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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Aged Care Legislation Amendment (New
Commissioner Functions) Bill 2019
No. , 2019
(Health)
A Bill for an Act to amend legislation relating to
aged care, and for related purposes
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Approval of providers of aged care
3
Aged Care (Accommodation Payment Security) Act 2006
3
Aged Care (Accommodation Payment Security) Levy Act 2006
3
Aged Care Act 1997
3
Aged Care Quality and Safety Commission Act 2018
10
Aged Care (Transitional Provisions) Act 1997
25
A New Tax System (Goods and Services Tax) Act 1999
26
Healthcare Identifiers Act 2010
26
Social Security Act 1991
26
Veterans' Entitlements Act 1986
26
Schedule 2--Responsibilities of approved providers etc.
28
Aged Care Act 1997
28
Aged Care Quality and Safety Commission Act 2018
47
Aged Care (Transitional Provisions) Act 1997
76
Social Security Act 1991
77
Veterans' Entitlements Act 1986
77
Schedule 3--Reconsideration and review of decisions
78
Aged Care Act 1997
78
Aged Care Quality and Safety Commission Act 2018
78
Schedule 4--Transitional, application, saving and other
provisions
83
Part 1--Introduction
83
Part 2--Approval of providers of aged care
85
Part 3--Responsibilities of approved providers etc.
89
Division 1--Transitional etc. provisions relating to the imposition of
sanctions on approved providers
89
ii
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Division 2--Application provisions relating to Part 6.4 of the Aged
Care Act
93
Division 3--Application etc. provisions relating to Parts 8 and 8A of
the Commission Act
95
Division 4--Other matters
96
Part 4--Reconsideration and review of decisions
97
Part 5--Provisions relating to transferred functions
99
Part 6--Rules
100
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
1
A Bill for an Act to amend legislation relating to
1
aged care, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Aged Care Legislation Amendment (New
5
Commissioner Functions) Act 2019
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1 to
4
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
3
Schedule 1--Approval of providers of aged
1
care
2
3
Aged Care (Accommodation Payment Security) Act 2006
4
1 Subsection 6(1) (definition of
approved provider
)
5
Repeal the definition, substitute:
6
approved provider
has the same meaning as in the
Aged Care
7
Quality and Safety Commission Act 2018
.
8
Aged Care (Accommodation Payment Security) Levy Act
9
2006
10
2 Section 5 (definition of
approved provider
)
11
Repeal the definition, substitute:
12
approved provider
has the same meaning as in the
Aged Care
13
Quality and Safety Commission Act 2018
.
14
Aged Care Act 1997
15
3 Section 3-2
16
Omit "a provider", substitute "an approved provider".
17
4 Paragraph 3-2(a)
18
Repeal the paragraph.
19
5 At the end of section 3-2
20
Add:
21
Note:
For the approval of providers of aged care, see Part 7A of the
*
Quality
22
and Safety Commission Act.
23
Schedule 1
Approval of providers of aged care
4
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
6 Section 3-4
1
Omit all the words from and including "sanctions" to the end of the
2
section, substitute "sanctions on an approved provider under Part 7B of
3
the
*
Quality and Safety Commission Act, which may affect amounts of
4
*
subsidy payable to the approved provider.".
5
7 Section 5-1
6
Omit "for the provision of care", substitute "to an approved provider of
7
*
aged care".
8
8 Section 5-1
9
Omit:
10
•
the provider of the service--the provider must be an approved
11
provider (see Part 2.1);
12
9 Section 5-1 (note)
13
Omit "Note", substitute "Note 1".
14
10 At the end of section 5-1
15
Add:
16
Note 2:
For the approval of providers of aged care, see Part 7A of the
*
Quality
17
and Safety Commission Act.
18
11 Section 5-2 (table item 1)
19
Repeal the item.
20
12 At the end of section 5-2
21
Add:
22
Note 3:
For the approval of providers of aged care, see Part 7A of the
*
Quality
23
and Safety Commission Act.
24
13 Part 2.1 (heading)
25
Repeal the heading, substitute:
26
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
5
Part 2.1--Approved providers
1
14 Sections 6-1 and 6-2
2
Repeal the sections, substitute:
3
6-1 What this Part is about
4
A precondition to a provider of
*
aged care receiving a
*
subsidy
5
under this Act for the provision of care is that the provider is an
6
approved provider.
7
For the obligations that arise from being an approved provider, see
8
Division 9 of this Part.
9
Division 10A of this Part sets out offences relating to disqualified
10
individuals and when remedial orders may be obtained.
11
15 Paragraph 7-1(a)
12
Repeal the paragraph, substitute:
13
(a) the person is an approved provider; and
14
(aa) the approval of the person is in effect; and
15
16 Paragraphs 7-1(b) and (c)
16
Omit "is in force", substitute "of the person is".
17
17 At end of section 7-1
18
Add:
19
Note:
For the approval of providers of aged care, see Part 7A of the
*
Quality
20
and Safety Commission Act.
21
18 Division 8
22
Repeal the Division.
23
19 Subsection 9-1(1)
24
Omit "Secretary", substitute "
*
Quality and Safety Commissioner".
25
Schedule 1
Approval of providers of aged care
6
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
20 Subsection 9-1(1)
1
Omit "(see section 8-3)".
2
21 Subsection 9-1(2)
3
Omit "Secretary", substitute "
*
Quality and Safety Commissioner".
4
22 After subsection 9-1(3A)
5
Insert:
6
(3B) The Approved Provider Principles may specify changes of
7
circumstances that are taken, for the purposes of subsection (1), to
8
materially affect an approved provider's suitability to be a provider
9
of
*
aged care.
10
23 Subsection 9-1(4)
11
Omit "Secretary", substitute "
*
Quality and Safety Commissioner".
12
24 Subsection 9-2(1)
13
Omit "The Secretary", substitute "The
*
Quality and Safety
14
Commissioner".
15
25 Subsection 9-2(1)
16
Omit "the Secretary", substitute "the Commissioner".
17
26 Subsection 9-2(1)
18
Omit "(see section 8-3)".
19
27 Subsection 9-3A(1)
20
After "The Secretary", insert "or
*
Quality and Safety Commissioner".
21
28 Subsection 9-3A(1)
22
After "the Secretary", insert "or Commissioner".
23
29 Paragraph 9-3A(3)(a)
24
After "Secretary", insert "or
*
Quality and Safety Commissioner".
25
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
7
30 Subsection 9-3B(1)
1
After "Secretary", insert "or
*
Quality and Safety Commissioner".
2
31 Subsection 9-3B(2)
3
After "The Secretary", insert "or
*
Quality and Safety Commissioner".
4
32 Subsection 9-3B(2)
5
After "the Secretary", insert "or Commissioner".
6
33 Paragraph 9-3B(2)(a)
7
Omit "(see section 8-3)".
8
34 Subsections 9-3B(3) and (5)
9
After "Secretary", insert "or
*
Quality and Safety Commissioner".
10
35 Section 9-4
11
Omit "a person's approval under section 8-1 is suspended for a period
12
under Part 4.4", substitute "a person's approval as a provider of
*
aged
13
care under Part 7A of the
*
Quality and Safety Commission Act is
14
suspended for a period under Part 7B of that Act".
15
36 Division 10
16
Repeal the Division.
17
37 Section 10A-1
18
Repeal the section.
19
38 Subsection 10A-3(7)
20
Repeal the subsection.
21
39 Subsection 14-1(2)
22
Repeal the subsection, substitute:
23
(2) The
*
places may only be allocated to a person if:
24
(a) the person is an approved provider and the person's approval
25
is in respect of the
*
aged care in respect of which the places
26
are allocated; or
27
Schedule 1
Approval of providers of aged care
8
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(b) both of the following apply:
1
(i) the person will be an approved provider at the time the
2
allocation takes effect or, in the case of a provisional
3
allocation, at the time that allocation begins to be in
4
force;
5
(ii) the person's approval will be in respect of the aged care
6
in respect of which the places are allocated.
7
40 Paragraph 16-2(4)(a)
8
Omit "has been approved under section 8-1 as a provider of
*
aged care",
9
substitute "is an approved provider".
10
41 Paragraph 16-2(4)(b)
11
Omit "has not been approved under section 8-1 as a provider of aged
12
care", substitute "is not an approved provider".
13
42 Paragraph 16-13(4)(a)
14
Omit "has been approved under section 8-1 as a provider of
*
aged care",
15
substitute "is an approved provider".
16
43 Paragraph 16-13(4)(b)
17
Omit "has not been approved under section 8-1 as a provider of aged
18
care", substitute "is not an approved provider".
19
44 Paragraph 33-3(1)(c)
20
Repeal the paragraph, substitute:
21
(c) the approval of the approved provider of the service ceases to
22
have effect under section 63G of the
*
Quality and Safety
23
Commission Act.
24
45 Paragraph 46-1(1)(a)
25
Repeal the paragraph, substitute:
26
(a) the approval of the approved provider is in respect of home
27
care; and
28
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
9
46 Subsection 63-1C(1)
1
Omit "by the Secretary in a notice given under subsection 8-5(3) is to
2
comply with subsection (2)", substitute "in a notice given to the
3
provider under subsection 63E(1) of the
*
Quality and Safety
4
Commission Act is to comply with subsection (2) of this section".
5
47 Subsection 63-1C(2)
6
Omit "under subsection 8-5(3)".
7
48 Paragraph 72-1(4)(a)
8
Repeal the paragraph, substitute:
9
(a) whose approval is in respect of
*
residential care; and
10
49 Subparagraph 86-1(b)(iii)
11
Repeal the subparagraph.
12
50 Clause 1 of Schedule 1 (definition of
approved provider
)
13
Repeal the definition, substitute:
14
approved provider
has the same meaning as in the
*
Quality and
15
Safety Commission Act.
16
51 Clause 1 of Schedule 1 (definition of
authority of a State or
17
Territory
)
18
Repeal the definition.
19
52 Clause 1 of Schedule 1 (definition of
disqualified
20
individual
)
21
Repeal the definition, substitute:
22
disqualified individual
has the same meaning as in the
*
Quality
23
and Safety Commission Act.
24
53 Clause 1 of Schedule 1 (definition of
key personnel
)
25
Repeal the definition, substitute:
26
key personnel
of a person or body has the same meaning as in the
27
*
Quality and Safety Commission Act.
28
Schedule 1
Approval of providers of aged care
10
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
54 Clause 1 of Schedule 1 (definition of
local government
1
authority
)
2
Repeal the definition.
3
Aged Care Quality and Safety Commission Act 2018
4
55 Subsection 5(1)
5
Omit "(1)".
6
56 Subsection 5(2)
7
Repeal the subsection.
8
57 Section 6 (after paragraph (a))
9
Insert:
10
(aa)
the function of approving providers of aged care; and
11
58 Section 7 (definition of
approved provider
)
12
Repeal the definition, substitute:
13
approved provider
: a person or body is an
approved provider
if:
14
(a) the person or body:
15
(i) has been approved as a provider of aged care under
16
section 63D; or
17
(ii) is taken, under paragraph 63F(2)(a), to be an approved
18
provider; and
19
(b) the approval of the person or body is in effect.
20
Note:
The approval of the person or body ceases to have effect if it is
21
suspended or revoked under Division 4 of Part 7A or Part 7B.
22
59 Section 7
23
Insert:
24
corporation
means a trading or financial corporation within the
25
meaning of paragraph 51(xx) of the Constitution.
26
disqualified individual
has the meaning given by section 8A.
27
Federal Court
means the Federal Court of Australia.
28
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
11
flexible care
has the same meaning as in the Aged Care Act.
1
flexible care service
has the same meaning as in the Aged Care
2
Act.
3
home care
has the same meaning as in the Aged Care Act.
