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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Aged Care
Income Testing Bill 1997
No. ,
1997
(Health and Family
Services)
A Bill for an Act to provide for
determining the ordinary income of certain persons, and for related
purposes
9701520—1,000/24.2.1997—(15/97)
Cat. No. 96 7214 1 ISBN 0644 497211
Contents
A Bill for an Act to provide for determining the ordinary
income of certain persons, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Aged Care Income Testing Act
1997.
This Act commences on the day on which it receives the Royal
Assent.
In this Act, unless the contrary intention appears:
hostel resident means:
(a) an existing resident within the meaning of section 10D of the Aged
or Disabled Persons Care Act 1954; or
(b) a new resident within the meaning of that section.
income support payment means:
(a) an income support payment within the meaning of subsection 23(1) of
the Social Security Act 1991; or
(b) an income support supplement; or
(c) a payment of farm household support, or a drought relief payment,
under the Farm Household Support Act 1992; or
(d) a payment of benefit under Part 2 of the Student and Youth
Assistance Act 1973.
income support supplement means an income support supplement
under Part IIIA of the Veterans’ Entitlements Act 1986.
nursing home resident means an approved nursing home patient
within the meaning of the National Health Act 1953, but does not include
a short-term respite care patient within the meaning of that Act.
officer has the same meaning as in the Public Service Act
1922.
ordinary income has the meaning given in section 7. However,
section 8 may affect the meaning of this term in certain cases.
personal information has the same meaning as in the
Privacy Act 1988.
protected information has the meaning given by section
15.
receive has the same meaning as in subsection 23(1) of the
Social Security Act 1991.
Secretary means the Secretary to the Department of Health and
Family Services.
service pension has the same meaning as in subsection 5Q(1)
of the Veterans’ Entitlements Act 1986.
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repealed as set out in the applicable items in the Schedule concerned, and any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) The Secretary may, in writing, determine the ordinary income of a
nursing home resident or a hostel resident.
Note 1: The Secretary can delegate functions related to
determinations of ordinary income to the Secretary to the Department of Social
Security and to the Secretary to the Department of Veterans’
Affairs.
Note 2: Determinations are reviewable under Part 3, except
for determinations made by the Secretary to the Department of Social Security
which are reviewable under Chapter 6 of the Social Security Act
1991.
(2) A determination takes effect on the day on which the determination is
made.
The Secretary may, by notice in writing, request one or more of the
following:
(a) a person whose ordinary income is to be determined under section
5;
(b) a person acting for or on behalf of that person;
(c) any other person whom the Secretary believes has information necessary
for making the determination;
to give to the Secretary such information as is specified in the notice for
the purposes of making the determination.
Note: A person is not obliged to provide the
information.
(1) If the nursing home resident or hostel resident is not receiving a
service pension or an income support supplement, his or her ordinary income is
the amount that would be his or her ordinary income for the purpose of
applying Module E of Pension Rate Calculator A at the end of section 1064 of the
Social Security Act 1991.
(2) If the nursing home resident or hostel resident is receiving a service
pension, his or her ordinary income is the amount that would be his or her
ordinary income for the purpose of applying Module D of the Rate Calculator at
the end of section 41 of the Veterans’ Entitlements Act
1986.
(3) If the nursing home resident or hostel resident is receiving an income
support supplement, his or her ordinary income is the amount that would be his
or her adjusted income for the purpose of applying Module E of the Rate
Calculator at the end of section 45X of the Veterans’ Entitlements Act
1986.
If:
(a) a person is receiving a pension under Part II or IV of the
Veterans’ Entitlements Act 1986 at a rate determined under or by
reference to subsection 30(1) of that Act; and
(b) the person is also receiving an income support payment, the rate of
which is reduced to take account of the pension referred to in paragraph
(a);
the person’s ordinary income under section 7 is taken to be reduced
by an amount equal to 2 times the difference between:
(c) the rate that would have been the rate of the income support payment
if the person was not receiving the pension referred to in paragraph (a) but was
receiving an additional amount of other income equal to the rate of that
pension; and
(d) the rate of the income support payment.
(1) The Secretary must notify a nursing home resident or hostel resident
of any determination of the resident’s ordinary income.
(2) The notice must:
(a) be in writing; and
(b) set out the reasons for making the determination; and
(c) set out any other information determined in writing by the
Minister.
(1) The Secretary may reconsider a determination under section 5 if the
Secretary is satisfied that there is sufficient reason to reconsider the
determination.
