Aged Care (Consequential and Transitional Provisions) (Registration of Entities) Determination 2025

The Determination relies heavily on the definitions and terms from the CTP Act and the new and old Acts. Section 4 provides that expressions defined in subitem 1(1) of Schedule 2 to the CTP Act have the same meaning - these include ‘new Act’, ‘new law’, ‘old Act’, ‘old law’, ‘transitional rules’, and ‘transition time’. The ‘transition time’ is not defined in the Determination itself, but under the CTP Act it is the time when the new Act commences, which is set at 1 November 2025 by the Commencement table in section 2. The ‘System Governor’ is a role under the new Act; section 5(2)(c) refers to the System Governor’s satisfaction. The ‘new Act’ is the Aged Care Act 2024; the ‘old Act’ is the Aged Care Act 1997 as in force before repeal.

The central concepts created by this Determination are:

(a) Inactive provider: An entity is an inactive provider if it had not claimed subsidy (within the meaning of the old Act) at any time during the 12 months ending immediately before the commencement of the new Act (section 5(1)). This term is used for the purposes of subitem 5(2) of Schedule 2 to the CTP Act - meaning that being inactive is a precondition for not being deemed registered. The exceptions in section 5(2)(a)-(d) remove certain categories from being potentially inactive: providers approved in the 12 months before transition (whether as a new provider or for a new type of care), providers who had taken reasonable steps to begin offering a residential care service to the System Governor’s satisfaction, and providers with a provisional allocation under the old Act.

(b) Provider registration categories: Section 6 creates deemed registration categories based on the old approval type. The categories under the new Act include residential care, home and community services, assistive technology and home modifications, advisory and support services, personal and care support in the home or community, and nursing and transition care. Each old approval type is mapped to one or more new categories, with some nuances (e.g., home care providers are automatically mapped to five categories, with the option to opt out of the nursing category).

(c) Deemed registration period and approved residential care homes: Section 7 provides that for each entity listed in Schedule 1, the registration period and approved residential care homes are as set out in the table. This ties the entity to a specific start and end date for their registration, and identifies which places are considered approved residential care homes and how many beds each has.

(d) Reasonable steps and System Governor satisfaction: Section 5(2)(c) introduces a discretionary element: a provider is excluded from being potentially inactive if, immediately before the transition time and to the System Governor’s satisfaction, they had taken reasonable steps to begin offering a residential care service. This places an evaluative burden on the System Governor, and the provider must have evidence available at the transition time. The instrument does not define ‘reasonable steps’.

These concepts together determine the starting point for all providers under the new Act. They effectively freeze the registration status as of the moment before transition, with no automatic mechanism for correction if the mapping is wrong or if the inactive determination is disputed. The instrument also creates an odd asymmetry: a provider that was approved to provide home care but had not yet started operations, or had paused subsidy claims for business reasons, could be inactive - yet a provider with merely a provisional allocation (which may not involve actual service delivery) is protected (section 5(2)(d)). This suggests the drafters were more concerned with preventing dormant providers from gaining registration than with ensuring all genuine providers are covered.

The Determination directly affects every entity that was an approved provider under the old Act immediately before the transition time (1 November 2025). This includes entities approved to provide residential care, home care, flexible care (short-term restorative care, multi-purpose services, or transition care), and any other category of approved provider that existed under the old Act. Because the instrument deems these entities to be registered under the new Act, they do not need to apply for initial registration, but their registration categories, period, and residential care homes are predetermined by the instrument.

Indirectly, the Determination also affects entities that were not approved under the old Act but that might have expected to become registered under the new Act. They must go through the ordinary registration process under the new Act, and cannot rely on the transitional deeming provisions.

Specifically, the Determination has different effects on subcategories:

• Active providers: Those who had claimed a subsidy during the 12 months before transition will be deemed registered and mapped to the categories in section 6. They will retain their existing residential care homes and registration periods as per Schedule 1.

• Newly approved providers: Those approved as an approved provider or for a new type of care during the 12 months before transition are exempt from the inactive classification (section 5(2)(a),(b)). They will also be deemed registered.

• Providers in startup: Those approved earlier but who had not yet claimed a subsidy (e.g., a provider approved two years ago but still building a facility) could be caught as inactive unless they fall within the exception for taking reasonable steps to begin offering a residential care service, or unless they had a provisional allocation. This is a narrow exception: it only applies to residential care, not home care, and it requires the System Governor’s satisfaction.

