Your questions answered

What’s an advisory body?

An advisory body is a group of people who provide insight and advice to the governing body on issues an organisation may face. An advisory body can be known by different names, including:  

• advisory panel
• advisory council
• steering committee
• think tank  
• board of advice.

An advisory body isn’t a governing body and doesn’t have the obligations of a governing body. 

What’s a governing body?

Many for-profit and non-profit organisations are required by law to have a governing body. Under the new Aged Care Act 2024 (new Aged Care Act), a governing body of a registered provider means:

• if the provider is a body corporate incorporated, or taken to be incorporated, under the Corporations Act 2001, it refers to the board of directors
• in any other case, it refers to the person or group of people responsible for the executive decisions of the provider.

Your organisation’s governing body might be called a board of directors, board of trustees, committee, management committee, council, governing board or responsible entity, depending on your organisation’s legal form or constitutions. The people who serve on your governing body can be called board members, directors, committee members, non-executive directors or trustees.

What do you mean by the term ‘Independent non-executive governing body member’?

There’s no definition of independent non-executive governing body member in the new Aged Care Act. We encourage registered providers to read the principles in the Australian Securities Exchange (ASX) Corporate Governance Principles and Recommendations, specifically Principle 2. 

What do you mean by the term ‘Clinical Care’?

Clinical care is health care that includes:  

• the prevention, treatment and management of illness or injury
• looking after psychosocial, mental and physical wellbeing.  

It includes care provided by doctors, nurses, pharmacists, allied health professionals and other regulated health practitioners. Organisations providing clinical care need to make sure the care they provide:

• is best practice
• meets older people’s needs
• optimises older people’s health and wellbeing. 

What are the governing body membership requirements?

Providers need the right mix of people in their governing body to help them keep improving and providing the quality care and services older people deserve. Under the new Aged Care Act, specific providers must make sure their governing body has:

• a majority of independent non-executive members
• at least one member with experience in providing clinical care.  

Providers who are a co-operative must ensure that their governing body members do a training course on governance within 6 months of their appointment to the governing body. The training course must be focused on co-operatives or include course materials on co-operatives. 

Do the governing body membership requirements apply to all registered providers?

No. You don’t need to meet the governing body requirements if:

• you are only registered in registration categories 1, 2, 3 or 4  
• you have fewer than 5 members on your governing body and fewer than 40 older persons receiving funded aged care services
• you’re a government entity or a local government authority
• you’re an Aboriginal Community Controlled Organisation. 

Our organisation is owned by another company that supervises our operations. They have board members who could also be members of our governing body. Would that be okay?

Joining your governing body could look like a conflict of interest (an ‘apparent’ conflict of interest) or lead to an actual conflict of interest for these board members.

Under the new Aged Care Act, providers that are corporations must make sure their constitution doesn’t let any director of the organisation act in the best interests of the holding company. That means Directors should act in the best interests of the people receiving care.

Even with this constraint, a conflict of interest could still happen. As a provider you would need to be able to show that these people’s roles did not conflict. They need to be independent when making decisions as part of your governing body.

If you appointed them to your governing body and they had ongoing or recurring conflicts of interest, you would have to think about if they were suitable to stay in the role. 

I have a governing body with fewer than 5 members and I provide aged care to 41 older people. Do I need to meet the governing body membership requirements? It’s only one person over the limit.

Yes. You are only exempt from the 2 governing body membership requirements if:

• your organisation provides care for fewer than 40 people and  
• you have fewer than 5 governing body members.

(Or if you are a government entity, a local government authority or an Aboriginal Community Controlled Organisation.)

Your organisation has fewer than 5 members in the governing body, but you have more than 40 older people receiving aged care services, so you need to meet the 2 governing body membership requirements. If you can’t after having explored and tested all your options, you can apply for a determination. 

We want to meet the governing body membership requirements, but our organisation is small. It’s only one service and we are in a remote area. This makes it hard to find people for our governing body locally. How can we meet the requirement?

We know it can be hard for providers in rural or remote areas to meet one or both of the governing body membership requirements. It can be difficult to attract and keep skilled staff with clinical care experience. It can also be difficult or expensive to find suitable independent non-executive members. We understand that you might need more time to comply.