Note : The Secretary can delegate functions related to
reconsidering determinations to the Secretary to the Department of
Veterans’ Affairs.
(2) However, this section does not apply to a determination under section
5 by:
(a) the Secretary to the Department of Social Security; or
(b) a person to whom the power to make such a determination is
sub-delegated under subsection 20(4).
(3) The Secretary may reconsider a determination even if:
(a) an application for reconsideration of the determination has been made
under section 11; or
(b) if the determination has been confirmed, varied or set aside under
section 11—an application has been made under section 14 for review of the
determination.
(4) After reconsidering the determination, the Secretary must:
(a) confirm the determination; or
(b) vary the determination; or
(c) set the determination aside and substitute a new
determination.
(5) The Secretary’s decision to confirm, vary or set aside a
determination takes effect:
(a) on the day specified in the Secretary’s decision; or
(b) if a day is not specified—on the day on which the
Secretary’s decision was made.
(6) The Secretary must give written notice of the Secretary’s
decision to the person whose ordinary income has been determined.
(1) A person whose interests are affected by a determination made under
section 5 may request the Secretary to reconsider the determination.
Note : The Secretary can delegate functions related to
reconsidering determinations to the Secretary to the Department of
Veterans’ Affairs.
(2) However, this section does not apply to a determination under section
5 by:
(a) the Secretary to the Department of Social Security; or
(b) a person to whom the power to make such a determination is
sub-delegated under subsection 20(4).
(3) The person’s request must be made by written notice given to the
Secretary within 3 months after the day on which the person first received
notice of the determination.
(4) The notice must set out the reasons for making the request.
(5) After receiving the request, the Secretary must reconsider the
determination and:
(a) confirm the determination; or
(b) vary the determination; or
(c) set the determination aside and substitute a new
determination.
(6) The Secretary’s decision to confirm, vary or set aside a
determination takes effect:
(a) on the day specified in the Secretary’s decision; or
(b) if a day is not specified—on the day on which the
Secretary’s decision was made.
(7) The Secretary is taken, for the purposes of this Part, to have
confirmed the determination if the Secretary does not give notice of the
Secretary’s decision to the person within 90 days after receiving the
person’s request.
Note: Section 27A of the Administrative Appeals Tribunal
Act 1975 requires the person to be notified of the person’s review
rights.
(1) If a determination of a person’s ordinary income under section 5
of this Act is reviewed under section 1239 of the Social Security Act
1991, a decision on review to vary or set aside the determination takes
effect:
(a) on the day specified in the decision; or
(b) if a day is not specified—on the day on which the decision was
made.
(2) Subject to subsections (3) and (4), the day specified under paragraph
(1)(a) must not be earlier than the day on which the decision on review was
made.
(3) The day specified under paragraph (1)(a) may be earlier than the day
on which the decision on review was made if:
(a) the decision has the effect of increasing the amount determined as the
person’s ordinary income; and
(b) the amount determined under section 5 as the person’s ordinary
income was less than what it ought to have been because the person made a false
statement or misrepresentation.
(4) The day specified under paragraph (1)(a) may be earlier than the day
on which the decision on review was made if:
(a) the decision does not have the effect of increasing the amount
determined as the person’s ordinary income; and
(b) the day specified under paragraph (1)(a) is not more than 3 months
before the day on which the decision was made.
(5) In this section, a reference to setting a determination aside is a
reference to setting the determination aside and substituting a new
determination.
(1) Subject to subsections (2) and (3), if:
(a) an application under section 1240 of the Social Security Act
1991 has been made for review of a determination of a person’s
ordinary income under section 5 of this Act; and
(b) a decision is made under section 1243 of the Social Security Act
1991 to vary or set aside the determination;
the decision to vary or set aside the determination takes effect on the day
on which the determination was made.
(2) If the application for review of the determination under section 1240
of the Social Security Act 1991 was made more than 3 months after notice
of the determination was given under section 9 of this Act, the decision to vary
or set aside the determination takes effect on the day on which the application
for review was made.
(3) If the decision to vary or set aside the determination has the effect
of increasing the amount determined as the person’s ordinary income, the
decision takes effect:
(a) on the day specified in the decision; or
(b) if a day is not specified—on the day on which the decision was
made.
(4) The day specified under paragraph (3)(a) may be earlier than the day
on which the decision was made only if the amount determined under section 5 as
the person’s ordinary income was less than what it ought to have been
because the person made a false statement or misrepresentation.