• Home care providers who do not provide nursing: They can opt out of the nursing and transition care category by notifying the System Governor before the transition time (section 6(4)). This is a one-time election. Failure to notify means they are deemed registered in that category, which may impose obligations under the new Act (e.g., compliance with nursing care standards) whether or not they actually deliver nursing services.

• Providers of flexible care: MPSP and TCP providers are mapped to both residential care and multiple home categories, even if their actual operations might be limited to one setting. This could lead to over-inclusive registration, requiring them to meet compliance obligations for categories they do not use.

• Entities that had their approval revoked or expired before transition: The old Act’s revocation provisions would have removed approval, so such entities would not be deemed registered. But the Determination does not address the status of entities whose approval was suspended or under review.

• Consumers and care recipients: Although not directly bound by the Determination, they are affected because the registration status of their provider determines which categories of care are available under the new Act. If a provider is deemed inactive, consumers may need to find alternative providers.

The Determination also affects the System Governor: they must exercise judgment on reasonable steps under section 5(2)(c), and they must process notifications under section 6(4). There is no appeal mechanism specified in the Determination itself; presumably the CTP Act or new Act provides for review of decisions, but that is not stated.

The Determination does not impose ongoing duties on providers; those arise under the new Act itself. However, it imposes discrete duties and creates specific rights during the transition period.

Duties:

• Duty to ensure subsidy claims history: Providers must have claimed subsidy within the 12 months before transition to avoid being deemed inactive. This means maintaining records of subsidy claims and, if a provider did not claim subsidy (e.g., because they were operating under a block grant or other funding model not classified as ‘subsidy’ under the old Act), they need to check the definition of subsidy - which is not defined in this instrument but in the old Act. The duty is not a positive obligation to claim, but the consequence of not having claimed is loss of deemed registration.

• Duty to notify to opt out of nursing category: A home care provider that does not wish to be registered in the nursing and transition care category must notify the System Governor before the transition time (section 6(4)). This is a time-limited obligation. The instrument does not specify the form or manner of notification; presumably it must be in writing or via a portal. If the entity fails to notify, it is deemed registered in that category, even if it has never provided nursing services.

• Duty to evidence reasonable steps: A provider seeking to rely on the exception in section 5(2)(c) (reasonable steps to begin offering residential care) must have the evidence available to satisfy the System Governor immediately before the transition time. This is not an active duty to provide evidence, but the provider bears the practical burden of ensuring that the System Governor is aware of and satisfied with the steps taken.

Rights:

• Right to be deemed registered: Entities that are not inactive are deemed to be registered under the new Act for the categories specified in section 6, for the registration periods in Schedule 1, and with the approved residential care homes in Schedule 1. This right arises automatically, without application or fee.

• Right to opt out of nursing category: Home care providers have the right to notify that they do not provide nursing services, thereby not being registered in that category. This preserves the status quo if the provider is purely a non-nursing home care provider.

• Right to rely on existing approvals: Entities that had provisional allocations or were recently approved are protected from the inactive classification, preserving their transition path.

The rights are not absolute. For example, a provider that is deemed registered might later be subject to compliance actions under the new Act if the deemed categories do not match their actual service delivery. There is no right to challenge the mapping ex ante; the Determination is a legislative instrument and likely not reviewable individually. Similarly, if the System Governor determines that reasonable steps were not taken, the provider becomes inactive and cannot be deemed registered. The instrument gives no express right to make submissions before that determination.

The Determination largely operates mechanically, leaving little room for individual adjustment. The one discretionary element - reasonable steps - creates a right for the System Governor to make a factual assessment, but not a right for the provider to demand a certain outcome. From a property rights perspective, the Determination reduces the certainty of regulatory capital; an entity that invested in becoming an approved provider under the old Act may find itself without registration under the new Act due to a lack of recent subsidy claims, even if it has assets and staff.

The Determination itself does not contain penalty provisions. It is a transitional instrument that sets out statuses and categories. Penalties arise under the new Act if a person provides aged care without being registered or outside their registration categories. Therefore, the practical enforcement consequences flow from misclassification or from being deemed inactive.

Consequences of being inactive: An entity deemed inactive under section 5 and subitem 5(2) of Schedule 2 to the CTP Act is effectively not registered under the new Act. Providing aged care without registration would be a contravention of the new Act, potentially attracting civil or criminal penalties (though not specified here). The Determination does not provide a remedy; the entity would need to apply for registration under the new Act from scratch, which may take time and involve meeting new standards.

