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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Aged Care
Amendment Bill 2000
No. ,
2000
(Health and Aged
Care)
A Bill for an Act to amend the
Aged Care Act 1997, and for other purposes
ISBN: 0642 45275X
Contents
Aged Care Act
1997 3
Aged Care Act
1997 8
A Bill for an Act to amend the Aged Care Act 1997,
and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Aged Care Amendment Act
2000.
(1) Subject to this section, this Act commences on the day after the day
on which it receives the Royal Assent.
(2) Schedule 2 commences on the 28th day after the day on which this
Act receives the Royal Assent.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 42-2(1)
After “this Part (other than section 42-3)”, insert
“and for the purposes of section 67A-5”.
2 Section 66-1
Omit “in writing”, substitute “under
section 67-5”.
3 Paragraph 66-1(a)
Omit “approval under Part 2.1” (last occurring).
4 Paragraph 66-1(b)
Omit “time the sanction is imposed”, substitute “the
*section 67-5 notice
time”.
5 Paragraph 66-1(c)
Omit “time the sanction is imposed” (wherever occurring),
substitute “the *section 67-5 notice
time”.
6 After paragraph
67-5(2)(c)
Insert:
(ca) if the sanction consists of revoking or suspending the allocation of
some or all of the *places allocated to the
approved provider under Part 2.2—the number of allocated places
subject to the sanction; and
(cb) an explanation of when the sanction takes effect (see
Division 67A); and
7 After Division 67 of
Part 4.4
Insert:
This Division applies if the Secretary gives a notice under
section 67-5 imposing a sanction on an approved provider.
The basic rule is that the sanction takes effect at the
*section 67-5 notice time.
However, there are 2 exceptions to the basic rule:
(a) deferral to a later time (see section 67A-4);
(b) progressive revocation or suspension of the allocation of some or all
of the *places allocated to the approved
provider under Part 2.2 (see section 67A-5).
(1) If:
(a) the Secretary decides that the sanction should take effect at a time
that is later than the *section 67-5
notice time; and
(b) that decision is set out in the section 67-5 notice;
the sanction takes effect at that later time.
(2) In making a decision under subsection (1), the Secretary must
have regard to the following:
(a) the desirability of allowing sufficient time for the taking of
reasonable steps to inform:
(i) each care recipient who is likely to be affected by the imposition of
the sanction; and
(ii) a next of kin of such a care recipient, or an individual who, in the
opinion of the Secretary, is concerned for the safety, health and well-being of
such a care recipient;
about:
(iii) the imposition of the sanction; and
(iv) the consequences under this Act of the imposition of the
sanction;
(b) any risk to the safety, health or well-being of care recipients to
whom the approved provider is providing care;
(c) any other matters specified in the Sanctions Principles.
(3) If:
(a) the sanction consists of revoking the approved provider’s
approval under Part 2.1 as a provider of
*aged care services; and
(b) the sanction is the only sanction imposed on the approved provider in
relation to non-compliance with one or more of its responsibilities under
Part 4.1, 4.2 or 4.3; and
(c) paragraph 66-2(1)(a) does not apply to the sanction;
then, in making a decision under subsection (1), the Secretary must
ensure that the sanction takes effect within 14 days after the
*section 67-5 notice time.
(1) This section applies to the sanction if:
(a) the sanction consists of revoking or suspending the allocation of some
or all of the *places allocated to the approved
provider under Part 2.2; and
(b) the Secretary decides that the sanction should take effect on a
progressive basis; and
(c) that decision is set out in the section 67-5 notice.
Vacant places
(2) If, immediately before the
*section 67-5 notice time, the approved
provider was not providing *aged care to a care
recipient in respect of an allocated
*place:
(a) the place is taken to be a vacant place for the purposes
of this section; and
(b) the sanction takes effect, in relation to the vacant place, at the
section 67-5 notice time.
Occupied places
(3) If, immediately before the
*section 67-5 notice time, the approved
provider was providing *aged care to a care
recipient in respect of an allocated
*place:
(a) the place is taken to be an occupied place for the
purposes of this section; and
(b) the sanction takes effect, in relation to the occupied place, when the
approved provider subsequently ceases to provide aged care to the care recipient
in respect of the occupied place.
(4) For the purposes of paragraph (3)(b), disregard an occupied place
if, at the time of the cessation, the sanction has already taken effect in
relation to the number of allocated *places
subject to the sanction.
Ancillary provisions
(5) This section does not apply unless the number of allocated
*places subject to the sanction exceeds the
number of vacant places.
(6) In making a decision under subsection (1), the Secretary must
have regard to matters specified in the Sanctions Principles.
Note: See also subsection 42-2(1), which is about the
provision of residential care when a care recipient is on leave under
section 42-2.
This Division has effect subject to section 66-2.
Note: Section 66-2 provides for sanctions not to take
effect in certain cases.
8 After subsection 68-2(1)
Insert:
(1A) The sanction period must be expressed to begin at the time the
sanction takes effect.
9 Clause 1 of
Schedule 1
Insert:
section 67-5 notice time, in relation to a sanction
imposed on an approved provider by a notice under section 67-5, means the
time when the notice is given to the approved provider.
10 Application of amendments—Part 4.4
of the Aged Care Act 1997
The amendments of Part 4.4 of the Aged Care Act 1997 made by
this Schedule apply to a sanction if a notice imposing the sanction is given
under section 67-5 of the Aged Care Act 1997 after the commencement
of this item.
1 Paragraph 3-4(c)
After “provided”, insert “, and the basic suitability of
their *key personnel”.
