Aged Care Legislation Amendment (Aboriginal and Torres Strait Islander Aged Care Commissioner and Other Measures) Bill 2026
I will now deal with the amendments and the request for an amendment circulated by the Australian Greens. In accordance with the usual practice, the statements accompanying the request circulated for this bill will be incorporated in Hansard. As the motion proposing an instruction to the committee to divide the bills into two bills was negated, the question will not be put on the amendment sheet to give effect to that division; that is sheet 4178.
The question is that the amendments on sheets 4169, 4170, 4171, 4172 and 4183 and the request for an amendment on sheet 3947 be agreed to. SHEET 4169 (1) Schedule 1, item 15, page 11 (after line 8), after paragraph 361G(2)(a), insert: (aa) must be of an administrative nature only; and _____ SHEET 4170 (1) Schedule 1, item 15, page 10 (after line 16), after section 361E, insert: 361EA Inquiries into matters relating to functions (1) The Aboriginal and Torres Strait Islander Aged Care Commissioner may inquire into matters relating to, or for the purposes of, the Aboriginal and Torres Strait Islander Aged Care Commissioner's functions.
Recommendations (2) The Aboriginal and Torres Strait Islander Aged Care Commissioner may, in writing, make recommendations after inquiring into matters under this section, including recommending that a person or body take a specified course of action. (3) If the Aboriginal and Torres Strait Islander Aged Care Commissioner recommends that a Commonwealth agency take a specified course of action, the Aboriginal and Torres Strait Islander Aged Care Commissioner may, by written notice, request the Commonwealth agency to give the Aboriginal and Torres Strait Islander Aged Care Commissioner a response to the recommendation before taking the action.
Publication (4) The Aboriginal and Torres Strait Islander Aged Care Commissioner may publish a report on inquiries conducted under this section. _____ SHEET 4171 (1) Schedule 1, item 2, page 3 (after line 16), at the end of the item, add: Australian government entity or official means: (a) a Commonwealth entity; or (b) an official (within the meaning of the Public Governance, Performance and Accountability Act 2013); or (c) a State or Territory government entity; or (d) an official of a State or Territory government entity.
(2) Schedule 1, item 15, page 10 (lines 17 to 28), omit subsection 361F, substitute: 361F Aboriginal and Torres Strait Islander Aged Care Commissioner may require information or documents (1) This section applies if the Aboriginal and Torres Strait Islander Aged Care Commissioner reasonably believes that a person has, or could take reasonable steps to obtain, information or documents relevant to the Aboriginal and Torres Strait Islander Aged Care Commissioner's functions.
(2) The Aboriginal and Torres Strait Islander Aged Care Commissioner may give the person a written notice that requires the person to do one or more of the things mentioned in subsection 361FA(1) (give specified information, produce specified documents or appear to answer questions). Note: Failing to comply with a notice given to a person may result in a civil penalty: see section 361FB.
Notice does not authorise government entity or official to provide personal information (3) A notice given to an Australian government entity or official does not authorise the provision of personal information about an individual, other than if the individual has consented to the use or disclosure of the information for that purpose. Note: If the notice requires the production of a document containing personal information, the person complies with the notice by producing a copy of the document with that information deleted. 361FA Contents of notice (1) A notice given under section 361F may require a person to do the following: (a) give information specified in the notice to the Aboriginal and Torres Strait Islander Aged Care Commissioner within the period and in the manner specified in the notice; (b) produce copies of documents specified in the notice to theAboriginal and Torres Strait Islander Aged Care Commissioner within the period and in the manner specified in the notice; (c) if the person is an individual—appear before the Aboriginal and Torres Strait Islander Aged Care Commissioner to answer questions at the time and in the manner specified in the notice; (d) if the person is not an individual—cause a competent officer of the person to appear before the Aboriginal and Torres Strait Islander Aged Care Commissioner to answer questions at the time and in the manner specified in the notice.