Consequences of incorrect mapping: If an entity believes the mapping in section 6 is wrong (e.g., a home care provider that did not provide certain services), they cannot unilaterally change their registration. The only opt-out is for nursing and transition care. If the provider fails to opt out, they are registered in categories they may not fulfil. Under the new Act, being registered in a category likely imposes duties to meet the quality standards for that category, and failing to meet them could result in sanctions. Conversely, if a provider is mapped to fewer categories than they should be (e.g., a flexible care provider might be mapped to only a subset of categories if the old approval was narrow), they may not be authorised to provide services they previously offered.

Enforcement mechanisms: The Determination itself does not create offences. The new Act and its enforcement provisions apply. The System Governor’s satisfaction under section 5(2)(c) is a decision that could be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 if it is a decision under an enactment. However, the instrument does not set out a process for requesting or reviewing that determination.

Lack of transitional justice: There is no appeal mechanism within the Determination. An entity that is deemed inactive due to missing the 12-month claim window has no right to argue that the inactivity was justified (e.g., due to a pandemic shutdown, dispute with Department, or construction delays). The instrument is inflexible, which may lead to unintended hardship for entities that had legitimate reasons for not claiming subsidy.

No penalty for incorrect notification: The opt-out notification in section 6(4) is not subject to any penalty if the provider fails to notify, but the consequence is being registered in a category they may not want. Similarly, there is no penalty for the System Governor if they make an incorrect determination, but that could lead to legal challenge.

This Determination is made under item 5 of Schedule 2 to the Aged Care (Consequential and Transitional Provisions) Act 2024 (CTP Act). That Act itself modifies the operation of the Aged Care Act 2024 (the new Act) and the Aged Care Act 1997 (the old Act) during the transition. The CTP Act includes provisions that allow for determinations such as this one to specify details of the deeming of providers.

The Determination directly interacts with:

• Aged Care Act 2024: The new Act is the primary legislation that will govern aged care from 1 November 2025. This Determination supplements section 115 of the new Act (which deals with registration periods) and paragraph 105(1)(b) and section 112 (which deal with approved residential care homes). By deeming providers to be registered, the Determination fills gaps that would otherwise require individual applications.

• Aged Care Consequential and Transitional Provisions Act 2024: The CTP Act establishes the framework for the transition, including subitem 5(2) which deems entities to be registered providers unless they are inactive. This Determination defines ‘inactive provider’ for that purpose, and also provides the categories and periods for subitems 5(3), (6), (7), and (11).

• Aged Care (Transitional Provisions) Rules 2025 or similar: The Determination refers to ‘transitional rules’ (defined in the CTP Act). There may be other legislative instruments that deal with matters such as reporting, funding, and quality during the transition. The Determination does not purport to cover all transitional matters; it is limited to registration.

• The old Act: The old Act is repealed from the transition time, but the Determination continues to define terms by reference to the old Act (see section 4(4)). For example, ‘subsidy’ and ‘approved provider’ are used in the old Act sense to determine whether an entity had claimed subsidy or was approved. The old Act thus has ongoing relevance for interpreting the Determination, even though it will be repealed.

The Determination does not interact with other Commonwealth laws such as the Corporations Act 2001, A New Tax System (Goods and Services Tax) Act 1999, or Fair Work Act 2009 in any direct way. However, the registration status determined here may affect the entity’s eligibility for funding under the new Act, which could have indirect tax or payroll implications.

The Determination also does not override state and territory laws regarding health and safety, building approvals, or workforce regulation. Those continue to apply.

This Determination is a new instrument; as of the provided text, it is the original version. The Commencement table in section 2 indicates that the whole of the instrument commences at the same time as the Aged Care Act 2024, which is 1 November 2025. The note clarifies that the table relates only to the provisions as originally made and will not be amended to deal with any later amendments. There is no amendment history because none have occurred yet.

However, the instrument itself includes a note that ‘any information in column 3 of the table is not part of this instrument’ and may be edited in published versions. That suggests that the commencement date is authoritative but the format is editorial.

Since the Determination is made under a specific item (item 5 of Schedule 2 to the CTP Act), it can be amended or replaced by a later determination under the same item. The CTP Act may also be amended by Parliament, which could affect the scope of the item. Any future amendments to the Determination would be registered on the Federal Register of Legislation and would have their own commencement provisions.

Practitioners should monitor for amendments to the Determination, especially if the CTP Act is amended or if policy changes require adjustments to the mapping of provider categories. Given that the transition time is fixed, amendments after that date would have limited effect for the deeming process, but could affect interpretation or subsequent registrations.