2 At the end of subsection 8-1(1) (before the
notes)
Add:
; and (d) the Secretary is satisfied that none of the applicant’s
*key personnel is a
*disqualified individual.
3 Paragraph 8-3(1)(a)
Omit “key personnel”, substitute
“*key personnel”.
4 Subsection 8-3(2)
Omit “key personnel”, substitute
“*key personnel”.
5 Subsection 8-3(3)
Omit “paragraph (1)(a) and subsection (2)”,
substitute “this Act”.
6 At the end of
section 8-3
Add:
(7) Paragraph 8-1(1)(d) and sections 10A-2, 10A-3 and 63-1A do not
limit this section.
7 Paragraph 9-1(1)(b)
Omit “key personnel”, substitute
“*key personnel”.
8 Subsection 9-1(2)
Omit “paragraph (1)(b)”, substitute “this
Act”.
9 After subsection 9-1(3)
Insert:
(3A) For the purposes of this section, if:
(a) there is a change of any of an approved provider’s
*key personnel; and
(b) the change is wholly or partly attributable to the fact that a
particular person is, or is about to become, a
*disqualified individual;
the approved provider is taken not to notify the change unless the
provider’s notification includes the reason why the person is, or is about
to become, a disqualified individual.
10 At the end of
Part 2.1
Add:
(1) For the purposes of this Act, an individual is a disqualified
individual if:
(a) the individual has been convicted of an indictable offence;
or
(b) the individual is an insolvent under administration; or
(c) the individual is of unsound mind.
(2) In this section:
indictable offence means:
(a) an indictable offence against a law of the Commonwealth or of a State
or Territory; or
(b) an offence that:
(i) is an offence against a law of a foreign country or of a part of a
foreign country; and
(ii) when committed, corresponds to an indictable offence against a law of
the Commonwealth or of a State or Territory.
insolvent under administration has the same meaning as in the
Superannuation Industry (Supervision) Act 1993.
(3) Paragraph (1)(a) applies to a conviction, whether occurring
before, at or after the commencement of this section.
(4) For the purposes of this section, an individual who is one of the
*key personnel of an applicant under
section 8-2 is taken to be of unsound mind if, and only if,
he or she is mentally incapable of performing his or her duties as one of those
key personnel.
(5) For the purposes of this section, an individual who is one of the
*key personnel of an approved provider is taken
to be of unsound mind if, and only if, he or she is mentally
incapable of performing his or her duties as one of those key
personnel.
(6) This section does not affect the operation of Part VIIC of the
Crimes Act 1914 (which includes provisions that, in certain
circumstances, relieve persons from the requirement to disclose spent
convictions and require persons aware of such convictions to disregard
them).
Offence committed by approved providers
(1) A *corporation is guilty of an
offence if:
(a) the corporation is an approved provider; and
(b) a *disqualified individual is one of
the corporation’s *key personnel, and the
corporation is reckless as to that fact.
Penalty: 300 penalty units.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) A *corporation that contravenes
subsection (1) is guilty of a separate offence in respect of each day
(including a day of a conviction for the offence or any later day) during which
the contravention continues.
Offence committed by individuals
(3) An individual is guilty of an offence if:
(a) the individual is one of the *key
personnel of an approved provider; and
(b) the approved provider is a
*corporation; and
(c) the individual is a *disqualified
individual, and the individual is reckless as to that fact.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Validity of acts of disqualified individuals and
corporations
(4) An act of a *disqualified individual
or a *corporation is not invalidated by the
fact that this section is contravened.
Unacceptable key personnel situation
(1) For the purposes of this section, an unacceptable key personnel
situation exists if:
(a) an individual is one of the *key
personnel of an approved provider; and
(b) the approved provider is a
*corporation; and
(c) the individual is a *disqualified
individual.
Grant of orders
(2) If an unacceptable key personnel situation exists, the Federal Court
may, on application by the Secretary, make such orders as the court considers
appropriate for the purpose of ensuring that that situation ceases to
exist.
(3) In addition to the Federal Court’s power under
subsection (2), the court:
(a) has power, for the purpose of securing compliance with any other order
made under this section, to make an order directing any person to do or refrain
from doing a specified act; and
(b) has power to make an order containing such ancillary or consequential
provisions as the court thinks just.
Grant of interim orders
(4) If an application is made to the Federal Court for an order under this
section, the court may, before considering the application, grant an interim
order directing any person to do or refrain from doing a specified
act.
Notice of applications
(5) The Federal Court may, before making an order under this section,
direct that notice of the application be given to such persons as it thinks fit
or be published in such manner as it thinks fit, or both.
Discharge etc. of orders
(6) The Federal Court may, by order, rescind, vary or discharge an order
made by it under this section or suspend the operation of such an
order.
Definition
(7) In this section:
Federal Court means the Federal Court of Australia.
11 Section 53-1
Before “(see Part 4.3)”, insert “, and the basic
suitability of their *key
personnel”.
12 Part 4.3 (heading)
Repeal the heading, substitute:
13 Division 63 of Part 4.3
(heading)
Repeal the heading, substitute:
14 After section 63-1
Insert:
(1) The responsibility of an approved provider in relation to the basic
suitability of its *key personnel is to comply
with subsection (2).
(2) An approved provider must take all reasonable steps to ensure that
none of its *key personnel is a
*disqualified individual.
15 Clause 1 of
Schedule 1
Insert:
disqualified individual has the meaning given by
section 10A-1.
16 Clause 1 of
Schedule 1
Insert:
key personnel:
(a) in relation to an applicant under section 8-2—has the
meaning given by subsection 8-3(3); and
(b) in relation to an approved provider—has the meaning given by
subsection 9-1(2).