Carers recognition in the ACT 

This article states the law of the Australian Capital Territory. The Carers Recognition Act 2021 (ACT) defines a care relationship more broadly than its interstate counterparts in two specific respects, and a student who applies another jurisdiction's definition will get both wrong¹. The prior question is whether a care relationship exists at all, because everything the Act does flows from that.

When a care relationship exists

Section 6(1) provides that a person is in a care relationship with another if the first person — the carer — provides care to the other for one or more of five reasons: the other person has a disability; has a mental disorder or mental illness; has an ongoing medical condition (with terminal or chronic illness, chronic pain and dementia given as examples); is aged and frail; or is a child or young person and the carer is a kinship carer or a foster carer for them.

The Act includes a worked example: a person with multiple sclerosis requiring constant care, whose spouse and three children aged 21, 16 and 11 share her care, would each be a carer. Multiple simultaneous carers are contemplated, and no minimum age is imposed — an 11-year-old in that example is a carer for the Act's purposes.

The kinship and foster carer limb

Paragraph (e) has no counterpart in the New South Wales, Victorian, South Australian or Queensland definitions examined. Those Acts define carers by reference to the cared-for person's disability, illness, frailty or similar; the ACT adds a limb keyed not to the child's condition at all but to the carer's role as a kinship or foster carer.

Queensland reaches part of the same ground through its express grandparent provisions in s 6(2)–(3) of its Act, but by a different route and only for grandparents. The ACT states the category directly.

Two different exclusions

Section 6(3) and s 6(4) do different work and should not be run together.

Section 6(3) provides that a person is not in a care relationship only because they are a domestic partner, parent, child or other relative of the other person, or because they live with them. This is the same clarification New South Wales makes in s 5(3) of its Act: relationship and cohabitation are not the test, the provision of care is.

Section 6(4) excludes care provided under a contract of service or for the provision of services; as a volunteer for a charitable, welfare or community organisation, other than an approved kinship and foster care organisation; or as part of a course of education or training. These are the familiar three exclusions, but note the carve-out from the volunteer exclusion, which keeps approved kinship and foster care organisations inside the Act.

So s 6(3) removes an inference; s 6(4) removes a category. Applying one where the other belongs will produce the wrong answer.

Financial assistance does not defeat carer status

Section 6(5) provides that a carer in a care relationship "may include a person receiving financial assistance from the Territory or the Commonwealth government (however described) in relation to carrying out their role as a carer".

This is the most practically important provision in the section. A carer receiving a Commonwealth carer payment or allowance is not thereby brought within the s 6(4)(a) exclusion for care provided under a contract. Government income support is not payment for services under a contract, and the Act says so expressly rather than leaving it to inference.

None of the other carers statutes examined addresses the point directly, which makes the ACT provision a useful reference when the same question arises elsewhere — though it cannot be cited as authority outside the Territory.

Who is bound

Section 7 defines a care and carer support agency as a public sector support agency, a funded support agency, a secondary funded support agency, or an entity prescribed by regulation.

The inclusion of secondary funded support agencies is worth noting: the obligations reach beyond bodies directly funded by the Territory to those funded at one remove. Sections 8 and 9 state the care relationship principles for the treatment of carers and of persons in care relationships, and ss 10 to 12 impose the agency obligations.

Applying this in a problem question

1. Identify which of the five s 6(1) grounds is relied on, and consider paragraph (e) where a child is cared for by someone other than a parent.
2. Do not treat relationship or cohabitation as establishing the care relationship; apply s 6(3).
3. Apply s 6(4) as a separate question about the basis on which care is provided.
4. Where the carer volunteers through an organisation, check whether it is an approved kinship and foster care organisation.
5. Where the carer receives a carer payment or allowance, apply s 6(5) — it does not defeat carer status.
6. For agency obligations, confirm the body is a care and carer support agency under s 7, including the secondary funded category.

Self-check

• Have I considered the kinship and foster carer limb?
• Have I kept s 6(3) and s 6(4) as separate exclusions?
• Have I applied s 6(5) where government financial assistance is received?
• Have I confirmed the body is bound under s 7?