In Australia, the only laws restricting visitors in aged care are in State and Territory directions.
It is important to read the text of these directions when you are finding out your rights to visit or be visited.
It is important to read the text of these directions if you are an Aged Care Facility thinking about restricting visitors – or movement of residents.
There is NO LEGISLATION in Australia giving Aged Care Facilities the express broad power to decide whether to detain residents or restrict visitors. If your Aged Care Facility is doing this kind of thing. Tell them they have no legal power to do it, and see what they say.
Just to be clear, fear of Covid is not a law. It’s just a feeling. It doesn’t create the power to turn yourself into a detention centre. So “fear of Covid” is not an answer that justifies broad detention.
Further, it must be emphasised that the State and Territory government directions are not only part of a statutory regime, but they are also based on statutory health officers’ advice. They are not based on whim or just feelings of fear.
Contrast this to the Aged Care Facility who makes “rules” or “policies” based on their feelings of fear, without statutory regimes, and without the advice of statutory health officers.
Here are some links to State and Territory directions. Make sure you read these and quote from them.
- Don’t rely on summaries with little captions and dot points. Even if those summaries are on government websites!
- Don’t believe what the Aged Care Facilities tell you. Their summaries, from what I can see, are nearly always wrong!
- Don’t be bamboozled by the answer “it’s our policy”. Policy does not change the law.
- And don’t pay attention to industry guidelines if you are checking your legal rights. They are not law. They don’t create visiting rights and they sure as anything can’t limit legally enforceable rights! (And government decision makers shouldn’t be referring to them all the time, either. It just confuses people and hides the real source of statutory power to limit rights.)
If you have legal rights, you need to check the law. Use the law to assert your legal rights.
| STATE | LINK TO LEGISLATION | EXAMPLE NUMBERS/TITLES (THIS COLUMN IS NOT UP TO DATE) |
| VICTORIA | Care Facilities Directions | Eg No 40 from 5 August 2021 |
| NSW | Public Health Orders | Eg Public Health (Covid-19 Additional Restrictions for Delta Outbreak) Order 2021 (No 2). |
| ACT | Public Health Emergency Directions | Eg Public Health (Residential Aged Care Facilities) Emergency Direction 2021 (No 4) |
| QLD | Public Health Regulations | Eg Public Health (Further Extension of Declared Public Health Emergency—COVID-19) Regulation (No. 2) 2021 |
| SA | Emergency Management Directions | Eg Emergency Management (Residential Aged Care Facilities No 39) (Covid-19) Direction 2021 |
| WA | Public Health Emergency Declarations | Eg Visitors to Residential Aged Care Facilities Directions (No 7) |
| NT | Directions | Eg Covid-19 Directions (No 33) 2021: Directions for Aged Care Facilities |