Carers recognition legislation compared
The eight State and Territory carers Acts compared on the four things that decide cases: who counts as a carer, how strong the Charter obligation is, who is bound, and why none of it is enforceable by a carer.
Learning outcomes
- Identify which drafting technique each jurisdiction uses to define a carer, and when the definition sends the reader to another Act.
- Rank the Charter obligations by the verb each statute uses, from comply to awareness and understanding.
- Determine whether a contracted service provider is within the bound class in a given jurisdiction.
- Apply the non-enforceability provisions and redirect a carer to a remedy that exists.
All eight States and Territories have a carers recognition Act, and the Commonwealth has one too. They look alike — a definition of carer, a Charter, an obligation on organisations — and they are not alike. This article compares the eight State and Territory statutes on the four things that decide cases: who counts as a carer, how strong the obligation is, who is bound, and whether anything is enforceable.
The last of those has one answer everywhere, and it is the answer a client needs first.
Nothing here is enforceable by a carer
Carers recognition statutes create duties running to organisations, not rights running to carers. Two jurisdictions say so expressly, and their provisions are the ones to cite.
Section 9(1) of the Carers (Recognition) Act 2010 (NSW) creates no civil cause of action.1
Section 8 of the Carer Recognition Act 2023 (Tas) goes further, and is the clearest statement of the position in Australia: nothing in the Act gives rise to, or is to be taken into account in, any civil cause of action; nothing operates to create in any person any legal rights; and nothing provides grounds for review of a judicial or administrative act or omission.6
Section 8 of the Carers Recognition Act 2012 (Vic) does related work by subordinating the Act to any inconsistent Act.2
Where a client's real complaint is that an agency ignored their caring role, the remedy is elsewhere — in the decision-making statute the agency was applying, in anti-discrimination law, or in a complaints jurisdiction. An answer that finds a Charter breach and stops has not finished.
Who counts as a carer
Three drafting techniques are in use, and the choice determines the prior question.
Cross-referenced definitions. Western Australia and the Northern Territory define a carer by reference to grounds drawn from other statutes — disability and mental illness as defined in named Acts (s 5(1) of each). So the prior question in those jurisdictions is which definition the cross-reference imports, and the answer is in a different Act.
Self-contained definitions. Tasmania's Carer Recognition Act 2023 defines the six grounds on its own terms in s 4, with no cross-references. There is no prior question.
Reason-based or relationship-based definitions. South Australia defines a care relationship in s 5(1) by reference to five reasons. The ACT defines a care relationship in s 6 by five grounds including kinship and foster care. Victoria defines it in s 4 by reference to either party and four grounds of need — a two-sided definition unusual in this family. New South Wales uses four categories of need in s 5(1). Queensland works from non-contractual and unpaid ongoing care in s 6, with express provision for grandparents.3
Tasmania adds a relational limit that no other jurisdiction has: the care must be provided to a family member, or friend. Care for a stranger, however substantial, is outside the definition on its face.
The exclusions, and one important inclusion
Most of these Acts exclude paid, volunteer and training relationships, though by different means. Western Australia excludes contracted and community work care (s 5(2)(a)). South Australia excludes paid, volunteer and training relationships (s 5(2)).4 New South Wales excludes those and mere family relationship (s 5(2) and (3)). The ACT excludes mere relationship or cohabitation, and paid, volunteer and training care. Tasmania needs no exclusions at all, because unpaid is built into its definition.
The inclusion to remember is s 6(5) of the ACT's Carers Recognition Act 2021: carer status is preserved despite government financial assistance.7 Receiving a carer payment does not stop a person being a carer. Clients assume the opposite.
How strong is the obligation
This is the axis on which the statutes differ most, and they can be ranked.
| Standard | Jurisdiction | Provision | |---|---|---| | Comply with the Charter | WA | s 6(1), Carers Recognition Act 2004 | | Reflect the Charter's principles in service delivery | NT | s 6(1), Carers Recognition Act 2006 | | Take reasonable steps to implement the Charter | Tas | s 7(1), Carer Recognition Act 2023 | | Awareness and understanding of the Charter | NSW, SA | s 7(1) (NSW); s 6(1) (SA) |
Western Australia's is the strongest obligation in the country.85 New South Wales and South Australia require only that an organisation ensure awareness and understanding — a state of mind, not a course of conduct.
There is a second, separate duty in two jurisdictions. Section 6(2) of the Western Australian Act requires public sector bodies to involve carers in anything that might affect them. Section 6(2) of the Northern Territory Act requires Agencies to consult carers on matters relevant to carers. Involve is stronger than consult, and might affect is a lower threshold than relevant to, so the Western Australian duty is the more demanding of the two despite the common structure.
Who is bound
The class of bound organisation varies more than students expect, and it decides whether a contracted service provider is caught.
The Northern Territory reaches furthest. It distinguishes reporting organisations from applicable organisations, the latter extending down the contracting chain to entities delivering services under contract, and s 7(1) requires a reporting organisation to report on its contractors' Charter compliance as well as its own.
Tasmania reaches least far. Section 7 binds State Service Agencies only. A contracted provider is not bound.
South Australia binds applicable organisations as defined in s 4. New South Wales binds human services agencies (s 7(1)). Queensland works through public and funded entities under the s 7 charter.
Reporting
Only some of these Acts require reporting, and only one requires it to the public.
Section 7 of the Northern Territory Act requires an annual report to the Minister within three months of the end of the financial year, and requires a copy to be available for inspection by the public at the organisation's office. No other jurisdiction covered here imposes a direct public access obligation.
Tasmania requires Agencies to monitor and report to the Minister (s 7(2)), with no cycle or deadline stated in the Act.
A working method
- Test the definition first, and identify which technique the jurisdiction uses. If it cross-references, go to the other Act before saying anything.
- In Tasmania, test the relationship — family member or friend — as an element.
- Classify the organisation before selecting the duty, and in the Northern Territory decide whether it is a reporting or an applicable organisation.
- State the obligation in the statute's own verb — comply, reflect, take reasonable steps, be aware.
- Then apply the non-enforceability provision and redirect the client to a remedy that exists.
Self-check
- Have I checked whether the definition sends me to another Act?
- Have I used the jurisdiction's own verb for the obligation rather than a generic one?
- Have I asked whether a contracted provider is within the bound class?
- Have I told the carer, plainly, that the Charter gives them nothing to sue on?