Note: For paragraphs (c) and (d), the notice may, for example, specify that the person is to appear before the Aboriginal and Torres Strait Islander Aged Care Commissioner to answer questions: (a) by attending in person at a specified physical location; or (b) by using a specified technology. (2) The notice must set out the effect of the following provisions: (a) section 361FA; (b) section 137.1 of the Criminal Code (about an offence for giving false or misleading information); (c) section 137.2 of the Criminal Code (about an offence for producing false or misleading documents).
Minimum period for complying with notice (3) A period specified under paragraph (1)(a) or (b) must end at least 14 days after the day the notice is given. (4) A time specified under paragraph (1)(c) or (d) must be on a day that is at least 14 days after the day the notice is given. 361FB Failing to comply with notice (1) A person contravenes this subsection if: (a) the person is given a notice under section 361F; and (b) the person is not an Australian government entity or official; and (c) the person fails to comply with a requirement of the notice.
Civil penalty: 30 penalty units. Exception — reasonable excuse (2) However, subsection (1) does not apply if the person has a reasonable excuse. 361FC Inspection and retention of documents (1) This section applies if a person produces a physical document under section 361F. Aboriginal and Torres Strait Islander Aged Care Commissioner may inspect and copy documents (2) The Aboriginal and Torres Strait Islander Aged Care Commissioner may: (a) inspect the document; and (b) make and retain copies of the whole or a part of the document.
Aboriginal and Torres Strait Islander Aged Care Commissioner may retain documents (3) The Aboriginal and Torres Strait Islander Aged Care Commissioner may take possession of the document and retain it for as long as is reasonably necessary. Certified copy of documents (4) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Aboriginal and Torres Strait Islander Aged Care Commissioner to be a true copy.
(5) The certified copy must be received in all courts and tribunals as evidence as if it were the original. (6) Until a certified copy is supplied, the Aboriginal and Torres Strait Islander Aged Care Commissioner must provide the person otherwise entitled to possession of the document, or a person authorised by that person, reasonable access to the document for the purposes of inspecting and making copies of the whole or a part of the document. 361FD Answering questions in accordance with notice (1) This section applies if: (a) the Aboriginal and Torres Strait Islander Aged Care Commissioner has given a notice under section 361F; and (b) the notice requires a person to appear before the Aboriginal and Torres Strait Islander Aged Care Commissioner in accordance with a requirement mentioned in paragraph 361FA(1)(c) or (d).
(2) The Aboriginal and Torres Strait Islander Aged Care Commissioner may require the person to answer questions orally or in writing. Civil penalty (3) A person contravenes this subsection if: (a) the person appears before the Aboriginal and Torres Strait Islander Aged Care Commissioner in accordance with the requirement; and (b) the recipient of the notice is not an Australian government entity or official; and (c) the person refuses or fails to answer a question put by the Aboriginal and Torres Strait Islander Aged Care Commissioner.
Civil penalty: 30 penalty units. Exception — reasonable excuse (4) However, subsection (3) does not apply if the person has a reasonable excuse. 361FE Self-incrimination etc. (1) An individual is not excused from giving information, producing a document or answering a question under this Division on the ground that doing so might tend to incriminate the individual in relation to an offence.
Note: A body corporate is not entitled to claim the privilege against self-incrimination. (2) However: (a) the information given, document produced or answer given; and (b) the giving of the information, the production of the document or the answering of the question; and (c) any information, document or thing obtained as a direct or indirect consequence of the giving of the information, the production of the document or the answering of the question; are not admissible in evidence against the individual in criminal proceedings, other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (about false or misleading information or documents) that relates to this Division.
(3) If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information, producing a document or answering a question under this Division, the individual is not excused from doing so under this Division on that ground. Note: A body corporate is not entitled to claim the privilege against self-exposure to a penalty.