(5) In this section, a reference to setting a determination aside is a
reference to setting the determination aside and substituting a new
determination.
An application may be made to the Administrative Appeals Tribunal for the
review of a determination that has been confirmed, varied or set aside under
section 10 or 11.
In this Part, protected information is information
that:
(a) was acquired under or for the purposes of this Act; and
(b) either:
(i) relates to the affairs of a person; or
(ii) is personal information.
(1) A person is guilty of an offence if:
(a) the person makes a record of, discloses or otherwise uses information;
and
(b) the information is protected information; and
(c) the information was acquired by the person in the course of exercising
powers or performing functions or duties under this Act.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) This section does not apply to conduct that is:
(a) carried out in the performance of a function or duty under this Act or
the exercise of a power under this Act; or
(b) otherwise authorised under this Act.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
If protected information is disclosed for the purposes of this
Act:
(a) to the Secretary under section 1314 of the Social Security Act
1991 or section 130 of the Veterans’ Entitlements Act 1986;
or
(b) to the Secretary to the Department of Social Security or the Secretary
to the Department of Veterans’ Affairs;
that Secretary must not make a record of, disclose or otherwise use the
information for any other purpose.
A person is guilty of an offence if:
(a) the person makes a record of, discloses or otherwise uses information;
and
(b) the information is protected information of a kind referred to in
section 17; and
(c) the record, disclosure or use of the information is not for the
purposes of this Act.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
A court, or any other body or person having power to require the
production of documents or the answering of questions, may require a person to
disclose protected information only if:
(a) the disclosure is required for the purposes of this Act; or
(b) the person to whom the information relates has consented, in writing,
to the disclosure.
(1) The Secretary may, by writing, delegate to an officer of the
Department all or any of the powers of the Secretary under this Act.
(2) In exercising his or her powers under subsection (1), the Secretary is
to have regard to the powers to be exercised by the delegate and the
responsibilities of the officer to whom the power is delegated.
(3) The Secretary may, by writing, delegate one or more of the
following:
(a) the Secretary’s powers relating to making a determination under
section 5 to the Secretary to the Department of Social Security or the Secretary
to the Department of Veterans’ Affairs or both;
(b) the Secretary’s powers relating to reconsidering a determination
under section 10 to the Secretary to the Department of Veterans’
Affairs;
(c) the Secretary’s powers relating to reconsidering a determination
under section 11 to the Secretary to the Department of Veterans’
Affairs.
(4) If the Secretary delegates a power mentioned in paragraph (3)(a) to
the Secretary to the Department of Social Security, the Secretary to the
Department of Social Security may, by writing, sub-delegate the power to an
officer of that Department.
(5) If the Secretary delegates a power mentioned in subsection (3) to the
Secretary to the Department of Veterans’ Affairs, the Secretary to the
Department of Veteran Affairs may, by writing, sub-delegate the power to an
officer of that Department.
(6) Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901
apply in relation to a sub-delegation in a corresponding way to the way in which
they apply to a delegation.
A person is guilty of an offence if:
(a) the person gives to the Secretary information requested by the
Secretary for the purpose of determining the person’s ordinary income
under section 5; and
(b) the information is false or misleading in a material
particular.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Chapter 2 of the Criminal Code applies to all offences against
this Act.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
1 After paragraph
1239(1)(d)
Insert:
or (e) a decision under section 5 of the Aged Care Income Testing Act
1997 by the Secretary, or by a person to whom the Secretary has
sub-delegated power under section 20 of that Act;
2 After paragraph
1240(1)(d)
Insert:
or (e) a decision under section 5 of the Aged Care Income Testing Act
1997 by the Secretary, or by a person to whom the Secretary has
sub-delegated power under section 20 of that Act;
3 At the end of subsection
1245(1)
Add:
; and (d) all decisions under section 5 of the Aged Care Income
Testing Act 1997 by the Secretary, or by a person to whom the Secretary has
sub-delegated power under section 20 of that Act.
4 Subsection 1282(1)
Repeal the subsection, substitute:
(1) Unless otherwise stated, the provisions of this Part apply
to:
(a) all decisions of an officer under this Act, the Farm Household
Support Act 1992 and subsection 91A(3) of the Child Support (Assessment)
Act 1989; and
(b) all decisions under section 5 of the Aged Care Income Testing Act
1997 by the Secretary, or by a person to whom the Secretary has
sub-delegated power under section 20 of that Act.