Have you thought about:

• using technology to engage members from neighbouring towns or medical practices remotely
• working with other registered providers in the same circumstances? You might be able to work together to find a solution that works for both of you.

If you have explored and tested all your options but still can’t meet the requirements, you can apply for a determination.  

What do I do if I can’t meet the governing body membership obligations?

You can apply to us for a determination decision. We may determine that you don’t have to meet the governing body membership obligations.

The new Aged Care Act sets out:  

• how to request a determination
• what matters we need to think about when deciding whether to approve a determination.

The Commissioner or their delegate make determination decisions.

The determination matters they think about are:

• the number of funded aged care services you provide care at
• the number of older people you deliver those services to
• where those services are
• your annual turnover of responsible persons
• your governing body members
• any efforts you’ve made, or will make, to help your governing body:
  • act objectively and independently in the best interests of the provider
  • get advice from a person with clinical care experience, when needed
• any other requirements that apply under Australian, state or territory law
• matters prescribed by the Rules, which includes:
  • your history of compliance with governance conditions
  • if you have a history of non-compliance with the governance conditions, the circumstances of that history and the steps you have taken to become compliant
  • any other matters we think are relevant.

You can find the determination provisions in section 159 of the new Aged Care Act.

What’s the difference between a governing body and a board of directors?

‘Governing body’ and ‘board of directors’ are names for groups of people at the top level of an organisation that supervise how the organisation runs. If a registered provider is not incorporated under the Corporations Act 2001, its governing body is the group responsible for its executive decisions.

Governance structures are different for each organisation. You need to understand and document:

• who your key stakeholders are, and what their roles are. For example, are they directors on a board, governing body members or managing executives? The role of a board of directors and how much it’s involved in the day-to-day management of an organisation can vary a lot. It depends on the type of organisation, and the size, nature and complexity of its business or activities
• the powers each stakeholder has and where these powers come from (for example, do they powers come from legislation, your constitution, or other documents)
• what each stakeholder needs to report on, and to whom (for example, the CEO reports to the board, the board reports to members)
• the extent of the decision-making powers board members and executive managers have.

We’re a small family-run service. Our managers are family members. We pride ourselves on being family run. It’s one of our strengths. We‘re worried about other people joining our governing body and changing our organisation. Why do we have to have independent non-executive members?

Governing bodies are responsible for the care and services an organisation provides. The governing body membership requirements aim to:  

• strengthen organisations’ leadership and culture  
• support the best interests of older people.

The Royal Commission found that non-executive members are important. They help governing bodies be independent and objective. They play a valuable role in challenging, monitoring and holding management to account.

For governance to be effective, the governing body and the key staff who run the organisation day-to-day must be separate. When thinking about who should be on your governing body, reach out to like-minded people in the community who:

• share your values
• share your interest in improving aged care  
• have skills and knowledge that your other governing members don’t have.

An independent non-executive member will give objective input into your decision making and hold management to account. But it won’t affect the ownership of your family-run business.

Where can I find someone to join my governing body?

You can advertise your governing body vacancy with associations that advertise board vacancies for aged care services. There could be a membership fee to access these services.

You can also collaborate with other nearby registered providers, or health or medical centres to find independent members for your governing body.

Here are a few more ideas:

• Advertise your governing body role in other places. You can have someone on your governing body who isn’t local but can meet and give input and advice online.
• Ask your aged care industry peak body or industry association for help, if you’re a member.
• Talk to other local registered providers and ask what they’ve done.
• Get help from an aged care consultant.

If you’ve explored these options (or others) without success, or they’re not available to you, you can apply for a determination. Make sure you tell us everything you’ve done to try to meet the requirements. 

We’re a home care provider that doesn’t provide clinical care. Do we need to have a clinical care representative on our governing body?

You need to have a governing body member with experience providing clinical care if you are not an Aboriginal Community Controlled Organisation, and you provide:

• nursing care  
• transition care  
• residential care, including respite care.  

If you’re one of these providers, you need to have a governing board member with clinical experience. The new Aged Care Act doesn’t say what type of clinical experience they need to have. This means your governing body can choose someone whose experience is relevant to the services you provide.

You don’t need to have a governing body member with experience providing clinical care if you’re a government entity or local government authority. 

I’ve found a person with clinical care experience who can be a member of our governing body. They’re not independent because they’re a family member of one of our company directors. Is that okay?