4
indictable offence
means:
5
(a) an indictable offence against a law of the Commonwealth or
6
of a State or Territory; or
7
(b) an offence that:
8
(i) is an offence against a law of a foreign country or of a
9
part of a foreign country; and
10
(ii) when committed, corresponds to an indictable offence
11
against a law of the Commonwealth or of a State or
12
Territory.
13
key personnel
of a person or body has the meaning given by
14
section 8B.
15
local government authority
means a body established for the
16
purposes of local government by or under a law of a State or
17
Territory.
18
provisional allocation
has the same meaning as in the Aged Care
19
Act.
20
residential care
has the same meaning as in the Aged Care Act.
21
State or Territory authority
means a body established for a public
22
purpose by or under a law of a State or Territory.
23
60 After section 8
24
Insert:
25
8A Meaning of
disqualified individual
26
(1) An individual is a
disqualified individual
if:
27
(a) the individual has been convicted of an indictable offence,
28
whether before, on or after the commencement of this
29
section; or
30
(b) the individual is an insolvent under administration; or
31
Schedule 1
Approval of providers of aged care
12
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(c) both of the following apply:
1
(i) the individual is one of the key personnel of a person or
2
body;
3
(ii) a registered medical practitioner certifies that the
4
individual is unable to perform the individual's duties as
5
one of those key personnel because of mental
6
incapacity.
7
(2) This section does not affect the operation of Part VIIC of the
8
Crimes Act 1914
(which includes provisions that, in certain
9
circumstances, relieve persons from the requirement to disclose
10
spent convictions and require persons aware of such convictions to
11
disregard them).
12
8B Meaning of
key personnel
of a person or body
13
(1) Each of the following is one of the key personnel of a person or
14
body (the
entity
) at a particular time:
15
(a) if the entity is not a State or Territory--a member of the
16
group of persons who is responsible for the executive
17
decisions of the entity at that time;
18
(b) if the entity is not a State or Territory--any other person who
19
has authority or responsibility for, or significant influence
20
over, planning, directing or controlling the activities of the
21
entity at that time;
22
(c) if, at that time, the entity conducts an aged care service:
23
(i) any person who is responsible for the nursing services
24
provided by the service and who holds a recognised
25
qualification in nursing; and
26
(ii) any person who is responsible for the day-to-day
27
operations of the service;
28
whether or not the person is employed by the entity;
29
(d) if, at that time, the entity proposes to conduct an aged care
30
service:
31
(i) any person who is likely to be responsible for the
32
nursing services to be provided by the service and who
33
holds a recognised qualification in nursing; and
34
(ii) any person who is likely to be responsible for the
35
day-to-day operations of the service;
36
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
13
whether or not the person is employed by the entity.
1
(2) Without limiting paragraph (1)(a), a reference in that paragraph to
2
a member of the group of persons who is responsible for the
3
executive decisions of an entity includes:
4
(a) if the entity is a body corporate that is incorporated, or taken
5
to be incorporated, under the
Corporations Act 2001
--a
6
director of the body corporate for the purposes of that Act;
7
and
8
(b) in any other case--a member of the entity's governing body.
9
61 Section 14 (after paragraph (a))
10
Insert:
11
(aa)
approving providers of aged care; and
12
62 After paragraph 16(1)(a)
13
Insert:
14
(aa) the functions conferred on the Commissioner by Part 7A
15
(which deals with the approval of providers of aged care
16
etc.);
17
63 At the end of subsection 60(2)
18
Add:
19
; or (c) relates to the affairs of an applicant for approval under
20
section 63B.
21
64 After Part 7
22
Insert:
23
Part 7A--Approval of providers of aged care etc.
24
Division 1--Introduction
25
63A Simplified outline of this Part
26
Division 2 of this Part deals with approving providers of aged care.
27
For when a State or Territory, a State or Territory authority or a
28
Schedule 1
Approval of providers of aged care
14
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
local government authority is taken to be an approved provider of
1
aged care, see Division 3 of this Part.
2
Division 4 of this Part deals with the cessation and revocation of an
3
approval to be a provider of aged care. An approval may be
4
revoked by the Commissioner under Division 4 of this Part or
5
Part 7B. An approval ceases to have effect when the approval is
6
revoked or, if the approval of the provider is suspended for a
7
particular period under Part 7B, during the period of the
8
suspension.
9
Division 2--Approval of providers of aged care
10
63B Application for approval as provider of aged care
11
(1) A person may apply to the Commissioner to be approved as a
12
provider of aged care.
13
(2) The application must:
14
(a) be made in writing; and
15
(b) be in a form approved by the Commissioner; and
16
(c) be accompanied by any documents or information specified
17
by the Commissioner; and
18
(d) be accompanied by any fee specified by the Commissioner.
19
(3) The person may, in writing, withdraw the application at any time
20
before the Commissioner makes a decision on the application.
21
63C Request for further information
22
(1) If:
23
(a) a person makes an application under subsection 63B(1); and
24
(b) the Commissioner needs further information to make a
25
decision on the application;
26
the Commissioner may, by written notice, request the person to
27
give further information to the Commissioner within a specified
28
period.
29
(2) The specified period must not be shorter than 28 days after the
30
notice is given.
31
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
15
(3) However, the specified period may be shorter than 28 days after
1
the notice is given if the circumstances specified in the rules apply
2
in relation to the application.
3
(4) The Commissioner may, at the person's request, extend the
4
specified period.
5
(5) If the person does not give the requested further information
6
within:
7
(a) if the specified period has been extended under
8
subsection (4)--the period as so extended; or
9
(b) otherwise--the specified period;
10
the application is taken to be withdrawn at the end of the period.
11
Note:
If the application is taken to be withdrawn under this subsection, the
12
person may make another application under section 63B.
13
(6) A notice given under subsection (1) must set out the effect of
14
subsection (5).
15
63D Commissioner must decide whether to approve person as
16
provider of aged care
17
(1) If a person makes an application under subsection 63B(1), the
18
Commissioner must decide whether to approve the person as a
19
provider of aged care within:
20
(a) if a request for further information in relation to the
21
application has been made under subsection 63C(1)--90 days
22
after receiving the further information; or
23
(b) otherwise--within 90 days after receiving the application.
24
Note:
See Part 8B for the reconsideration of a decision not to approve a
25
person as a provider of aged care.
26
Approval as provider of aged care
27
(2) The Commissioner must not approve the person as a provider of
28
aged care unless the Commissioner is satisfied that:
29
(a) the person is a corporation; and
30
(b) the person is suitable to provide aged care; and
31
(c) none of the key personnel of the person is a disqualified
32
individual.
33
Schedule 1
Approval of providers of aged care
16
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Suitability to provide aged care
1
(3) In deciding whether the person is suitable to provide aged care, the
2
Commissioner must consider the following matters:
3
(a) the person's experience in providing, at any time, aged care
4
or other relevant forms of care;
5
(b) the person's demonstrated understanding of the person's
6
responsibilities as a provider of the type of aged care for
7
which approval is sought;
8
(c) the systems that the person has, or proposes to have, in place
9
to meet the person's responsibilities as a provider of the type
10
of aged care for which approval is sought;
11
(d) the person's record of financial management and the methods
12
that the person uses, or proposes to use, in order to ensure
13
sound financial management;
14
(e) if, at any time, the person has been a provider of aged care or
15
other relevant forms of care--the person's conduct as such a
16
provider and the person's compliance with:
17
(i) the person's responsibilities as a provider of that care;
18
and
19
(ii) the person's obligations arising from the receipt of any
20
payments from the Commonwealth for providing that
21
care;
22
(f) any other matters specified in the rules.
23
(4) In considering a matter referred to in paragraph (3)(a), (b), (d), (e)
24
or (f), the Commissioner may also consider the matter in relation to
25
any or all of the key personnel of the person.
26
(5) The rules may specify the matters to which the Commissioner must
27
have regard in considering any of the matters set out in
28
paragraphs (3)(a) to (f).
29
(6) Subsection (3) does not limit the matters the Commissioner may
30
consider in deciding whether the person is suitable to provide aged
31
care.
32
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
17
63E Notification of decision relating to approval of person as
1
provider of aged care
2
Decision to approve person as a provider of aged care
3
(1) If the Commissioner decides to approve the person as a provider of
4
aged care under section 63D, the Commissioner must, within 14
5
days after making the decision, give written notice of the following
6
to the person:
7
(a) the decision;
8
(b) the day the approval comes into effect;
9
(c) whether the approval is given in respect of all types of aged
10
care or only in respect of a certain type or types of aged care;
11
(d) if the approval is in respect of residential care or flexible
12
care--that the approval is in respect of each residential care
13
service or flexible care service in respect of which:
14
(i) an allocation of a place to the person in respect of the
15
service is in effect under Part 2.2 of the Aged Care Act
16
(including a place transferred to the person under that
17
Part); or
18
(ii) a provisional allocation of a place to the person in
19
respect of the service is in force under that Part
20
(including a place transferred to the person under that
21
Part);
22
(e) if the approval is in respect of home care--that the approval
23
is in respect of each home care service in relation to which
24
the person notifies the Secretary of the information required
25
by section 9-1A of the Aged Care Act;
26
(f) if the Commissioner is satisfied that there are one or more
27
circumstances that materially affect the person's suitability to
28
provide aged care--those circumstances and the steps the
29
person must take to notify the Commissioner and obtain the
30
Commissioner's agreement before there is any change to
31
those circumstances.
32
(2) The notice must also set out the following matters:
33
(a) the obligations of approved providers under Division 9 of the
34
Aged Care Act to notify of, or give, certain information;
35
Schedule 1
Approval of providers of aged care
18
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(b) the circumstances in which the approval may be suspended or
1
revoked under Division 4 of this Part, or Part 7B, of this Act;
2
(c) the circumstances in which the approval may be restricted
3
under Part 7B of this Act and the effect of section 7-2 of the
4
Aged Care Act.
5
Note:
Under Part 7B of this Act, the Commissioner may restrict a person's
6
approval as a provider of aged care to certain aged care services or to
7
certain care recipients.
8
Decision not to approve person as provider of aged care
9
(3) If the Commissioner decides not to approve the person as a
10
provider of aged care under section 63D, the Commissioner must,
11
within 14 days after making the decision, give written notice of the
12
following to the person:
13
(a) the decision;
14
(b) the reasons for the decision;
15
(c) how the person may apply for the reconsideration of the
16
decision.
17
Secretary must be given copy of notice
18
(4) The Commissioner must, as soon as is practicable, give the
19
Secretary a copy of a notice given under subsection (1) or (3).
20
Division 3--Deemed approval of States, Territories and
21
local government etc.
22
63F States, Territories and local government etc. taken to be
23
approved providers etc.
24
(1) Subject to subsection (3), a person or body of the following kind
25
(the
entity
) may give the Commissioner a written notice requesting
26
that this section applies in relation to the entity:
27
(a) a State or Territory;
28
(b) a State or Territory authority;
29
(c) a local government authority.
30
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
19
(2) If the entity gives the Commissioner a notice under subsection (1),
1
each of the following apply for the purposes of this Act, the rules,
2
the Aged Care Act and the Aged Care Principles:
3
(a) the entity is taken to be an approved provider;
4
(b) the approval of the entity is taken to come into effect on the
5
first day after the day the notice is received by the
6
Commissioner;
7
(c) the approval of the entity is taken to be in respect of:
8
(i) all types of aged care; and
9
(ii) all types of aged care services that are provided, or will
10
be provided, by the entity.
11
Note:
As the entity is an approved provider, the entity's approval may be
12
suspended or revoked under Division 4 of this Part, or Part 7B, of this
13
Act.
14
(3) If:
15
(a) an entity is taken to be an approved provider under
16
paragraph (2)(a); and
17
(b) the approval of the entity is revoked under Division 4 of this
18
Part or Part 7B;
19
then:
20
(c) the entity is not permitted to give the Commissioner another
21
notice under subsection (1); and
22
(d) if the entity subsequently applies under section 63B for
23
approval as a provider of aged care--the entity is taken, for
24
the purposes of the application, to be a corporation.