There is no litigation history for this Determination as it has not yet come into force. The instrument will commence on 1 November 2025, and until then it cannot be litigated. However, one can anticipate potential areas of challenge once it is in force.

Potential grounds for judicial review:

• Definition of inactive provider - An entity that did not claim subsidy for 12 months might argue that ‘subsidy’ was interpreted too narrowly, or that the 12-month period should be calculated differently. The determination of ‘immediately before the commencement’ could also be contested if the exact moment is ambiguous (e.g., if the instrument commenced at a specific time, but subsidy claims are dated).

• System Governor’s satisfaction - The exception for reasonable steps under section 5(2)(c) is subjective. If the System Governor is not satisfied, the entity could seek review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), arguing unreasonableness, failure to consider relevant matters, or procedural unfairness. The instrument does not require the System Governor to give reasons or provide an opportunity to be heard, which could invite procedural fairness challenges.

• Mapping of categories - A provider might argue that the deemed mapping in section 6 is invalid because it does not accurately reflect the old approval scope. For example, a home care provider that only provided household services might challenge being registered in ‘personal and care support’ if they never provided such services. The mapping is a legislative instrument and could be challenged as ultra vires the CTP Act if it goes beyond what is necessary for transition.

• Schedule 1 errors - The registration periods or approved residential care homes listed in Schedule 1 may contain errors or omissions. An entity could seek a declaration that the instrument incorrectly states its details.

Likely litigants: Providers that are deemed inactive and lose their registration, or providers that are mapped to categories they do not want and cannot easily opt out of (other than the nursing category opt-out). Consumer advocates might also challenge if the registration affects consumer choice.

No reported cases yet: The instrument is too new. But similar transitional determinations under other Commonwealth regimes (e.g., aged care reform or health reforms) have been challenged on grounds of insufficient transitional arrangements or improper delegation. The lack of a merits review mechanism in the Determination itself may increase the likelihood of judicial review.

Several aspects of the Determination are likely to catch out unsuspecting providers.

1. The 12-month no-claim trap: Section 5(1) defines an inactive provider as one who had not claimed subsidy during the 12 months before commencement. This is broader than it sounds. A provider that claimed subsidy 13 months ago, or one that is approved but never started operations, is caught. The exceptions in section 5(2) are limited. Most notably, there is no exception for an entity that had its approval for more than 12 months but was still building its facility and had not claimed subsidy. The only residential care exception requires ‘reasonable steps to begin offering’ to the System Governor’s satisfaction. That exception is subjective and may not protect a home care provider at all.

2. Nursing category opt-out deadline: Home care providers are deemed registered in nursing and transition care unless they notify the System Governor before the transition time. If they miss this deadline, they are deemed registered in that category even if they never provide nursing services. The instrument does not specify how to notify; providers should ensure they have a clear audit trail. It is a one-time, non-renewable notice.

3. Flexible care over-inclusion: A provider who was approved only for flexible care as short-term restorative care is mapped to five home categories (excluding residential). But a provider who had multiple old approvals? The instrument only deals with the entity based on each approval type; but if the entity had separate approvals (e.g., residential and home care), the mapping will combine them. For flexible care MPSP and TCP, the mapping includes residential care alongside home categories, even if the provider never provided residential care outside the multi-purpose service. This could impose compliance costs for residential care standards on a provider that thinks it is only providing home care.

4. Reasonable steps - no guidance: The instrument provides no criteria for what constitutes ‘reasonable steps’. The System Governor’s satisfaction is required immediately before the transition time. A provider might have taken steps like purchasing equipment or hiring staff, but if they cannot demonstrate this to the System Governor in time, they lose deemed registration. There is no requirement for the System Governor to give reasons or to respond to a provider’s claim.

5. Schedule 1 reliance: Section 7 refers to the table in Schedule 1 for registration periods and approved residential care homes. The instrument does not include Schedule 1 in the provided text, but it is presumably attached. Providers must check that their entity details are correct. If there is an error, there may be no mechanism to correct it before transition. The Determination is a legislative instrument, so it can be amended, but that is a slow process.

6. No application of new law definitions for historical events: Section 4(4) says that for events under the old law before transition, expressions have the meaning they had under the old law. This means that concepts like ‘subsidy’ and ‘approved provider’ might differ from the new Act definitions. Providers must use old Act definitions to interpret their status.

7. Provisional allocations: Section 5(2)(d) protects providers with a provisional allocation immediately before transition. But provisional allocations under the old Act were time-limited. If a provisional allocation had lapsed but the provider thought it was still current, they lose protection.