(3) Schedule 1, page 12 (after line 26), after item 17, insert: 17A Section 396 After "available to the Commissioner, Complaints Commissioner", insert ", Aboriginal and Torres Strait Islander Aged Care Commissioner". 17B After section 400 Insert: 400A Authorised applicant, authorised person and relevant chief executive — Aboriginal and Torres Strait Islander Aged Care Commissioner functions For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection 397(1) and the information mentioned in subsection 397(2) of this Act that relate to a function of the Aboriginal and Torres Strait Islander Aged Care Commissioner: (a) the Aboriginal and Torres Strait Islander Aged Care Commissioner is an authorised applicant; and (b) the Aboriginal and Torres Strait Islander Aged Care Commissioner is an authorised person; and (c) the Aboriginal and Torres Strait Islander Aged Care Commissioner is the relevant chief executive. 17C After section 415 Insert 415A Authorised applicant, authorised person and relevant chief executive — Aboriginal and Torres Strait Islander Aged Care Commissioner functions For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in section 412 of this Act that relates to a function of the Aboriginal and Torres Strait Islander Aged Care Commissioner: (a) the Aboriginal and Torres Strait Islander Aged Care Commissioner is an authorised applicant; and (b) the Aboriginal and Torres Strait Islander Aged Care Commissioner is an authorised person; and (c) the Aboriginal and Torres Strait Islander Aged Care Commissioner is the relevant chief executive. 17D After section 442 Insert: 442A Authorised applicant — Aboriginal and Torres Strait Islander Aged Care Commissioner functions For the purposes of Part 4 of the Regulatory Powers Act, the Aboriginal and Torres Strait Islander Aged Care Commissioner is an authorised applicant in relation to the civil penalty provisions of this Act that relate to a function of the Aboriginal and Torres Strait Islander Aged Care Commissioner. _____ SHEET 4172 (1) Schedule 1, item 15, page 9 (after line 3), after section 361C, insert: 361CA Principles for performing Aboriginal and Torres Strait Islander aged care commissioner functions Best interests of older Aboriginal and Torres Strait Islander persons (1) It is the intention of the Parliament that the Aboriginal and Torres Strait Islander Aged Care Commissioner performs the functions of the Aboriginal and Torres Strait Islander Aged Care Commissioner in a manner that promotes the best interests of older Aboriginal or Torres Strait Islander persons.
Aboriginal and Torres Strait Islander cultural identity and safety (2) It is the intention of the Parliament that the Aboriginal and Torres Strait Islander Aged Care Commissioner performs the functions of the Aboriginal and Torres Strait Islander Aged Care Commissioner in a manner that recognises the need to protect and promote the cultural identity and safety of older Aboriginal or Torres Strait Islander persons through maintaining and building their connections to their family and community.
International human rights (3) It is the intention of the Parliament that the Aboriginal and Torres Strait Islander Aged Care Commissioner performs the functions of the Aboriginal and Torres Strait Islander Aged Care Commissioner in a manner consistent with the promotion of the following: (a) the principles set out in: (i) the United Nations Declaration on the Rights of Indigenous Peoples, being the Resolution adopted by the General Assembly of the United Nations on 13 September 2007; and (ii) the United Nations Principles for Older People, being the Resolution adopted by the General Assembly of the United Nations on 16 December 1991; and (b) Australia's obligation under: (i) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; and (ii) any other relevant international instrument (within the meaning of the Australian Human Rights Commission Act 1986); and (iii) any other international agreement relating to human rights that Australia is a party to.
Note 1: The text of United Nations General Assembly resolutions could in 2026 be accessed through the United Nations' website (https://www.un.org). Note 2: The Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2026 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). _____ SHEET 4183 (1) Clause 2, page 2 (table item 3), omit "Schedules 2 and 3", substitute "Schedules 2 to 3".
(2) Page 37 (after line 14), after Schedule 2, insert: Schedule 2A — Restoring human override for aged care needs assessments and classification assessments Part 1 — Amendments Aged Care Act 2024 1 After subsection 62(1) Insert: (1A) However, the approved needs assessor's discretion in undertaking the aged care needs assessment must not be limited by the assessment tool or any other requirements prescribed by the rules.
Note: The assessment tool is intended to support (not displace) an approved needs assessor's discretion in undertaking aged care needs assessments. 2 After subsection 76(1) Insert: (1A) However, for the purposes of subparagraphs (1)(a)(i) and (b)(i), the approved needs assessor's discretion in undertaking the classification assessment must not be limited by the assessment tool or any other requirements prescribed by the rules.
