Note: For example, the means not disclosed status may take effect on the individual's start day.

(4) If, after that determination is made, the individual provides sufficient information as requested under subsection (2), the System Governor must:

(a) revoke the determination that the individual has means not disclosed status; and

(b) determine the day the revocation takes effect (which may be before the day that determination is made).

Giving notice of determination

(5) Within 14 days after making a determination under paragraph (1)(a) or (4)(b), the System Governor must give written notice of the decision to make that determination to the individual.

(6) The notice under subsection (5) must:

(a) if the decision is to make a determination under paragraph (1)(a):

(i) explain the consequences of the individual having means not disclosed status and the steps the individual must take if the individual wants the determination to be revoked; and

(ii) specify the day the determination takes effect (see subsection (3)); and

(iii) set out the reasons for both the decision to make the determination and the decision as to the day the determination takes effect; and

(b) if the decision is to make a determination under paragraph (4)(b):

(i) specify the day the revocation takes effect; and

(ii) set out the reasons for the decision as to the day the revocation takes effect; and

(c) state how the individual may apply for reconsideration of the decisions mentioned in the notice; and

(d) include such other matters as are prescribed by the rules.

Determinations not legislative instruments

(7) If a determination under paragraph (1)(a) or (4)(b) is in writing, it is not a legislative instrument.

314B Electing to have means not disclosed status

(1) An individual may, by written notice given to the System Governor, elect not to give any information prescribed by the rules for the purposes of subsection 314A(2) to the System Governor.

(2) The individual may make the election during the period:

(a) starting on the individual's start day; and

(b) ending on the day immediately before the day the System Governor determines, in accordance with the rules, that the individual has means not disclosed status.

(3) If the individual makes an election under subsection (1), the individual's means not disclosed status takes effect on the individual's start day and remains in effect until the day the individual withdraws the election in accordance with subsection (5).

(4) While the election is in effect, the System Governor must not request the individual to give any information prescribed by the rules for the purposes of subsection 314A(2).

(5) The individual may, by written notice given to the System Governor, withdraw the election.

(59) Heading to clause 315, page 296 (line 1), omit "of".

(60) Clause 319, page 302 (lines 8 and 9), omit "total assessable income", substitute "asset".

(61) Clause 319, page 304 (after line 2), at the end of the clause, add:

(5) Despite subsection (1), if the individual is in a class of individuals prescribed by the rules, the daily means tested amount for the individual is the amount prescribed by the rules.

(6) To avoid doubt, an amount prescribed by the rules under subsection (5) may refer to an individual's total assessable income, the value of an individual's assets, or both.

(62) Clause 320, page 304 (line 5), after "individual", insert "accessing funded aged care services in an approved residential care home".

(63) Heading to clause 336, page 328 (line 2), omit "of".

(64) Page 329 (after line 7), at the end of Chapter 4, add:

Part 6 — Miscellaneous

337A Compensation for acquisition of property

(1) If the operation of:

(a) this Chapter; or

(b) a legislative instrument made under this Chapter;

would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in:

(a) the Federal Court of Australia; or

(b) the Supreme Court of a State or Territory;

for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

(65) Clause 602, page 543 (after line 15), after subclause (7), insert:

Rules about transitional cohorts

(7A) Without limiting subsections (1) and (7), the rules may make different provision for an amount (including in any of the ways provided for in subsection (7)) for different classes of individuals, including classes of individuals (transitional cohorts) identified by reference to the individual being approved as a recipient of a kind of care under any of the following as in force or existing immediately before the commencement of this section:

(a) the Aged Care Act 1997;

(b) the Aged Care (Transitional Provisions) Act 1997;

(c) the program manual for the Commonwealth Home Support Program or the National Aboriginal and Torres Strait Islander Flexible Aged Care Program.

(7B) Without limiting subsection (1), the rules may prescribe the following:

(a) arrangements for individuals in a transitional cohort to elect to cease to be included in the cohort;

(b) circumstances in which an individual will cease to be included in a transitional cohort.

The government moves this amendment to include grandfathering arrangements, including the 'no worse off' principle in the primary legislation for the Aged Care Bill. We have heard from stakeholders that they are concerned about what this change will mean for people who are already accessing aged care. To respond to these concerns and provide certainty to people already in aged care, we're putting the grandfathering arrangements in the bill. This will mean that existing home care package care recipients, people on the national priority system or individuals who have been assessed as eligible for home care at the date the new arrangements were announced will pay the same or lower contributions under the new system. The principle will also apply to people who are receiving residential care at the time the reforms were announced. These residents will retain their existing arrangements for their time in residential care.

Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

I appreciate the government setting out transitional arrangements for grandfathering in the primary legislation, rather than waiting for the transitional bill, given the questions that have been raised by advocates and constituents showing the need for clarity. Firstly, I wonder if the minister could provide some clarity with respect to the lifetime means-test cap, proposed to increase from approximately $82,000 to $133,000, as it's my understanding that the cap covers only some but not all fees. Could the minister please confirm which of the following fees will be capped by the lifetime mean-test fee cap? Does that include the basic daily care fees, the daily extra services fees—to be called the 'higher everyday living fees', which can total thousands of dollars per year, as reported by the Older Persons Advocacy Network? Will the cap cover the daily accommodation payments for those unable to pay the refundable deposit?

I also request clarification as to whether the grandfathering will also apply to the amounts that may be charged for refundable deposits for residential aged care. Likewise, I would like to confirm the scope of the grandfathering proposed under the 'no worse off' principle. My office has been advise that this principle applies purely to the lifetime means-tested fee cap that the person may be required to pay for receiving funded aged-care services. Can the minister please advise whether the person's entitlement to services they may already be receiving under a home-care package, such as gardening, cleaning and the like, will be grandfathered into the new Support at Home system? Alternatively, will the new lower and more prescriptive Support at Home service limits apply? I ask this because I have constituents who are worried that the gardening services they currently receive are going to be significantly reduced in hours.