25
Division 4--Cessation and revocation of approval
26
63G When approval as provider of aged care ceases to have effect
27
Suspension of approval
28
(1) If the approval of an approved provider is suspended for a
29
particular period under Part 7B, the approval does not have effect
30
during the period.
31
Schedule 1
Approval of providers of aged care
20
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Revocation of approval
1
(2) The approval of an approved provider ceases to have effect if the
2
approval is revoked under this Division or Part 7B.
3
63H Revocation of approval on request of approved provider
4
Request for revocation
5
(1) An approved provider may request the Commissioner to revoke the
6
approval of the provider.
7
(2) The request must:
8
(a) be made in writing; and
9
(b) be in a form approved by the Commissioner; and
10
(c) be accompanied by any documents or information specified
11
by the Commissioner; and
12
(d) be accompanied by any fee specified by the Commissioner;
13
and
14
(e) specify the day (the
revocation day
) on which the revocation
15
is to take effect; and
16
(f) be made at least 60 days, or such other number of days as
17
specified in the rules, before the revocation day.
18
Revocation of approval
19
(3) If an approved provider makes a request under subsection (1), the
20
Commissioner must, within 28 days after the request is made,
21
revoke the approval of the provider if the Commissioner is satisfied
22
that:
23
(a) if the provider provides a residential care service or flexible
24
care service--the allocation of places to the provider in
25
respect of the service either:
26
(i) has ceased to have effect under paragraph 18-1(1)(a) or
27
(b) of the Aged Care Act; or
28
(ii) will cease to have effect under that paragraph before the
29
revocation day; and
30
(b) if the provider provides a home care service--appropriate
31
arrangements have been made to ensure that the care
32
recipients (if any) to whom the provider will no longer be
33
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
21
approved to provide home care after the revocation day will
1
continue to be provided with care after that day.
2
Notification of revocation decision
3
(4) If the Commissioner decides to revoke the approval of the
4
approved provider under subsection (3), the Commissioner must
5
give the provider written notice of the decision and the revocation
6
day.
7
(5) The notice under subsection (4) must be given at least 14 days
8
before the revocation day.
9
(6) If the Commissioner decides not to revoke the approval of the
10
approved provider under subsection (3), the Commissioner must,
11
within 14 days after making the decision, give written notice of the
12
following to the provider:
13
(a) the decision;
14
(b) the reasons for the decision;
15
(c) how the provider may apply for reconsideration of the
16
decision.
17
(7) The Commissioner must, as soon as is practicable, give the
18
Secretary a copy of a notice given under subsection (4) or (6).
19
63J Revocation of approval of approved provider if Commissioner is
20
satisfied of certain matters
21
Revocation of actual approval
22
(1) If an approved provider was approved under section 63D, the
23
Commissioner must revoke the approval of the provider if the
24
Commissioner is satisfied that:
25
(a) in a case in which the provider was, or was taken to be, a
26
corporation at the time of the approval--the provider has
27
ceased to be a corporation; or
28
(b) the provider has ceased to be suitable to provide aged care; or
29
(c) the provider's application for approval contained information
30
that was false or misleading in a material particular.
31
Note:
The approved provider may request the Commissioner to reconsider
32
the decision under Part 8B.
33
Schedule 1
Approval of providers of aged care
22
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Revocation of deemed approval
1
(2) If a person or body is taken, under section 63F, to be an approved
2
provider, the Commissioner must revoke the approval of the person
3
or body if the Commissioner is satisfied that the person or body is
4
not suitable to provide aged care.
5
Note:
The person or body may request the Commissioner to reconsider the
6
decision under Part 8B.
7
Suitability to provide aged care
8
(3) In deciding whether a person or body (the
entity
) has ceased to be,
9
or is not, suitable to provide aged care, the Commissioner must
10
consider the following matters:
11
(a) the entity's experience in providing, at any time, aged care or
12
other relevant forms of care;
13
(b) the entity's demonstrated understanding of the entity's
14
responsibilities as a provider of the type of aged care to
15
which the entity's approval relates;
16
(c) the systems that the entity has in place to meet the entity's
17
responsibilities as a provider of the type of aged care to
18
which the entity's approval relates;
19
(d) the entity's record of financial management and the methods
20
that the entity uses in order to ensure sound financial
21
management;
22
(e) if, at any time, the entity has been a provider of aged care or
23
other relevant forms of care--the entity's conduct as such a
24
provider and the entity's compliance with:
25
(i) the entity's responsibilities as a provider of that care;
26
and
27
(ii) the entity's obligations arising from the receipt of any
28
payments from the Commonwealth for providing that
29
care;
30
(f) any other matters specified in the rules.
31
(4) In considering a matter referred to in paragraph (3)(a), (b), (d), (e)
32
or (f), the Commissioner may also consider the matter in relation to
33
any or all of the key personnel of the entity.
34
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
23
(5) The rules may specify the matters to which the Commissioner must
1
have regard in considering any of the matters referred to in
2
subsection (3).
3
(6) Subsection (3) does not limit the matters the Commissioner may
4
consider in deciding whether the entity is suitable to provide aged
5
care.
6
63K Notice of intention to revoke approval as provider of aged care
7
(1) Before the Commissioner decides to revoke the approval of an
8
approved provider under section 63J, the Commissioner must, by
9
written notice, notify the provider that the revocation is being
10
considered.
11
(2) The notice must:
12
(a) set out the Commissioner's reasons for considering the
13
revocation; and
14
(b) invite the approved provider to make submissions, in writing,
15
to the Commissioner about the matter within 28 days after
16
receiving the notice; and
17
(c) inform the provider that if no submissions are made within
18
that period, any revocation may take effect as early as 7 days
19
after the end of that period.
20
(3) In deciding whether to revoke the approval of an approved
21
provider under section 63J, the Commissioner must consider any
22
submissions made by the provider to the Commissioner within the
23
period referred to in paragraph (2)(b) of this section.
24
(4) The Commissioner must decide whether to revoke the approval of
25
an approved provider under section 63J within 28 days after the
26
end of the period referred to in paragraph (2)(b) of this section.
27
63L Notice of revocation of approval as provider of aged care etc.
28
(1) If the Commissioner decides, under section 63J, to revoke the
29
approval of a person or body (the
entity
) as an approved provider,
30
the Commissioner must, within 14 days after making the decision,
31
give written notice of the following to the entity:
32
(a) the decision;
33
Schedule 1
Approval of providers of aged care
24
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(b) the reasons for the decision;
1
(c) how the entity may apply for reconsideration of the decision.
2
Notice of revocation day
3
(2) Subject to subsection (4), the Commissioner must also give the
4
entity a written notice that specifies the day (the
revocation day
)
5
on which the revocation of the entity's approval takes effect.
6
Note:
A notice under this subsection may be given to the entity whether or
7
not a notice has been given to the entity under subsection (5).
8
(3) The notice under subsection (2):
9
(a) must be given at least 7 days before the revocation day; and
10
(b) may be given at the same time the notice under subsection (1)
11
is given to the entity or at a later time.
12
(4) The Commissioner must not give a notice under subsection (2) to
13
the entity unless the Commissioner is satisfied that appropriate
14
arrangements have been made to ensure that the care recipients to
15
whom the entity will no longer be approved to provide aged care
16
after the revocation day will continue to be provided with care after
17
that day.
18
Notice of limitation on approval prior to revocation day
19
(5) Subject to subsection (8), the Commissioner may also give the
20
entity a written notice that specifies:
21
(a) that the entity's approval is limited, or further limited, to any
22
one or more of the following:
23
(i) one or more specified types of aged care;
24
(ii) one or more specified aged care services;
25
(iii) one or more specified classes of care recipient; and
26
(b) the day (the
approval limitation day
) on which the limitation
27
takes effect.
28
(6) A notice under subsection (5):
29
(a) must specify a day as the approval limitation day that is at
30
least 7 days after the notice is given; and
31
(b) may be given at the same time the notice under subsection (1)
32
is given to the entity or at a later time.
33
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
25
(7) The Commissioner may give the entity more than one notice under
1
subsection (5).
2
(8) The Commissioner must not give the entity a notice under
3
subsection (5) unless the Commissioner is satisfied that appropriate
4
arrangements have been made to ensure that the care recipients to
5
whom the entity will no longer be approved to provide aged care
6
after the approval limitation day specified in the notice will
7
continue to be provided with care after that day.
8
Aged Care (Transitional Provisions) Act 1997
9
65 Section 3-2
10
Omit "a provider", substitute "an approved provider".
11
66 Paragraph 3-2(a)
12
Repeal the paragraph.
13
67 At the end of section 3-2
14
Add:
15
Note:
For the approval of providers of aged care, see Part 7A of the
*
Quality
16
and Safety Commission Act.
17
68 Section 3-4
18
Omit all the words from and including "sanctions" to the end of the
19
section, substitute "sanctions on an approved provider under Part 7B of
20
the
*
Quality and Safety Commission Act, which may affect amounts of
21
subsidy payable to the provider.".
22
69 Paragraph 46-1(1)(a)
23
Repeal the paragraph, substitute:
24
(a) the approval of the approved provider is in respect of home
25
care; and
26
70 Clause 1 of Schedule 1 (definition of
approved provider
)
27
Repeal the definition, substitute:
28
approved provider
has the same meaning as in the
*
Quality and
29
Safety Commission Act.
30
Schedule 1
Approval of providers of aged care
26
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
71 Clause 1 of Schedule 1
1
Insert:
2
Quality and Safety Commission Act
means the
Aged Care Quality
3
and Safety Commission Act 2018
.
4
A New Tax System (Goods and Services Tax) Act 1999
5
72 Section 195-1 (paragraph (d) of the definition of
retirement
6
village
)
7
Omit "that Act", substitute "the
Aged Care Quality and Safety
8
Commission Act 2018
".
9
Healthcare Identifiers Act 2010
10
73 Section 5 (paragraph (a) of the definition of
aged care
11
purpose
)
12
Omit "
Aged Care Act 1997
", substitute "
Aged Care Quality and Safety
13
Commission Act 2018
".
14
Social Security Act 1991
15
74 At the end of subsection 23(4CA)
16
Add "(within the meaning of the
Aged Care Quality and Safety
17
Commission Act 2018
)".
18
75 Subsection 23(4CB)
19
Repeal the subsection, substitute:
20
(4CB) An expression used in subsection (4CA) and in the
Aged Care Act
21
1997
has the same meaning in that subsection as in that Act.
22
Veterans' Entitlements Act 1986
23
76 Paragraph 5H(8)(na)
24
Omit "those Acts", substitute "the
Aged Care Quality and Safety
25
Commission Act 2018
".
26
Approval of providers of aged care
Schedule 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
27
77 Subsection 5N(1) (definition of
residential care charge
)
1
Repeal the definition, substitute:
2
residential care charge
means an amount paid by, or on behalf of,
3
a person to an approved provider (within the meaning of the
Aged
4
Care Quality and Safety Commission Act 2018
) for the provision of
5
care to the person, but does not include an accommodation bond
6
(within the meaning of the
Aged Care Act 1997
).
7
78 Subparagraph 5NC(5)(a)(i)
8
After "provider", insert "(within the meaning of the
Aged Care Quality
9
and Safety Commission Act 2018
)".
10
79 Subsection 5NC(9)
11
Repeal the subsection, substitute:
12
(9) An expression used in subsection (5) and in the
Aged Care Act
13
1997
has the same meaning in that subsection as in that Act.
14
Schedule 2
Responsibilities of approved providers etc.
28
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Schedule 2--Responsibilities of approved
1
providers etc.
2
3
Aged Care Act 1997
4
1 Section 7-2
5
Repeal the section, substitute:
6
7-2 Payment of subsidy if approval of provider is restricted to
7
certain aged care services etc.