8. No transitional registration pathway for new providers: Only old approved providers benefit from deemed registration. New providers who want to start on 1 November 2025 must apply for registration under the new Act before that date, likely months in advance. The Determination offers no transitional advantage for them.

9. Interpretation of ‘subsidy’: The old Act defined subsidy broadly to include various payments. But if a provider received funding under a different mechanism (e.g., a grant not characterised as subsidy), they might not have ‘claimed subsidy’. They could be inactive even if they were operating.

10. The commencement note: The table in section 2 states that the whole instrument commences when the new Act commences. That is 1 November 2025. However, the determination of inactive provider depends on the 12 months ending immediately before that commencement. So entities must look at the period 1 November 2024 to 31 October 2025 (if we assume 1 November 2025 as transition). If they have any claim in that 12-month window, they are safe. But if their last claim was in October 2024, they are inactive. The exact date of commencement matters; the instrument says ‘before the commencement’ but not the exact time. Practitioners should confirm the precise time (e.g., 00:00 or 12:00) as it could affect borderline cases.

Compliance with this Determination is largely a matter of understanding one’s deemed status and taking timely actions before the transition time. Since the instrument is automatic in effect, the burden falls on the entity to verify that its deemed registration matches its intended scope of operations.

Step 1 - Audit old Act status: Determine whether you were an approved provider under the old Act immediately before transition. If yes, proceed. If no, this Determination does not apply and you must apply for registration under the new Act.

Step 2 - Check subsidy claim history: Review records of subsidy claims under the old Act within the 12 months before the commencement of the new Act. If you claimed at least one subsidy during that period, you are not inactive. If you did not, you will be deemed inactive unless you fall within one of the exceptions. If you think you are within an exception, collect evidence.

Step 3 - For residential care providers with no recent claims: If you were approved for residential care but had not claimed subsidy, examine whether you can satisfy the System Governor that you had taken reasonable steps to begin offering a residential care service before the transition time. Compile evidence (e.g., construction contracts, staff hires, regulatory approvals) and consider proactively contacting the System Governor to confirm satisfaction. The instrument does not say how to do this; practical steps might include making a submission to the Department before transition.

Step 4 - For providers with provisional allocations: Confirm that the provisional allocation under the old Act was in force immediately before the transition time. If it had expired, this exception does not apply.

Step 5 - Determine deemed registration categories: Using section 6, understand which categories you will be deemed registered in. If you were approved for residential care only, you are registered in residential care only. If you were approved for home care, you are registered in five categories (including nursing and transition care) unless you opt out. If you were approved for flexible care, check the mapping: short-term restorative care gives five home categories; MPSP and TCP give six categories (including residential). Ensure you are comfortable with the obligations attached to each category under the new Act.

Step 6 - Opt out of nursing category (if applicable): If you were a home care provider and you did not provide nursing services before transition, you should notify the System Governor before the transition time that you do not provide nursing services. This is a critical step - failure to notify means you are deemed registered in nursing and transition care. There is no prescribed form in the instrument; assume written notification by email or formal submission. Keep a copy with date stamp.

Step 7 - Verify Schedule 1 details: Locate the table in Schedule 1 that applies to your entity. Confirm the registration start day, registration end day, approved residential care homes, and total number of beds. If any detail is wrong, raise it with the Department before transition. The instrument is legislative, so errors might require an amendment; but the Department may issue guidance.

Step 8 - For ineligible entities: If you are not deemed registered (e.g., because you are inactive and not within an exception), you must apply for registration under the new Act as soon as possible. There is no transitional grace period; providing care without registration after 1 November 2025 would be unlawful. Ensure you start the application process well before the transition time.

Step 9 - Maintain records: Keep all evidence of subsidy claims, System Governor notifications, and any correspondence about reasonable steps. In the event of a dispute, the burden of proof is likely on the provider to show they were not inactive or that they opted out.

Step 10 - Seek legal or regulatory advice: The Determination is silent on many procedural details. The Department may issue guidelines or forms. Providers should monitor the Department’s website for any notification portal or guidance on the opt-out and reasonable steps determination. If in doubt, seek advice early.

There is no ongoing compliance obligation under this Determination once the transition time has passed; it is a one-time event. After transition, compliance shifts to the new Act’s registration, quality, and reporting requirements. The Determination’s mapping of categories will determine what services you are authorised to provide; ensure your operations match your deemed categories, or apply for a variation under the new Act.