It could be. Think about who else is on your governing body. You need to have a majority of independent non-executive members. So, for example, if your governing body has 8 members and 5 of them are independent non-executive members, the other 3 members don’t have to be independent. The family member with clinical care experience could be one of those 3.  

To decide if the family member of the company director could be ‘independent’, think about the following:

• Will they be able to make decisions without being influenced or coerced?
• Are they also a staff member or manager?
• Do they own shares or receive an income from the organisation (for example, under a family trust)?
• Will they be fair and unbiased? Will they make sure that your governing body’s decisions lead to positive and meaningful outcomes for older people?  
• How will you identify and disclose any actual or apparent conflicts of interest that could affect their ability to be fair and unbiased? 

Do determination decisions apply to the provider or service?

We give determination decisions to the provider, not the service through which the provider delivers care.

I‘m a registered provider that’s exempt from the governing body requirements. Do I need to apply for a determination?

No. If you meet the criteria that exempt you from the governing body requirements, we apply them automatically. You don’t need to apply for a determination.

The criteria are:

• You have fewer than 5 members on your governing body and provide aged care to fewer than 40 people.
• You are a government entity or local government authority.
• You are an Aboriginal Community Controlled Organisation.  

If you‘re exempt from the governing body requirements, you still need to meet your obligations under the new Aged Care Act, the strengthened Aged Care Quality Standards and the Aged Care Rules 2025. 

I’m worried I won’t be able to meet the requirements and want to apply for a determination. What’s the process?

If you need a determination from the Commission for one or both governing body membership requirements, you can complete the Governing Body Determination form on the Government Management Provider System (GPMS).  

To support your application, you’ll need to:

• provide evidence of how you will provide quality care without meeting the governance requirements  
• upload all the required supporting documents – this will help us make a decision more quickly
• make sure your supporting documents clearly show how your executive decision-making will stay independent and objective
• show that your governing body has the experience and skill to understand care delivery reports and identify possible risks or issues.

When we process your request, we can ask you for more supporting documentation if we need it. This can delay our decision.  

You can find more information about the application process at Request a determination webpage.  

What are you looking for when you assess a request for a determination?

Section 159 of the new Aged Care Act lists the matters the Commissioner can consider (think about) during the assessment process.

These matters include:

• the number of funded aged care services you provide aged care at
• the number of older people you deliver those services to
• where those services are
• your annual turnover of responsible persons
• your governing body members
• any efforts you’ve made, or will make, to help your governing body:
  • act objectively and independently in the best interests of the provider
  • get advice from a person with clinical care experience
• any other requirements that apply under Australian, state or territory law
• matters prescribed by the Rules, which includes:
  • your history of compliance with governance conditions
  • if you have a history of non-compliance with the governance conditions, the circumstances of that history and the steps you have taken to become compliant
  • any other matters we think are relevant.

The Governing Body Determination form includes space for you to give us the information we need to consider those matters.

We will only give a determination decision to a registered provider, not to a specific service. 

Can I get a determination decision for the advisory body requirements?

No. We can’t make a determination decision about a quality care advisory body or a consumer advisory body. 

If our determination is approved, how long will we have before we need to meet the governing body membership obligations? 

All registered providers are different. We assess each determination based on the provider’s circumstances and their reasons for wanting a determination.

We will set a determination period, or it will last until we revoke (cancel) it.  

If we make a determination decision about membership obligations, we can decide to vary (change) or revoke (cancel) it, if appropriate. We won’t vary or revoke a determination decision without speaking with you. 

What if I only need a determination decision for 3 months? 

We have set a maximum timeframe of 12 months to give providers enough time to meet the requirements.

If you’d like a shorter amount of time, let us know in the application form. Make sure you explain why so we can make an informed decision.

What if I need more time than the Commissioner gives me to meet the requirements?

We’ll contact you about half-way through the determination period. You can tell us about your progress toward meeting the requirement and any unexpected issues that may stop you from having a governing body at the end of the determination period.

You can email us at any time during the determination period  at governingbodyapplications@agedcarequality.gov.au 

Who can I contact if I have further questions?

If you have questions, you can:

• call us on 1800 951 822 – ask to speak with someone in the Determinations team
• email us at governingbodyapplications@agedcarequality.gov.au