8
(1) If:
9
(a) a sanction has been imposed on an approved provider under
10
section 63N of the
*
Quality and Safety Commission Act; and
11
(b) the sanction restricts the approval of the provider to certain
12
*
aged care services conducted by the provider;
13
then, while the sanction is in effect,
*
subsidy may only be paid to
14
the provider in respect of care provided through those services.
15
(2) If:
16
(a) a sanction has been imposed on an approved provider under
17
section 63N of the
*
Quality and Safety Commission Act; and
18
(b) the sanction restricts the payment of
*
subsidies to the
19
provision of care by the provider to certain care recipients;
20
then, while the sanction is in effect, subsidy may only be paid to
21
the provider in respect of care provided to those care recipients.
22
Note:
Both subsections (1) and (2) may apply at the same time in relation to
23
an approved provider.
24
2 Subsections 9-1A(1), 9-1(1), 9-2(2), 9-3(2), 9-3A(2) and
25
9-3B(4) (note)
26
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
27
Commission Act".
28
3 Subsection 14-1(2A)
29
Repeal the subsection, substitute:
30
Responsibilities of approved providers etc.
Schedule 2
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
29
(2A) The
*
places must not be allocated to a person if:
1
(a) a sanction has been imposed on the person under section 63N
2
of the
*
Quality and Safety Commission Act; and
3
(b) the sanction prohibits the further allocation of places under
4
this Part to the person; and
5
(c) the sanction is in effect.
6
4 Subsection 14-4(2)
7
Omit "under Part 4.4", substitute "by a notice given under section 63N
8
of the
*
Quality and Safety Commission Act".
9
5 Subsections 14-5(1), 14-6(3) and 16-11(2) (note)
10
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
11
Commission Act".
12
6 Paragraph 18-1(1)(b)
13
Omit "Part 4.4", substitute "by a notice given under section 63N of the
14
*
Quality and Safety Commission Act".
15
7 Subsection 18-1(3)
16
Repeal the subsection, substitute:
17
(3) If:
18
(a) a sanction has been imposed on a person under section 63N
19
of the
*
Quality and Safety Commission Act; and
20
(b) the sanction suspends the allocation of a
*
place that has taken
21
effect under Division 15 of this Act;
22
then the allocation does not have effect while the suspension is in
23
effect.
24
8 Subsections 18-2(4) and 18-4(1) (note)
25
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
26
Commission Act".
27
9 Paragraphs 25-4(1)(a) and (b)
28
Repeal the paragraphs (not including the notes), substitute:
29
Schedule 2
Responsibilities of approved providers etc.
30
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(a) the Secretary is satisfied that the approved provider, or a
1
person acting on the approved provider's behalf, has not
2
conducted an appraisal or reappraisal in a proper manner; or
3
(b) both of the following apply:
4
(i) the Secretary is satisfied that the approved provider, or a
5
person acting on the approved provider's behalf, gave
6
false, misleading or inaccurate information in an
7
appraisal or reappraisal connected with a classification
8
reviewed under subsection 29-1(3);
9
(ii) the classification was changed under section 29-1.
10
10 Subsection 32-8(6) (note)
11
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
12
Commission Act".
13
11 Paragraph 33-1(c)
14
Omit "Part 4.4", substitute "by a notice given under section 63N of the
15
*
Quality and Safety Commission Act".
16
12 Subsection 33-4(1) (note)
17
Omit "Part 4.4 (see paragraph 66-1(g))", substitute "Part 7B of the
18
*
Quality and Safety Commission Act".
19
13 Section 36-4 (note)
20
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
21
Commission Act".
22
14 Subsection 42-2(1)
23
Omit "section 67A-5", substitute "section 63Q of the
*
Quality and
24
Safety Commission Act".
25
15 Paragraph 52G-2(d)
26
Repeal the paragraph, substitute:
27
(d) an accommodation payment must not be charged by an
28
approved provider if:
29
(i) a sanction has been imposed on the provider under
30
section 63N of the
*
Quality and Safety Commission
31
Act; and
32
Responsibilities of approved providers etc.
Schedule 2
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
31
(ii) the sanction prohibits the charging of an
1
accommodation payment for the service;
2
16 Paragraph 52G-6(d)
3
Repeal the paragraph, substitute:
4
(d) an accommodation contribution must not be charged by an
5
approved provider if:
6
(i) a sanction has been imposed on the provider under
7
section 63N of the
*
Quality and Safety Commission
8
Act; and
9
(ii) the sanction prohibits the charging of an
10
accommodation contribution for the service;
11
17 Section 53-1
12
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
13
Commission Act".
14
18 At the end of subsection 53-2(1)
15
Add "and the
*
Quality and Safety Commission Act".
16
19 Section 55-1
17
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
18
Commission Act".
19
20 Paragraphs 63-1(1)(b) and (ba)
20
Repeal the paragraphs, substitute:
21
(b) to cooperate with any person who is performing functions, or
22
exercising powers, in relation to the service under:
23
(i) Part 6.4 of this Act; or
24
(ii) Part 8 or 8A of the
*
Quality and Safety Commission
25
Act; or
26
(iii) Part 2 or 3 of the
*
Regulatory Powers Act;
27
21 Paragraph 63-1(1)(k)
28
Repeal the paragraph, substitute:
29
(k) if the approved provider has given an undertaking as required
30
by a notice given to the provider under section 63T of the
31
Schedule 2
Responsibilities of approved providers etc.
32
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Quality and Safety Commission Act--to comply with the
1
undertaking;
2
(l) if the approved provider has agreed to do one or more things
3
as required by a notice given to the provider under
4
section 63U of the Quality and Safety Commission Act--to
5
comply with the agreement;
6
22 Paragraphs 63-1AA(2)(b), (4)(b), (5)(e) and (7)(b)
7
Omit "Secretary", substitute "
*
Quality and Safety Commissioner".
8
23 Subsection 63-1A(2)
9
Omit "Sanctions Principles", substitute "Accountability Principles".
10
24 Paragraph 63-2(2)(f)
11
Omit "and" (second occurring).
12
25 Paragraph 63-2(2)(g)
13
Repeal the paragraph.
14
26 Part 4.4
15
Repeal the Part.
16
27 Section 84-1
17
Omit:
18
(d)
powers of officers in relation to monitoring compliance
19
and offences (see Part 6.4);
20
substitute:
21
(d)
the compliance and enforcement powers (see Part 6.4);
22
28 Subsections 88-1(1) and (2), 88-2(1) and 88-3(1) (note)
23
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
24
Commission Act".
25
29 Part 6.4
26
Repeal the Part, substitute:
27
Responsibilities of approved providers etc.
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
33
Part 6.4--Compliance and enforcement powers
1
Division 90--Introduction
2
90-1 Simplified outline of this Part
3
An APS employee in the Department may be appointed as an
4
*
authorised officer.
5
An authorised officer may enter premises with consent of the
6
occupier and exercise
*
search powers there for the purposes of the
7
Secretary:
8
(a)
making a decision on an application made under this Act
9
or the
Aged Care (Transitional Provisions) Act 1997
; or
10
(b)
determining whether the conditions to which a grant
11
under Chapter 5 of this Act is subject have been
12
complied with.
13
An authorised officer may enter premises under a warrant or with
14
consent of the occupier and exercise monitoring powers there
15
under Part 2 of the
*
Regulatory Powers Act, for the purposes of
16
determining:
17
(a)
whether section 25-3 (which deals with the appraisal of
18
the level of care needed by care recipients) or
19
sections 27-3 and 27-5 (which deal with the reappraisal
20
of the level of care needed by care recipients) of this Act
21
have been complied with; or
22
(b)
whether information given in compliance, or purported
23
compliance, with a provision of Chapter 3 of this Act or
24
a provision of Chapter 3 of the
Aged Care (Transitional
25
Provisions) Act 1997
(which both deal with
*
subsidies)
26
is correct.
27
An authorised officer may, under Part 3 of the Regulatory Powers
28
Act, gather material that relates to the contravention of a
*
civil
29
penalty provision in this Act.
30
Parts 2 and 3 of the Regulatory Powers Act are applied by this Part
31
with suitable modifications.
32
Schedule 2
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34
Aged Care Legislation Amendment (New Commissioner Functions) Bill
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No. , 2019
The Secretary may require a person in certain circumstances to
1
attend before an authorised officer to answer questions or provider
2
information or documents.
3
Table of Divisions
4
90
Introduction
5
91
Entry and search powers relating to certain applications and
6
grants
7
92
Regulatory Powers
8
93
Notice to attend to answer questions etc.
9
94
Appointment of authorised officers
10
Division 91--Entry and search powers relating to certain
11
applications and grants
12
91-1 Power to enter premises and exercise search powers in relation
13
to certain applications and grants
14
(1) This section applies if the Secretary considers that it is necessary
15
for an
*
authorised officer to exercise powers under this Division
16
for the purposes of the Secretary:
17
(a) making a decision on an application made under this Act or
18
the
Aged Care (Transitional Provisions) Act 1997
; or
19
(b) determining whether the conditions to which a grant under
20
Chapter 5 of this Act is subject have been complied with.
21
(2) An
*
authorised officer may:
22
(a) enter any premises; and
23
(b) exercise the
*
search powers in relation to the premises;
24
for the purposes of the Secretary making the decision or
25
determination.
26
(3) However, an
*
authorised officer is not authorised to enter premises
27
unless the occupier of the premises has consented to the entry.
28
Note:
An authorised officer must leave the premises if the consent ceases to
29
have effect (see section 91-2).
30
Responsibilities of approved providers etc.
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35
91-2 Consent
1
(1) Before obtaining the consent of an occupier of premises for the
2
purposes of subsection 91-1(3), an
*
authorised officer must:
3
(a) inform the occupier that the occupier may refuse to give
4
consent or may withdraw consent; and
5
(b) if the occupier is an approved provider--inform the occupier
6
that the occupier has a responsibility under
7
paragraph 63-1(1)(b) to cooperate with a person who is
8
performing functions, or exercising powers, under this Part.
9
Note:
Failure to comply with that responsibility may result in a sanction
10
being imposed on the approved provider under Part 7B of the
*
Quality
11
and Safety Commission Act.
12
(2) A consent has no effect unless the consent is voluntary.
13
(3) A consent may be expressed to be limited to entry during a
14
particular period. If so, the consent has effect for that period unless
15
the consent is withdrawn before the end of that period.
16
(4) A consent that is not limited as mentioned in subsection (3) has
17
effect until the consent is withdrawn.
18
(5) If an
*
authorised officer entered premises because of the consent of
19
the occupier of the premises, the officer must leave the premises if
20
the consent ceases to have effect.
21
(6) If:
22
(a) an
*
authorised officer enters premises because of the consent
23
of the occupier of the premises; and
24
(b) the officer has not shown the occupier the officer's identity
25
card before entering the premises;
26
the officer must do so on, or as soon as is reasonably practicable
27
after, entering the premises.
28
91-3 Search powers
29
(1) If an
*
authorised officer enters premises in accordance with
30
section 91-1, the following are the
search powers
that the officer
31
may exercise in relation to the premises:
32
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
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No. , 2019
(a) the power to search the premises and any thing on the
1
premises;
2
(b) the power to examine or observe any activity conducted on
3
the premises;
4
(c) the power to inspect, examine, take measurements of or
5
conduct tests on any thing on the premises;
6
(d) the power to make any still or moving image or any
7
recording of the premises or any thing on the premises;
8
(e) the power to inspect any document on the premises;
9
(f) the power to take extracts from, or make copies of, any such
10
document;
11
(g) the power to take onto the premises such equipment and
12
materials as the officer requires for the purpose of exercising
13
powers in relation to the premises;
14
(h) the powers set out in subsections (2) and (3).