Note: The assessment tool is intended to support (not displace) an approved needs assessor's discretion in undertaking classification assessments. 3 Paragraph 79(2)(c) Omit "decision.", substitute "decision; and". 4 After paragraph 79(2)(c) Insert: (d) details of the System Governor's process for making the decision, including the following details in relation to any classification assessment undertaken for the decision: (i) how any assessment tool prescribed for the purposes of subparagraph 76(1)(a)(i) or (b)(i) was used; (ii) how any other requirements prescribed for the purposes of subparagraph 76(1)(a)(i) or (b)(i) were satisfied.
Part 2 — Transitional provisions 5 Application of amendments The amendments of the Aged Care Act 2024 made by this Schedule apply in relation to aged care needs assessments and classification assessments undertaken on or after the commencement of this item (whether the assessments began to be undertaken before, on or after that commencement). 6 Transitional — reassessment of aged care needs (1) An individual may request a reassessment of the individual's need for funded aged care services if: (a) there is an eligibility determination for an aged care needs assessment in effect for the individual; and (b) an aged care needs assessment (the existing assessment) for the individual was undertaken before the commencement of this item; and (c) the individual believes the existing assessment is incorrect or inaccurate because of an assessment tool or requirement prescribed by the rules for the purposes of subsection 62(1) of the Aged Care Act 2024.
(2) If an individual makes such a request, the System Governor is taken, for the purposes of applying subsection 61(1) of that Act, to have made a decision that a reassessment of the individual's need for funded aged care services is required to be undertaken by an approved needs assessor in accordance with paragraph 64(2)(a) of that Act. 7 Transitional — reassessment of classification (1) An individual may request a classification assessment for the individual if: (a) a classification level for a classification type for a service group for the individual is in effect because of a classification assessment (the existing assessment) that was undertaken before the commencement of this item; and (b) the individual believes the existing assessment is incorrect or inaccurate because of an assessment tool or requirement prescribed by the rules for the purposes of subparagraph 76(1)(a)(i) or (b)(i) of the Aged Care Act 2024.
(2) If an individual makes such a request, the individual is taken, for the purposes of applying subsection 75(1) of that Act, to have made an application for a classification reassessment for the classification type for the service group under section 82 of that Act. _____ SHEET 3947 (1) Page 55 (after line 24), after Part 10 of Schedule 3, insert: Part 10A — Stolen Generations redress payments Aged Care Rules 2025 43A At the end of section 314-10 Add: Individuals who have received Stolen Generations redress payments (13) The percentage for the individual contribution rate for each means testing category is 0% for an individual who has received a payment under one or more of the following: (a) the scheme known as the Territories Stolen Generations Redress Scheme; (b) the scheme known as the NSW Stolen Generations Reparations Scheme; (c) the package known as the Stolen Generations Reparations Package of Victoria; (d) the scheme known as the WA Stolen Generations Redress Scheme; (e) the scheme known as the Stolen Generations Reparations Scheme of South Australia; (f) the Stolen Generations of Aboriginal Children Act 2006 (Tas.).
(14) For the purposes of subsection (13), an individual is taken to have received a payment if another person acting on behalf of the individual received the payment. 43B Application The amendment to section 314-10 of the Aged Care Rules 2025 made by this Part applies in relation to an individual contribution rate for an individual at a time that is before, on or after the commencement of this item, whether a payment mentioned in subsection 314-10(13) of the Aged Care Rules 2025, as added by this Part, was paid before, on or after that commencement. _____ Statement pursuant to the order of the Senate of 26 June 2000 Amendment (1) Amendment (1) is framed as a request because it amends the bill to provide that the individual contribution rate for an individual who has received Stolen Generations redress payments is deemed to be 0% for each means testing category within the Aged Care Act 2024.
As a result, Commonwealth contributions for funded aged care services in a home or community setting will increase in respect of affected individuals. This will increase expenditure under section 598 of the Aged Care Act 2024. Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000 Amendment (1) If the effect of the amendment is to increase expenditure under the standing appropriation in section 598 of the Aged Care Act 2024 then it is in accordance with the precedents of the Senate that the amendment be moved as a request