Secondly, the amendment refers to a class of people in the rules for the purpose of the no worse off principle, but it does not exclusively explain who those rules are meant to apply to. Therefore, I respectfully seek clarification from the minister with respect to this. Will those with a pre-existing lifetime contribution cap to be grandfathered include people who have applied for My Aged Care and sought an aged-care assessment but have not yet been assessed as at 12 September this year; people who had undergone an aged-care assessment, were on the national priority list waiting for aged care or were receiving a funded home-care package on 12 September 2024; people who had undergone an aged-care assessment or had been approved for and allocated or receiving CHSP, Commonwealth Home Support Program, services as at 12 September; and people who were experiencing hardship, which COTA argues requires definition in the act?

Further, National Seniors Australia have raised the following queries, and I share their concerns. Could the minister provide greater clarification about when the no worse off principle, the grandfathering, ends? The public communication implies the no worse off principle is ongoing but not where there are clear end dates. Could the minister please provide more information regarding what factors are to be taken into consideration when setting price caps for different Support at Home services and what methods are to be used to determine the price setting for different services? Could the minister please advise what the government is actively planning to do to clear the backlog of approximately 76,000 people who are on the waiting list? I note that aged-care providers have said there need to be an additional 55,000 packages and that they have capacity to provide those services.

I also wish to seek clarification from the minister that clause 186A excludes from means testing any payments of compensation or damages made by a provider under the act's compensation pathway for serious injury or illness caused by them in breach of their duties under the act—meaning a provider cannot claw back from the recipient any compensation payment that may have been paid out of a breach.

Question agreed to.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question now is that the bill, as amended, be agreed to.

Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

I have some further questions for the minister in the consideration in detail stage. I've liaised with the Council on the Ageing regarding some other issues about which we share some concerns. Will the government move to include an explicit definition of 'hardship' in the bill? The Council on the Ageing advocates that 'hardship' be defined as someone having less than 50 per cent of the basic pension in income after essential services are paid, which is what it is today. The Council on the Ageing also advocates that the assets test for determining hardship be equalised with the minimum asset value in the bill, which is 2.25 times the annual basic pension.

Another question to the minister: will the government amend the bill to ensure that a provider cannot charge any fees if someone is experiencing hardship, as defined? Currently, the bill only explicitly prevents the non-clinical care contribution being reduced if someone is in hardship. Other supplements may offset user contributions to zero for the hotelling contribution if someone has assets less than $206—the accommodation contribution—but there is also no explicit link to the hardship.

There remain two user contributions that appear to have no link to be reduced if hardship is found. The first is for people with assets above $206,000, and that includes potentially a full pension for people who have asset levels and accommodation payments of up to $750,000 in the form of a RAD. The second is the issue of additional services, or higher everyday living services, which have been the subject of some media reports—charges for beds or even for pillows. These fees are not regulated by the act nor included in the hardship calculations, and there is no clause in the bill that would stop these fees from being charged.

While the system assumes that these fees are optional, the experience of many people—as we see from the OPAN presenting issues report released today—is that, if they do not agree to pay these additional service fees, they are not able to secure the bed that they or their loved one so desperately needs. Can we make sure that we don't have a system where people who can't afford a pillow are not given a pillow? Will the government commit to retaining provisions to ensure that the formerly additional services, now higher everyday living services, are truly optional and that older people and their families aren't being forced to pay for things they have no use for or benefit from?

The OPAN annual report indicates that aged-care residents are being charged more than $31 a day for additional services, such as a gym that they can't physically use, alcoholic drinks that they don't consume or lollies that they can't even eat due to diabetes. Some providers are including the person's bed, pillows and meals—which are fairly low on Maslow's basic needs hierarchy, rather than being luxuries. Will the minister please clarify that residents who can't physically use or do not choose to use those items will not necessarily be charged for those items?

Will the government amend the bill to require providers to consider certain factors when setting room prices of $750,000 as a RAD? The government has signalled it intends to allow providers to charge up to $750,000 from January next year. However, a number of stakeholders have raised concerns that the new act needs additional protections around room prices, and any such protections won't start until 1 July next year. One of the biggest concerns is that the median house price in many areas is far below $750,000.

Will the government amend the bill to ensure that we don't have a two-tiered system where providers can cherrypick only the wealthiest of residents? We need to have a sustainable aged-care system that ensures that everybody, no matter what is in their bank account, is provided with high-quality care. I'd appreciate the minister's response to those questions.

Anika Wells (Lilley, Australian Labor Party, Minister for Aged Care) Share this | Link to this | Hansard source

I move the government amendment on sheet UD107 as circulated:

(1) Clause 158, page 167 (line 26) to page 168 (line 18), omit subclauses (5) to (7).

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I want to thank the minister for moving this amendment separately. I understand time is of the essence, so I'll just place on the record a couple of brief concerns that the Greens have about this amendment.

This amendment removes what we thought was a very good provision in the original bill that ensured there was a workers voice. In an industry like this—where care is in fact nothing, in many respects, but what the workers do—it is the workers who are doing the care. There's been a feeling, as expressed by the unions and other representatives, that over many years their voices and their concerns have not been heard, especially about the workplace, the delivery of packages and so on. We thought that the original provision in the bill was a good provision, and we don't think that it should be taken out. So we oppose this amendment because this amendment removes a workers voice.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendment be agreed to.