15
(2) The
search powers
include the power to:
16
(a) operate electronic equipment on the premises entered in
17
accordance with section 91-1; and
18
(b) use a disk, tape or other storage device that:
19
(i) is on the premises; and
20
(ii) can be used with the equipment or is associated with it.
21
(3) If information that is relevant to the purposes for which the
22
*
authorised officer entered the premises under section 91-1 is
23
found in the exercise of the power under subsection (2), the
search
24
powers
include the following powers:
25
(a) the power to operate electronic equipment on the premises to
26
put the information in documentary form and remove the
27
documents so produced from the premises;
28
(b) the power to operate electronic equipment on the premises to
29
transfer the information to a disk, tape or other storage device
30
that:
31
(i) is brought to the premises for the exercise of the power;
32
or
33
(ii) is on the premises and the use of which for that purpose
34
has been agreed in writing by the occupier of the
35
premises;
36
Responsibilities of approved providers etc.
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37
and remove the disk, tape or other storage device from the
1
premises.
2
(4) An
*
authorised officer may operate electronic equipment as
3
mentioned in subsection (2) or (3) only if the officer believes on
4
reasonable grounds that the operation of the equipment can be
5
carried out without damage to the equipment.
6
91-4 Asking questions and seeking production of documents
7
(1) If an
*
authorised officer enters premises in accordance with
8
section 91-1, the officer may request a person at the premises:
9
(a) to answer any questions put by the officer; and
10
(b) to produce any documents or records requested by the
11
officer.
12
(2) Before the
*
authorised officer makes a request of an approved
13
provider under subsection (1), the officer must inform the provider
14
that the provider has a responsibility under paragraph 63-1(1)(b) to
15
cooperate with a person who is performing functions, or exercising
16
powers, under this Part.
17
Note:
Failure to comply with that responsibility may result in a sanction
18
being imposed on the approved provider under Part 7B of the
*
Quality
19
and Safety Commission Act.
20
(3) A person is not required to comply with a request made under
21
subsection (1).
22
Division 92--Regulatory powers
23
92-1 Monitoring powers
24
Provisions subject to monitoring
25
(1) The following provisions of this Act are subject to monitoring
26
under Part 2 of the
*
Regulatory Powers Act:
27
(a) section 25-3 (which deals with the appraisal of the level of
28
care needed by care recipients);
29
(b) sections 27-3 and 27-5 (which deal with the reappraisal of the
30
level of care needed by care recipients).
31
Schedule 2
Responsibilities of approved providers etc.
38
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Note:
Part 2 of the Regulatory Powers Act creates a framework for
1
monitoring whether the provisions have been complied with. It
2
includes powers of entry and inspection.
3
Information subject to monitoring
4
(2) Information given in compliance, or purported compliance, with
5
the following provisions of this Act is subject to monitoring under
6
Part 2 of the
*
Regulatory Powers Act:
7
(a) a provision of Chapter 3 of this Act (which deals with
8
*
subsidies);
9
(b) a provision of Chapter 3 of the
Aged Care (Transitional
10
Provisions) Act 1997
(which deals with subsidies).
11
Note:
Part 2 of the Regulatory Powers Act creates a framework for
12
monitoring whether the information is correct. It includes powers of
13
entry and inspection.
14
Related provisions
15
(3) For the purposes of Part 2 of the
*
Regulatory Powers Act, a
16
provision of Division 29A of this Act is related to the provisions
17
mentioned in subsection (1).
18
Authorised applicant, authorised person, issuing officer, relevant
19
chief executive and relevant court
20
(4) For the purposes of Part 2 of the
*
Regulatory Powers Act as it
21
applies in relation to the provisions mentioned in subsection (1)
22
and the information mentioned in subsection (2):
23
(a) an
*
authorised officer is an authorised applicant; and
24
(b) an authorised officer is an authorised person; and
25
(c) a magistrate is an issuing officer; and
26
(d) the Secretary is the relevant chief executive; and
27
(e) each of the following is a relevant court:
28
(i) the
*
Federal Court;
29
(ii) the Federal Circuit Court;
30
(iii) a court of a State or Territory that has jurisdiction in
31
relation to matters arising under this Act or the
Aged
32
Care (Transitional Provisions) Act 1997
.
33
Responsibilities of approved providers etc.
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39
Persons assisting
1
(5) An
*
authorised officer may be assisted by other persons in
2
exercising powers or performing functions under Part 2 of the
3
*
Regulatory Powers Act in relation to the provisions mentioned in
4
subsection (1) and the information mentioned in subsection (2).
5
Use of force in executing warrant
6
(6) In executing a warrant issued under Part 2 of the
*
Regulatory
7
Powers Act, as it applies in relation to the provisions mentioned in
8
subsection (1) and the information mentioned in subsection (2):
9
(a) an
*
authorised officer may use such force against things as is
10
necessary and reasonable in the circumstances; and
11
(b) a person assisting the officer may use such force against
12
things as is necessary and reasonable in the circumstances.
13
Extension to external Territories
14
(7) Part 2 of the
*
Regulatory Powers Act, as it applies in relation to the
15
provisions mentioned in subsection (1) and the information
16
mentioned in subsection (2), extends to the same external
17
Territories in which this Act applies.
18
Note:
See section 4-1 for the external Territories in which this Act applies.
19
92-2 Modifications of Part 2 of the Regulatory Powers Act
20
(1) This section applies in relation to Part 2 of the
*
Regulatory Powers
21
Act as that Part applies in relation to the following:
22
(a) the provisions mentioned in subsection 92-1(1) of this Act;
23
(b) the information mentioned in subsection 92-1(2) of this Act.
24
Consent
25
(2) Before obtaining the consent of an occupier of premises who is an
26
approved provider for the purposes of paragraph 18(2)(a) of the
27
*
Regulatory Powers Act, an
*
authorised officer must inform the
28
occupier that the occupier has a responsibility under
29
paragraph 63-1(1)(b) of this Act to cooperate with a person who is
30
performing functions, or exercising powers, under Part 2 of the
31
Regulatory Powers Act.
32
Schedule 2
Responsibilities of approved providers etc.
40
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Note:
See section 25 of the Regulatory Powers Act for additional rules about
1
consent.
2
Securing electronic equipment etc.
3
(3) Sections 21, 22 and 33 of the
*
Regulatory Powers Act are taken to
4
apply as if:
5
(a) a reference to "24 hours" in sections 21 and 22 of that Act
6
were a reference to "48 hours"; and
7
(b) a reference to a "24-hour period" in sections 21 and 22 of
8
that Act were a reference to a "48-hour period".
9
Asking questions and seeking production of documents
10
(4) The second reference to the occupier of premises in
11
subsection 24(2) of the
*
Regulatory Powers Act is taken to include
12
a reference to any other person on the premises.
13
(5) Before requesting a person who is an approved provider to answer
14
a question, or produce a document, under subsection 24(2) of the
15
*
Regulatory Powers Act, an
*
authorised officer must inform the
16
person that the person has a responsibility under
17
paragraph 63-1(1)(b) of this Act to cooperate with a person who is
18
performing functions, or exercising powers, under Part 2 of the
19
Regulatory Powers Act.
20
(6) If an
*
authorised officer requests a person to answer a question, or
21
produce a document, under subsection 24(2) of the
*
Regulatory
22
Powers Act, the person is not required to comply with the request.
23
92-3 Investigation powers
24
Provisions subject to investigation
25
(1) A provision is subject to investigation under Part 3 of the
26
*
Regulatory Powers Act if it is a
*
civil penalty provision.
27
Note:
Part 3 of the Regulatory Powers Act creates a framework for
28
investigating whether a provision has been contravened. It includes
29
powers of entry, search and seizure.
30
Responsibilities of approved providers etc.
Schedule 2
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
41
Authorised applicant, authorised person, issuing officer, relevant
1
chief executive and relevant court
2
(2) For the purposes of Part 3 of the
*
Regulatory Powers Act as it
3
applies in relation to evidential material that relates to a provision
4
mentioned in subsection (1):
5
(a) an
*
authorised officer is an authorised applicant; and
6
(b) an authorised officer is an authorised person; and
7
(c) a magistrate is an issuing officer; and
8
(d) the Secretary is the relevant chief executive; and
9
(e) each of the following is a relevant court:
10
(i) the
*
Federal Court;
11
(ii) the Federal Circuit Court;
12
(iii) a court of a State or Territory that has jurisdiction in
13
relation to matters arising under this Act or the
Aged
14
Care (Transitional Provisions) Act 1997
.
15
Persons assisting
16
(3) An
*
authorised officer may be assisted by other persons in
17
exercising powers or performing functions under Part 3 of the
18
*
Regulatory Powers Act in relation to evidential material that
19
relates to a provision mentioned in subsection (1).
20
Use of force in executing warrant
21
(4) In executing a warrant issued under Part 3 of the
*
Regulatory
22
Powers Act, as it applies in relation to evidential material that
23
relates to a provision mentioned in subsection (1):
24
(a) an
*
authorised officer may use such force against things as is
25
necessary and reasonable in the circumstances; and
26
(b) a person assisting the officer may use such force against
27
things as is necessary and reasonable in the circumstances.
28
Extension to external Territories
29
(5) Part 3 of the
*
Regulatory Powers Act, as it applies in relation to a
30
provision mentioned in subsection (1), extends to the same external
31
Territories in which this Act applies.
32
Note:
See section 4-1 for the external Territories in which this Act applies.
33
Schedule 2
Responsibilities of approved providers etc.
42
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
92-4 Modifications of Part 3 of the Regulatory Powers Act
1
(1) This section applies in relation to Part 3 of the
*
Regulatory Powers
2
Act as that Part applies in relation to evidential material that relates
3
to a provision mentioned in subsection 92-3(1) of this Act.
4
Securing electronic equipment etc.
5
(2) Sections 51 and 74 of the
*
Regulatory Powers Act are taken to
6
apply as if:
7
(a) a reference to "24 hours" in section 51 of that Act were a
8
reference to "48 hours"; and
9
(b) a reference to a "24-hour period" in section 51 of that Act
10
were a reference to a "48-hour period".
11
Asking questions and seeking production of documents
12
(3) The second reference to the occupier of premises in
13
subsection 54(2) of the
*
Regulatory Powers Act is taken to include
14
a reference to any other person on the premises.
15
(4) Before requesting a person who is an approved provider to answer
16
a question, or produce a document, under subsection 54(2) of the
17
*
Regulatory Powers Act, an
*
authorised officer must inform the
18
person that the person has a responsibility under
19
paragraph 63-1(1)(b) of this Act to cooperate with a person who is
20
performing functions, or exercising powers, under Part 3 of the
21
Regulatory Powers Act.
22
Division 93--Notice to attend to answer questions etc.
23
93-1 Notice to attend to answer questions etc. relevant to certain
24
matters
25
(1) This section applies if the Secretary believes on reasonable
26
grounds that a person has information or documents relevant to any
27
of the following matters (the
relevant matter
):
28
(a) an application made under this Act or the
Aged Care
29
(Transitional Provisions) Act 1997
;
30
(b) an appraisal of the level of care needed by care recipients
31
made under section 25-3 of this Act;
32
Responsibilities of approved providers etc.
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
43
(c) a reappraisal of the level of care needed by care recipients
1
made under sections 27-3 and 27-5 of this Act;
2
(d) a claim by an approved provider for payment of
*
subsidy
3
under Chapter 3 of this Act or Chapter 3 of the
Aged Care
4
(Transitional Provisions) Act 1997
;
5
(e) whether the conditions to which a grant under Chapter 5 of
6
this Act is subject have been complied with.
7
(2) The Secretary may, by written notice, require the person to attend
8
before an
*
authorised officer to do either or both of the following:
9
(a) to answer questions relating to the relevant matter;
10
(b) to give such information or documents (or copies of
11
documents) as are specified in the notice.
