1. Aged Care
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​A.  Overview

COVID-19 has had a clear and tragic impact on the ageing population in Australia. This has resulted in legislation specific to aged care, varying from economic support to the aged care sector to prohibitions on visitors to aged care facilities. These new measures will undoubtedly also result in litigation, and decisions by courts.

B.  Legislation

Commonwealth:
Aged Care Act 1997 (Cth) amended by the Aged Care Legislation Amendment (Emergency Leave) Act 2020 (Cth).

Made under the Aged Care Act:  
Made under the Aged Care (Transitional Provisions) Act 1997 (Cth):
Made under the Aged Care Act and the Aged Care (Transitional Provisions) Act 1997 (Cth):
  • Aged Care Legislation Amendment (Subsidies—COVID‑19 Support) Instrument 2020: amends multiple instruments to prescribe a new ‘other supplement’ for the purposes of sections 44-27 and 52-1 of the Aged Care Act 1997 and sections 44-27 and 52-1 of the Aged Care (Transitional Provisions) Act 1997. The new ‘other supplement’ is the COVID-19 support supplement which is payable to approved providers of residential care and flexible care.

Victoria:
Made under the Public Health and Wellbeing Act 2008 (Vic):
New South Wales:
Made under the Public Health Act 2010 (NSW):
Retirement Villages Act 1999 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW): enables the Minister for Better Regulation and Innovation to grant, by order published in the Gazette, exemptions from provisions of, or under, the Retirement Villages Act 1999 (NSW) that require non-compliance with an order under s 7 of the Public Health Act 2010 (NSW) relating to COVID-19. The amendment also enables the Minister to require, by the giving of a compliance notice, compliance with a condition of an exemption.

Made under the Retirement Villages Act 1999:
  • Retirement Villages (COVID-19 Services & Facilities) Order 2020: to exempt the operator of a retirement village from liability for non-compliance with the following provisions of the Retirement Villages Act 1999 (NSW) – (a) section 60 variation in services or facilities provided at village; (b) section 61 operator not to reduce or withdraw certain services and facilities; (c) section 62 consequence of unlawful variation in services and facilities, in circumstances where the operator of a retirement village is acting pursuant to a Public Health Order issued under the Public Health Act 2010 (NSW).
  • Retirement Villages (COVID-19 Meeting Requirements) Order 2020: to exempt the operator of a retirement village from liability for non-compliance with the following provisions of the Retirement Villages Act 1999 (NSW) – (a) section 41 new operator to convene meeting of residents; (b) section 69A right to request residents current village contract information meeting; (c) section 72 meeting between Residents Committee and operator, in circumstances where the operator of a retirement village is acting pursuant to a Public Health Order issued under the Public Health Act 2010 (NSW).
  • Retirement Villages (COVID-19 Village Rules) Order 2020:  to exempt the operator of a retirement village from liability for non-compliance with s 51 of the Retirement Villages Act 1999 (NSW) regarding amendment of village rules, in circumstances where the operator of a retirement village is acting pursuant to a Public Health Order issued under the Public Health Act 2010 (NSW).
  • Retirement Villages (COVID-19 Budget and Expenditures) Order 2020:  to exempt operators and residents of a retirement village from various provisions of the Retirement Villages Act 1999 (NSW) regarding meetings, variations, expenditures and appointment of auditors, when acting pursuant to a Public Health Order
    issued under the Public Health Act 2010 (NSW).
  • Retirement Villages (COVID-19 Access to Retirement Villages) Order 2020:  to exempt the operator of a retirement village from liability for non-compliance with the following provisions of the Retirement Villages Act 1999 (NSW) – (a) section 169 operator not to interfere in sale; (b) section 177 operator not to interfere in letting, in addition to clause 11(2)(d) and (e) of Schedule 3A of the Retirement Villages Regulation 2017, in circumstances where the operator of a retirement village is acting pursuant to a Public Health Order issued under the Public Health Act 2010 (NSW).
  • Retirement Villages (COVID-19 Consent of Residents) Order 2020:  to exempt the residents of a retirement village from liability for non-compliance with the following provisions of the Retirement Villages Act 1999 (NSW) – (a) Section 9 consent of residents; (b) Schedule I consent of residents, as well as the Schedule 6 provisions relating to consent of residents in the Retirement Villages Regulation 2017, in circumstances where the residents of a retirement village are acting pursuant to a Public Health Order issued under the Public Health Act 2010 (NSW).​
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Queensland:
Made under the Public Health Act 2005 (Qld):  
Tasmania:
Made under the Public Health Act 1997 (Tas):  
South Australia:
Made under the COVID-19 Emergency Response Act 2020 (SA):  
Made under the Emergency Management Act 2004 (SA):  
Western Australia:
Made under the Public Health Act 2016 (WA):  
Australian Capital Territory:
Made under the Public Health Act 1997 (ACT):
Retirement Villages Act 2012 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT)​. 

Northern Territory: 
Made under the Public and Environmental Health Act 2011 (NT):  
C.  Case law

This is an area of substantive law that is very likely to result in case law. As of the last update, we are not aware of any relevant decision of a superior court in this area.

D.  Further resources