Aged care rights and provider obligations 

The Aged Care Act 2024 (Cth) states a Statement of Rights in the body of the statute rather than leaving it to delegated instruments or a provider's own charter. A student who stops there will misread it. The prior question is what kind of right the Act creates, because s 24(3) says in terms that nothing in the Division creates rights or duties enforceable by proceedings in a court or tribunal¹. The rights are real, but they take effect through the regulation of providers rather than through litigation.

What the Statement of Rights confers

Section 23 groups the rights under headings that indicate their subject matter. The first is independence, autonomy, empowerment and freedom of choice: an individual has a right to "exercise choice and make decisions that affect the individual’s life", extending to the funded services they have been approved to access, how and by whom those services are delivered, and their financial affairs and personal possessions. The same subsection confers a right to be supported, if necessary, to make those decisions and to have them respected, and a right to take personal risks, including in pursuit of quality of life, social participation and intimate and sexual relationships.

Section 23 also states a right to equitable access — to assessment and reassessment conducted in a manner that is culturally safe, culturally appropriate, trauma-aware and healing-informed, and suitable for individuals living with dementia or other cognitive impairment — and a right to palliative and end-of-life care when required.

What section 24 does, and what it withholds

Section 24 is the provision that decides how the rights operate. Subsection (1) entitles an individual to the rights in s 23 when accessing or seeking to access funded aged care services. Subsection (2) states the intention of the Parliament that registered providers "must take all reasonable and proportionate steps to act compatibly with the rights specified in section 23", while recognising that limits on rights may be necessary to balance three things: competing or conflicting rights; the rights and freedoms of other individuals, including the provider's aged care workers and other individuals receiving services; and compliance with other laws of the Commonwealth or of a State or Territory, including the Work Health and Safety Act 2011.

Subsection (3) then withholds the remedy. Nothing in the Division creates rights or duties enforceable by proceedings in a court or tribunal. The Act's own note to s 24 directs the reader elsewhere: it is a condition of registration that certain providers demonstrate understanding of the Statement of Rights and have practices ensuring they act compatibly with it, and a person may complain to the Complaints Commissioner about a provider acting incompatibly with it.

The Statement of Principles

Section 25 states a separate Statement of Principles, beginning with the proposition that "the safety, health, wellbeing and quality of life of individuals is the primary consideration" in the delivery of funded aged care services. The principles describe what the system supports providers in doing, including putting older people first and recognising the rights of individuals under the Statement of Rights. The two Statements are distinct instruments within the Act and should not be cited interchangeably.

How the rights reach a provider: conditions of registration

The enforcement route runs through registration. Section 144(1) makes it a condition of registration that a registered provider of a kind prescribed by the rules must demonstrate that it understands the rights of individuals under the Statement of Rights, and must "have in place practices to ensure that the provider acts compatibly with the Statement of Rights", in accordance with s 24(2). Section 144(2) makes it a condition that such a provider demonstrate it understands that safety, health, wellbeing and quality of life are the primary consideration.

Two further conditions sit alongside it. Section 145 makes it a condition of registration that a provider comply with the Aged Care Code of Conduct and take reasonable steps to ensure its aged care workers and responsible persons comply with it. Section 146 makes it a condition that a provider of a kind prescribed by the rules comply with the Aged Care Quality Standards. A breach of the Statement of Rights is therefore analysed as a failure to meet a condition of registration, not as a cause of action.

What the Act leaves to the rules

Two of the three instruments a provider must comply with are not in the Act at all. Section 14 provides that the rules may prescribe requirements relating to the conduct of registered providers, their aged care workers and their responsible persons; the Act defines the Aged Care Code of Conduct as the rules made for the purposes of s 14. Section 15(1) provides that "the rules may prescribe standards relating to the quality of funded aged care services delivered by a registered provider", and the Act defines the Aged Care Quality Standards as the rules made for the purposes of s 15(1).

Section 15(2) indicates, without limiting the power, the matters those standards may address, including how providers treat and engage with individuals, governance arrangements, the physical environments in which services are delivered, and the delivery of quality and safe clinical care. A student answering on the standards must therefore work from the current rules and cite them, not from the Act.

Applying this in a problem question

1. Identify which instrument the complaint is really about: the Statement of Rights, the Code of Conduct, or the Quality Standards.
2. If it is the Statement of Rights, apply s 24(3) before considering any remedy, and do not frame the answer as a cause of action.
3. State the s 24(2) standard in the Act's own words — all reasonable and proportionate steps to act compatibly — rather than as a duty to comply.
4. Work through the three balancing matters in s 24(2)(a)–(c), and identify which is engaged on the facts.
5. Identify the condition of registration that carries the obligation: s 144 for the rights, s 145 for the Code of Conduct, s 146 for the Quality Standards.
6. For any obligation sourced in the rules, cite the current rules made under s 14 or s 15(1), and identify the compilation relied on.

Self-check

• Have I applied s 24(3) before treating a right as enforceable?
• Have I kept the Statement of Rights and the Statement of Principles distinct?
• Have I named the condition of registration that carries the obligation?
• Have I cited the rules rather than the Act for the Code of Conduct and the Quality Standards?