12
Notice requirements
13
(3) If a notice is given to a person under subsection (2), the notice
14
must:
15
(a) specify the
*
authorised officer before whom the person is
16
required to attend; and
17
(b) specify the day on which, and the time and place at which,
18
the person is required to attend.
19
(4) The day specified under paragraph (3)(b) must be at least 14 days
20
after the notice is given.
21
Circumstances in which a person is not required to comply
22
(5) A person is not required to comply with a requirement of a notice
23
given to the person under subsection (2) if the requirement does
24
not relate to the affairs of an approved provider that is a
25
*
corporation.
26
Offence
27
(6) A person commits an offence if:
28
(a) the person is given a notice under subsection (2); and
29
(b) the person fails to comply with a requirement of the notice;
30
and
31
(c) the requirement relates to the affairs of an approved provider
32
and the provider is a
*
corporation.
33
Schedule 2
Responsibilities of approved providers etc.
44
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
Penalty: 30 penalty units.
1
Reasonable compensation
2
(7) A person is entitled to be paid by the Commonwealth reasonable
3
compensation for complying with a requirement of a notice given
4
to the person under subsection (2) to give copies of documents.
5
93-2 Attending before authorised officer to answer questions
6
(1) This section applies if:
7
(a) a person is given a notice under subsection 93-1(2); and
8
(b) the notice requires the person to attend before an
*
authorised
9
officer to answer questions; and
10
(c) the person attends before the authorised officer for that
11
purpose.
12
(2) The
*
authorised officer may question the person on oath or
13
affirmation and may, for that purpose:
14
(a) require the person to take an oath or make an affirmation; and
15
(b) administer an oath or affirmation to the person.
16
(3) The oath or affirmation to be taken or made by the person for the
17
purposes of subsection (2) is an oath or affirmation that the
18
statements that the person will make will be true.
19
Circumstances in which a person is not required to take an oath
20
etc.
21
(4) A person is not required to comply with a requirement under
22
subsection (2) to take an oath or make an affirmation for the
23
purposes of answering questions if those questions do not relate to
24
the affairs of an approved provider that is a
*
corporation.
25
Note:
Approved providers have a responsibility under paragraph 63-1(1)(b)
26
to cooperate with a person who is performing functions, or exercising
27
powers, under this Part. Failure to comply with that responsibility may
28
result in a sanction being imposed on the provider under Part 7B of the
29
*
Quality and Safety Commission Act.
30
Offence
31
(5) A person commits an offence if:
32
Responsibilities of approved providers etc.
Schedule 2
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
45
(a) the person is required by an
*
authorised officer to take an
1
oath or make an affirmation for the purposes of answering
2
questions; and
3
(b) the person refuses or fails to comply with the requirement;
4
and
5
(c) the questions relate to the affairs of an approved provider and
6
the provider is a
*
corporation.
7
Penalty: 30 penalty units.
8
Division 94--Appointment of authorised officers
9
94-1 Authorised officers must carry identity card
10
An
*
authorised officer must carry the officer's
*
identity card at all
11
times when performing functions, or exercising powers, under
12
Division 91 as an authorised officer.
13
Note:
An authorised officer is also required to carry the officer's identity
14
card when exercising powers under Part 2 or 3 of the
*
Regulatory
15
Powers Act (see subsections 35(6) and 76(6) of that Act).
16
94-2 Appointment of authorised officers
17
(1) The Secretary may, in writing, appoint a person who is an APS
18
employee in the Department as an
*
authorised officer for the
19
purposes of this Part.
20
(2) The Secretary must not appoint a person as an
*
authorised officer
21
under subsection (1) unless the Secretary is satisfied that the person
22
has suitable training or experience to properly perform the
23
functions, or exercise the powers, of an authorised officer.
24
(3) An
*
authorised officer must, in performing the officer's functions
25
or exercising the officer's powers, comply with any directions of
26
the Secretary.
27
(4) If a direction is given under subsection (3) in writing, the direction
28
is not a legislative instrument.
29
30 Paragraph 95C-1(3)(a)
30
Repeal the paragraph, substitute:
31
Schedule 2
Responsibilities of approved providers etc.
46
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(a) the
*
Federal Court;
1
31 Section 96-1 (table item 22)
2
Repeal the item.
3
32 Subparagraph 96-8(1)(b)(ii)
4
Omit "Secretary", substitute "
*
Quality and Safety Commissioner".
5
33 Subsection 96-8(6) (note)
6
Omit "Part 4.4", substitute "Part 7B of the
*
Quality and Safety
7
Commission Act".
8
34 Clause 1 of Schedule 1 (definition of
authorised officer
)
9
Repeal the definition, substitute:
10
authorised officer
means a person appointed as an authorised
11
officer under subsection 94-2(1).
12
35 Clause 1 of Schedule 1
13
Insert:
14
Federal Court
means the Federal Court of Australia.
15
identity card
,
in relation to an
*
authorised officer, means an
16
identity card issued to the officer under section 35 or 76 of the
17
*
Regulatory Powers Act.
18
36 Clause 1 of Schedule 1 (definition of
monitoring powers
)
19
Repeal the definition.
20
37 Clause 1 of Schedule 1
21
Insert:
22
search powers
has the meaning given by section 91-3.
23
38 Clause 1 of Schedule 1 (definition of
section 67-5 notice
24
time
)
25
Repeal the definition.
26
Responsibilities of approved providers etc.
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
47
Aged Care Quality and Safety Commission Act 2018
1
39 Section 6 (before paragraph (b))
2
Insert:
3
(ab)
the functions of imposing sanctions on approved
4
providers and lifting sanctions; and
5
(ac)
the function of ensuring compliance with the aged care
6
responsibilities of approved providers and provisions of
7
this Act and the Aged Care Act; and
8
40 Section
6 (paragraph beginning "This Act also")
9
Omit "information, confidentiality and powers to enter premises and
10
exercise the search powers in relation to premises for certain purposes",
11
substitute "information and confidentiality".
12
41 Section 7
13
Insert:
14
accommodation bond
has the same meaning as in the Aged Care
15
Act.
16
accommodation charge
has the same meaning as in the Aged Care
17
Act.
18
accommodation contribution
has the same meaning as in the Aged
19
Care Act.
20
accommodation payment
has the same meaning as in the Aged
21
Care Act.
22
aged care responsibility
means a responsibility of an approved
23
provider under Chapter 4 of the Aged Care Act.
24
42 Section 7 (definition of
authorised complaints officer
)
25
Repeal the definition.
26
43 Section 7
27
Insert:
28
Schedule 2
Responsibilities of approved providers etc.
48
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
authorised officer
means a person appointed as an authorised
1
officer under subsection 75A(1).
2
distinct part
, in relation to a residential care service, has the same
3
meaning as in the Aged Care Act.
4
eligible adviser
means a person other than:
5
(a) a disqualified individual; or
6
(b) an officer of the Commonwealth; or
7
(c) a person specified in the rules.
8
extra service status
has the same meaning as in the Aged Care Act.
9
44 Section 7 (definition of
identity card
)
10
Repeal the definition, substitute:
11
identity card
means:
12
(a) in relation to an authorised officer--an identity card issued to
13
the authorised officer under section 35 or 76 of the
14
Regulatory Powers Act; or
15
(b) in relation to a quality assessor--an identity card issued to
16
the quality assessor under section 74 of this Act.
17
45 Section 7
18
Insert:
19
non-compliance notice
means a notice given under
20
subsection 63S(2).
21
occupied place
of an approved provider: see subsection 63Q(5).
22
Regulatory Powers Act
means the
Regulatory Powers (Standard
23
Provisions) Act 2014
.
24
subsidy
has the same meaning as in the Aged Care Act.
25
vacant place
of an approved provider: see subsection 63Q(4).
26
46 Section 14 (before paragraph (b))
27
Insert:
28
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49
(ab)
imposing sanctions on approved providers and lifting
1
sanctions; and
2
(ac)
ensuring compliance with the aged care responsibilities
3
of approved providers and provisions of this Act and the
4
Aged Care Act; and
5
47 Before paragraph 16(1)(b)
6
Insert:
7
(ab) the functions conferred on the Commissioner by Part 7B
8
(which deals with imposing sanctions on approved providers
9
that have not complied, or are not complying, with the aged
10
care responsibilities);
11
(ac) to ensure compliance with:
12
(i) the aged care responsibilities of approved providers; and
13
(ii) provisions of this Act and the Aged Care Act;
14
48 At the end of section 52
15
Add:
16
; and (d) information about sanctions imposed under Part 7B for
17
non-compliance with aged care responsibilities, including the
18
nature of the non-compliance and the sanctions imposed.
19
49 Paragraphs 61(1)(a) to (g)
20
Omit "; and", substitute "; or".
21
50 After paragraph 61(1)(g)
22
Insert:
23
(ga) if an approved provider has appointed an eligible adviser as
24
required by a notice given to the provider under
25
section 63U--to the eligible adviser for the purposes of that
26
appointment; or
27
51 Paragraphs 61(1)(h) and (i)
28
Omit "; and", substitute "; or".
29
52 Before Part 8
30
Insert:
31
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
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No. , 2019
Part 7B--Sanctions for non-compliance with aged
1
care responsibilities of approved providers
2
Division 1--Introduction
3
63M Simplified outline of this Part
4
The Commissioner may impose sanctions under this Part on an
5
approved provider that has not complied, or is not complying, with
6
one or more of the aged care responsibilities of the provider.
7
Certain procedures must be followed if sanctions are to be
8
imposed.
9
An approved provider may be asked in certain circumstances to
10
give an undertaking or to agree to do one or more things to avoid a
11
sanction being imposed.
12
Certain sanctions may be lifted by the Commissioner on
13
application by the approved provider.
14
Division 2--Imposition of sanctions by the Commissioner
15
63N Commissioner may impose sanctions for non-compliance with
16
aged care responsibilities
17
(1) The Commissioner may impose one or more sanctions of a kind
18
mentioned in section 63R on an approved provider if:
19
(a) the Commissioner is satisfied that the provider has not
20
complied, or is not complying, with one or more of the aged
21
care responsibilities of the provider; and
22
(b) the Commissioner is satisfied that it is appropriate to impose
23
those sanctions on the provider.
24
Note 1:
The approved provider may request the Commissioner to reconsider
25
the decision under Part 8B.
26
Note 2:
In certain circumstances, the Commissioner must give a notice under
27
section 63S before deciding to impose a sanction under this section.
28
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51
Commissioner must consider certain matters
1
(2) In deciding whether an approved provider has not complied, or is
2
not complying, with the aged care responsibility referred to in
3
paragraph 63-1(1)(a) or (h) of the Aged Care Act, the
4
Commissioner may have regard to any information provided by the
5
Secretary in relation to that matter.
6
(3) In deciding whether it is appropriate to impose sanctions on an
7
approved provider for non-compliance with one or more of the
8
aged care responsibilities of the provider, the Commissioner must
9
consider the following matters:
10
(a) whether the non-compliance is of a minor or serious nature;
11
(b) whether the non-compliance has occurred previously and, if
12
so, how many times it has previously occurred;
13
(c) whether the non-compliance threatens the health, welfare or
14
interests of the care recipients to whom the provider is
15
providing care;
16
(d) whether the non-compliance would threaten the health,
17
welfare or interests of care recipients to whom the provider
18
may provide care in the future;
19
(e) if the provider has given an undertaking as required by a
20
notice given to the provider under section 63T--whether or
21
not the provider has complied with the undertaking;
22
(f) if the provider has agreed to do one or more things as
23
required by a notice given to the provider under
24
section 63U--whether or not the provider has complied with
25
the agreement;
26
(g) the desirability of deterring future non-compliance;
27
(h) any other matters specified in the rules.
28
(4) However, the Commissioner must give paramount consideration to
29
the matters specified in paragraphs (3)(c) and (d).
30
Notice of decision to impose sanctions
31
(5) If the Commissioner decides to impose, under subsection (1), one
32
or more sanctions on an approved provider in relation to the
33
provider's non-compliance with one or more aged care
34
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
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No. , 2019
responsibilities, the Commissioner must, within 14 days after
1
making the decision, give the provider a written notice that:
2
(a) sets out the decision; and
3
(b) sets out the reasons for the decision; and
4
(c) sets out the details of the provider's non-compliance; and
5
(d) specifies each of the sanctions and sets out the effect each
6
sanction will have on the provider; and
7
(e) if a sanction is to revoke or suspend the allocation of some or
8
all of the places allocated to the provider under Part 2.2 of the
9
Aged Care Act--specifies the number of those places subject
10
to the sanction; and
11
(f) specifies the day on which each of the sanctions comes into
12
effect; and
13
(g) if a sanction is to cease to have effect on a particular day:
14
(i) specifies that day; and
15
(ii) sets out the effect of Division 4 of this Part (which deals
16
with the lifting of sanctions).
17
Note:
In certain circumstances, the Commissioner must comply with
18
sections 63P and 63Q in specifying a day for the purposes of
19
paragraph (f) of this subsection.
20
(6) The rules may specify matters that the Commissioner must have
21
regard to in doing any one or more of the following:
22
(a) specifying a day under paragraph (5)(f) in relation to a
23
sanction;
24
(b) deciding whether or not to specify a day under
25
subparagraph (5)(g)(i) in relation to a sanction;
26
(c) specifying a day under subparagraph (5)(g)(i) in relation to a
27
sanction.
28
63P Period within which the revocation of approval of approved
29
provider must take effect in certain circumstances
30
(1) This section applies if:
31
(a) the Commissioner decides to impose, under section 63N, a
32
sanction on an approved provider in relation to the provider's
33
non-compliance with one or more aged care responsibilities
34
of the provider; and
35
(b) the sanction is to revoke the provider's approval; and
36
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53
(c) no other sanction is to be imposed on the provider in relation
1
to the non-compliance.
2
(2) The Commissioner must specify a day for the purposes of
3
paragraph 63N(5)(f) in relation to the sanction that is no later than
4
14 days after the date of the notice given to the approved provider
5
under subsection 63N(5) in relation to the sanction.
6
63Q When the revocation or suspension of allocation of places is to
7
take effect
8
(1) This section applies if:
9
(a) the Commissioner decides to impose, under section 63N, a
10
sanction on an approved provider in relation to the provider's
11
non-compliance with one or more aged care responsibilities
12
of the provider; and
13
(b) the sanction is to revoke or suspend a particular number of
14
places (the
affected places
) allocated to the provider under
15
Part 2.2 of the Aged Care Act; and
16
(c) immediately before the date (the
sanction notice date
) of the
17
notice given to the provider under subsection 63N(5) in
18
relation to the sanction, the affected places are not all vacant
19
places of the provider.
20
(2) If the sanction relates to an affected place that is a vacant place of
21
the approved provider, the Commissioner must specify, for the
22
purposes of paragraph 63N(5)(f), the sanction notice date as the
23
day on which the sanction comes into effect for the vacant place.
24
(3) If the sanction relates to an affected place that is an occupied place
25
of the approved provider, the Commissioner must specify, for the
26
purposes of paragraph 63N(5)(f), the first day after the day on
27
which the provider ceases to provide aged care to a care recipient
28
in respect of the occupied place as the day on which the sanction
29
comes into effect for the occupied place.
30
(4) A
vacant place
of the approved provider is a place allocated to the
31
provider under Part 2.2 of the Aged Care Act in respect of which
32
the provider is not providing aged care to a care recipient
33
immediately before the sanction notice date.
34
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
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(5) An
occupied place
of the approved provider is a place allocated to
1
the provider under Part 2.2 of the Aged Care Act in respect of
2
which the provider is providing aged care to a care recipient
3
immediately before the sanction notice date.
4
Note:
A care recipient who is on leave under section 42-2 of the Aged Care
5
Act from a residential care service is taken to be provided with
6
residential care by the approved provider of the service (see
7
subsection 42-2(1) of that Act).
8
63R Kinds of sanctions that may be imposed on approved providers
9
The following are the kinds of sanctions that may be imposed on
10
an approved provider under section 63N:
11
(a) revoking or suspending the approval of the provider;
12
(b) restricting the approval of the provider to the aged care
13
services conducted by the provider at a specified time;
14
(c) restricting the payment of subsidies under the Aged Care Act
15
to the provision of care to care recipients to whom the
16
provider is providing care, through one or more, or all,
17
specified aged care services, at a specified time;
18
(d) revoking or suspending the allocation of some or all of the
19
places allocated to the provider under Part 2.2 of the Aged
20
Care Act;
21
(e) varying the conditions to which the allocation of some or all
22
of the places allocated to the provider under Part 2.2 of the
23
Aged Care Act is subject under section 14-5 or 14-6 of that
24
Act;
25
(f) prohibiting the further allocation of places under Part 2.2 of
26
the Aged Care Act to the provider;
27
(g) revoking or suspending the extra service status in respect of a
28
residential care service, or a distinct part of a residential care
29
service, conducted by the provider;
30
(h) prohibiting the granting of extra service status in respect of a
31
residential care service, or a distinct part of a residential care
32
service, conducted by the provider;
33
(i) prohibiting the charging of an accommodation payment, or
34
an accommodation contribution, for:
35
(i) one or more, or all, specified residential care services
36
conducted by the provider; or
37
Responsibilities of approved providers etc.
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
55
(ii) one or more, or all, specified flexible care services
1
conducted by the provider;
2
(j) prohibiting the charging of an accommodation bond, or an
3
accommodation charge, for the entry (within the meaning of
4
the Aged Care Act) of care recipients to:
5
(i) one or more, or all, specified residential care services
6
conducted by the provider; or
7
(ii) one or more, or all, specified flexible care services
8
conducted by the provider;
9
(k) if the provider has charged an amount of accommodation
10
payment or accommodation contribution that is more than the
11
amount the provider is permitted to charge under
12
Division 52G of the Aged Care Act--requiring the provider
13
to refund, in accordance with that Division and within a
14
specified period, an amount equal to the excess amount
15
charged by the provider;
16
(l) restricting, during a specified period, the use by the provider
17
of a refundable deposit, or an accommodation bond, to one or
18
more specified uses that are permitted under Division 52N of
19
the Aged Care Act;
20
(m) if the provider is required under Division 52P of the Aged
21
Care Act to refund an amount in accordance with that
22
Division and the provider has not done so--requiring the
23
provider to refund the amount in accordance with that
24
Division within a specified period;
25
(n) requiring the provider to repay any or all of the amount of a
26
grant paid to the provider under Chapter 5 of the Aged Care
27
Act;
28
(o) any other sanctions specified in the rules.
29
Division 3--Notices that must, or may be given, before
30
sanctions are imposed
31
63S Commissioner must notify approved provider of intention to
32
impose sanctions on the provider
33
(1) This section applies if the Commissioner is satisfied that:
34
(a) an approved provider has not complied, or is not complying,
35
with one or more of the aged care responsibilities of the
36
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
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No. , 2019
provider (other than the responsibility referred to in
1
paragraph 63-1(1)(k) or (l) of the Aged Care Act); and
2
(b) there is no immediate and severe risk to the safety, health and
3
well-being of care recipients to whom the provider is
4
providing care as a result of the non-compliance.
5
(2) Before the Commissioner decides to impose, under section 63N,
6
one or more sanctions on the approved provider in relation to the
7
non-compliance, the Commissioner must, by written notice, notify
8
the provider that the Commissioner is considering imposing those
9
sanctions on the provider in relation to the non-compliance.
10
(3) The notice must:
11
(a) set out details of the approved provider's non-compliance;
12
and
13
(b) set out the reasons why the Commissioner is considering
14
imposing, under section 63N, one or more sanctions on the
15
provider in relation to the non-compliance; and
16
(c) set out the kinds of sanctions that the Commissioner is
17
considering imposing on the provider and the effect those
18
sanctions, if imposed, would have on the provider; and
19
(d) set out broadly what action the Commissioner requires the
20
provider to take to remedy the non-compliance; and
21
(e) invite the provider to make submissions, in writing, to the
22
Commissioner in relation to the matter within:
23
(i) 14 days after receiving the notice; or
24
(ii) if a shorter period is specified in the notice--that shorter
25
period; and
26
(f) inform the provider that the Commissioner may, after
27
considering any submissions made by the provider:
28
(i) give the provider a notice under section 63T in relation
29
to the non-compliance; or
30
(ii) decide to impose, under section 63N, one or more
31
sanctions on the provider in relation to the
32
non-compliance.
33
(4) The Commissioner must consider any submissions made by the
34
approved provider in accordance with the notice.
35
Responsibilities of approved providers etc.
Schedule 2
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2019
57
63T Approved provider may be required to give undertaking about
1
remedying non-compliance
2
(1) This section applies if:
3
(a) an approved provider is given a non-compliance notice in
4
relation to the provider's non-compliance with one or more
5
aged care responsibilities of the provider; and
6
(b) the provider makes submissions to the Commissioner as
7
required by the notice; and
8
(c) the Commissioner considers that the submissions:
9
(i) propose appropriate action to remedy the
10
non-compliance; or
11
(ii) set out an acceptable reason for the non-compliance; or
12
(iii) are otherwise satisfactory.
13
(2) The Commissioner may, by written notice:
14
(a) require the approved provider to give the Commissioner an
15
undertaking in relation to the non-compliance that complies
16
with subsection (3) within:
17
(i) 14 days after receiving the notice; or
18
(ii) if a shorter period is specified in the notice--that shorter
19
period; and
20
(b) inform the provider that the Commissioner may decide to
21
impose, under section 63N, one or more sanctions on the
22
provider in relation to the non-compliance if:
23
(i) the provider does not give the required undertaking; or
24
(ii) the provider does not comply with any such undertaking
25
given by the provider.
26
(3) An undertaking given by an approved provider in relation to the
27
provider's non-compliance with one or more aged care
28
responsibilities of the provider must:
29
(a) be given in writing; and
30
(b) be in a form approved by the Commissioner; and
31
(c) describe and acknowledge the non-compliance; and
32
(d) set out what action the provider proposes to take to remedy
33
the non-compliance; and
34
(e) set out the period within which such action is to be taken; and
35
Schedule 2
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58
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(f) include a statement acknowledging that the Commissioner
1
may decide to impose, under section 63N, one or more
2
sanctions on the provider if the provider does not comply
3
with the undertaking; and
4
(g) meet any other requirements specified in the rules.
5
Note:
Approved providers have a responsibility under paragraph 63-1(1)(k)
6
of the Aged Care Act to comply with the undertaking. Failure to
7
comply with that responsibility may result in a sanction being imposed
8
under section 63N of this Act.
9
63U Approved provider may be required to agree to certain matters
10
if revocation of approval is being considered
11
(1) This section applies if:
12
(a) the Commissioner is satisfied that an approved provider has
13
not complied, or is not complying, with one or more of the
14
aged care responsibilities of the provider (other than the
15
responsibility referred to in paragraph 63-1(1)(l) of the Aged
16
Care Act); and
17
(b) the Commissioner is satisfied that:
18
(i) there is an immediate and severe risk to the safety,
19
health and well-being of care recipients to whom the
20
provider is providing care as a result of the
21
non-compliance; or
22
(ii) if the provider made submissions to the Commissioner
23
in relation to the non-compliance as required by a
24
non-compliance notice given to the provider--the
25
submissions do not satisfy any of
26
subparagraphs 63T(1)(c)(i), (ii) or (iii); or
27
(iii) if the provider is required by a notice given to the
28
provider under section 63T to give the Commissioner an
29
undertaking in relation to the non-compliance--the
30
provider has failed to give the undertaking; or
31
(iv) if the provider has given an undertaking as required by a
32
notice given to the provider under section 63T--the
33
provider has failed to comply with the undertaking; and
34
(c) the Commissioner is considering imposing, under
35
section 63N, a sanction on the provider for the
36
non-compliance; and
37
Responsibilities of approved providers etc.
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2019
59
(d) the sanction (the
revocation sanction
) is the revocation of the
1
approval of the provider.
2
(2) Before the Commissioner decides to impose, under section 63N,
3
the revocation sanction on the approved provider in relation to the
4
non-compliance, the Commissioner may, by written notice:
5
(a) require the provider to agree, in writing, to do any one or
6
more things specified in the notice; and
7
(b) inform the provider that, if the provider does not agree to do
8
those specified things in accordance with the notice, the
9
Commissioner will impose the revocation sanction on the
10
provider in relation to the non-compliance.
11
Note:
Approved providers have a responsibility under paragraph 63-1(1)(l)
12
of the Aged Care Act to comply with the agreement. Failure to comply
13
with that responsibility may result in a sanction being imposed under
14
section 63N of this Act.
15
(3) For the purposes of subsection (2), the following are the kinds of
16
things that the Commissioner may require an approved provider to
17
do in a notice given under that subsection:
18
(a) to provide, at the provider's expense and within the period
19
specified in the notice, such training as is specified in the
20
notice for the provider's officers, employees and agents;
21
(b) to provide, within the period specified in the notice, such
22
security as is specified in the notice for any debts owed by
23
the provider to the Commonwealth;
24
(c) to appoint, within the period specified in the notice, an
25
eligible adviser who has appropriate qualifications, skills or
26
experience to assist the provider to comply with the
27
provider's aged care responsibilities in relation to either or
28
both of the following matters:
29
(i) the care and services provided by the provider;
30
(ii) the governance and business operations of the provider;
31
(d) to give an eligible adviser appointed by the provider for that
32
purpose all the necessary information required by the adviser
33
to provide that assistance;
34
(e) to transfer, within the period specified in the notice, any or all
35
of the places allocated to the provider under Part 2.2 of the
36
Aged Care Act to another approved provider;
37
(f) to do any other things specified in the rules.
38
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No. , 2019
(4) The rules may specify matters that the Commissioner must take
1
into account in specifying a period in a notice given under
2
subsection (2) for the purposes of paragraph (3)(c).
3
Division 4--Lifting of sanctions imposed on approved
4
providers
5
63V Application for lifting of sanction imposed on approved
6
provider
7
(1) If:
8
(a) a sanction has been imposed on an approved provider under
9
section 63N; and
10
(b) the notice given to the provider under that section specified a
11
day on which the sanction is to cease to have effect; and
12
(c) the sanction is still in effect;
13
the provider may apply to the Commissioner for the sanction to be
14
lifted.
15
(2) The application must:
16
(a) be made in writing; and
17
(b) be in a form approved by the Commissioner; and
18
(c) be accompanied by any documents or information specified
19
by the Commissioner; and
20
(d) be accompanied by any fee specified by the Commissioner.
21
(3) The approved provider may, in writing, withdraw the application at
22
any time before the Commissioner makes a decision on the
23
application.
24
63W Request for further information
25
(1) If:
26
(a) an approved provider makes an application under
27
subsection 63V(1); and
28
(b) the Commissioner needs further information to make a
29
decision on the application;
30
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2019
61
the Commissioner may, by written notice, request the provider to
1
give further information to the Commissioner within a specified
2
period.
3
(2) The specified period must not be shorter than 28 days after the
4
notice is given.
5
(3) However, the specified period may be shorter than 28 days after
6
the notice is given if the circumstances specified in the rules apply
7
in relation to the application.
8
(4) The Commissioner may, at the approved provider's request, extend
9
the specified period.
10
(5) If the approved provider does not give the requested further
11
information within:
12
(a) if the specified period has been extended under
13
subsection (4)--the period as so extended; or
14
(b) otherwise--the specified period;
15
the application is taken to be withdrawn at the end of the period.
16
Note:
If the application is taken to be withdrawn under this subsection, the
17
approved provider may make another application under section 63V.
18
(6) A notice given under subsection (1) must set out the effect of
19
subsection (5).
20
63X Commissioner must decide whether to lift sanction imposed on
21
approved provider
22
(1) If an approved provider makes an application under
23
subsection 63V(1) in relation to a sanction imposed on the
24
provider, the Commissioner must decide whether to lift the
25
sanction within:
26
(a) if a request for further information in relation to the
27
application has been made under subsection 63W(1)--28
28
days after receiving the further information; or
29
(b) otherwise--28 days after receiving the application.
30
Note:
See Part 8B for the reconsideration of a decision not to lift the
31
sanction.
32
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(2) The Commissioner must lift the sanction imposed on the approved
1
provider if the Commissioner is satisfied that it is appropriate for
2
the sanction to be lifted.
3
(3) In deciding whether it is appropriate for the sanction imposed on
4
the approved provider to be lifted, the Commissioner must have
5
regard to:
6
(a) whether the approved provider is complying with the aged
7
care responsibilities of the provider; and
8
(b) any other matters specified in the rules.
9
63Y Notification of decision relating to lifting of sanction imposed on
10
approved provider
11
Decision to lift sanction
12
(1) If the Commissioner decides, under section 63X, to lift a sanction
13
imposed on an approved provider, the Commissioner must, within
14
14 days after making the decision, give written notice of the
15
following to the provider:
16
(a) the decision;
17
(b) the day on which the sanction will cease to be in effect;
18
(c) any other matters specified in the rules.
19
Decision not to lift sanction
20
(2) If the Commissioner decides, under section 63X, not to lift a
21
sanction imposed on an approved provider, the Commissioner
22
must, within 14 days after making the decision, give written notice
23
of the following to the provider:
24
(a) the decision;
25
(b) the reasons for the decision;
26
(c) how the provider may apply for reconsideration of the
27
decision.
28
Secretary must be given copy of notice
29
(3) The Commissioner must, as soon as is practicable, give the
30
Secretary a copy of a notice given under subsection (1) or (2).
31
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53 Part 8 (heading)
1
Repeal the heading, substitute:
2
Part 8--Entry and search powers relating to
3
provider approval applications etc.
4
54 Section 64
5
Omit "powers of authorised complaints", substitute "powers of
6
authorised".
7
55 Section 64
8
Omit:
9
The Commissioner is to appoint authorised complaints officers.
10
The Commissioner must also ensure that identity cards are issued
11
to authorised complaints officers and quality assessors.
12
substitute:
13
The Commissioner must cause identity cards to be issued to quality
14
assessors.
15
56 Division 2 of Part 8 (heading)
16
Omit "
complaints
".
17
57 Before section 65
18
Insert:
19
64A Power to enter premises and exercise search powers in relation
20
to applications for approval as provider of aged care
21
(1) This section applies if:
22
(a) an application for approval as a provider of aged care is made
23
under section 63B; and
24
(b) the Commissioner considers that, for the purposes of making
25
a decision on the application, it is necessary for an authorised
26
officer to exercise powers under this Division.
27
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(2) An authorised officer may:
1
(a) enter any premises; and
2
(b) exercise the search powers in relation to the premises;
3
for the purposes of the Commissioner making a decision on the
4
application.
5
(3) However, an authorised officer is not authorised to enter premises
6
unless the occupier of the premises has consented to the entry.
7
Note:
An authorised officer must leave the premises if the consent ceases to
8
have effect (see section 66).
9
58 Section 65
10
Omit "complaints officer" (wherever occurring), substitute "officer".
11
59 Subsection 66(1)
12
Omit "65(3), an authorised complaints", substitute "64A(3) or 65(3), an
13
authorised".
14
60 Paragraph 66(1)(b)
15
Omit "paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a
16
person who is exercising powers", substitute "paragraph 63-1(1)(b) of
17
the Aged Care Act to cooperate with a person who is performing
18
functions, or exercising powers,".
19
61 Subsection 66(1) (note)
20
Omit "Part 4.4 of the Aged Care Act", substitute "Part 7B".
21
62 Subsection 66(5)
22
Omit "complaints".
23
63 Paragraph 66(6)(a)
24
Omit "complaint".
25
64 Subsection 67(1)
26
Omit "complaints officer enters premises in accordance with section",
27
substitute "officer enters premises in accordance with section 64A or".
28
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65 Subsection 67(2)
1
Omit "complaints".
2
66 Subsection 67(2)
3
Omit "paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a
4
person who is exercising powers", substitute "paragraph 63-1(1)(b) of
5
the Aged Care Act to cooperate with a person who is performing
6
functions, or exercising powers,".
7
67 Subsection 67(2) (note)
8
Omit "Part 4.4 of the Aged Care Act", substitute "Part 7B".
9
68 Paragraph 69(1)(b)
10
Omit "paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a
11
person who is exercising powers", substitute "paragraph 63-1(1)(b) of
12
the Aged Care Act to cooperate with a person who is performing
13
functions, or exercising powers,".
14
69 Subsection 69(1) (note)
15
Omit "Part 4.4 of the Aged Care Act", substitute "Part 7B".
16
70 Subsection 70(2)
17
Omit "paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a
18
person who is exercising powers", substitute "paragraph 63-1(1)(b) of
19
the Aged Care Act to cooperate with a person who is performing
20
functions, or exercising powers,".
21
71 Subsection 70(2) (note)
22
Omit "Part 4.4 of the Aged Care Act", substitute "Part 7B".
23
72 Paragraph 71(1)(a)
24
Repeal the paragraph, substitute:
25
(a) an authorised officer enters premises in accordance with
26
section 64A or 65; or
27
73 Subsection 71(2)
28
Omit "complaints".
29
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74 Paragraph 72(1)(a)
1
After "section", insert "64A,".
2
75 Paragraph 72(3)(a)
3
Omit "complaints officer entered the premises in accordance with
4
section", substitute "officer entered the premises in accordance with
5
section 64A or".
6
76 Subsection 72(5)
7
Omit "complaints".
8
77 Division 5 of Part 8 (heading)
9
Repeal the heading, substitute:
10
Division 5--Identity cards
11
78 Section 73
12
Repeal the section, substitute:
13
73 Authorised officers must carry identity card
14
An authorised officer must carry the officer's identity card at all
15
times when performing functions, or exercising powers, under this
16
Part as an authorised officer.
17
79 Section 74 (heading)
18
Repeal the heading, substitute:
19
74 Identity cards for quality assessors
20
80 Subsection 74(1)
21
Repeal the subsection, substitute:
22
(1) The Commissioner must cause an identity card to be issued to a
23
person who is a quality assessor.
24
81 Subsection 74(3)
25
Repeal the subsection (not including the heading).
26
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82 Subsection 74(5)
1
Omit "(3) or".
2
83 Subsection 74(6)
3
Omit "Subsections (3) and (4) do", substitute "Subsection (4) does".
4
84 Subsection 74(7)
5
Repeal the subsection (not including the heading).
6
85 After Part 8
7
Insert:
8
Part 8A--Enforcement of responsibilities of
9
approved providers
10
Division 1--Introduction
11
74A Simplified outline of this Part
12
An authorised officer may enter premises under a warrant or with
13
consent of the occupier and exercise monitoring powers there
14
under Part 2 of the Regulatory Powers Act, for the purposes of
15
determining the following:
16
(a)
whether a provision of Chapter 4 of the Aged Care Act
17
has been, or is being, complied with;
18
(b)
whether information given in compliance or purported
19
compliance with a provision of that chapter is correct.
20
An authorised officer may, under Part 3 of the Regulatory Powers
21
Act, gather material that relates to the contravention of offences
22
against:
23
(a)
this Act or the Aged Care Act; or
24
(b)
the
Crimes Act 1914
or the
Criminal Code
that relates to
25
this Act or the Aged Care Act.
26
Parts 2 and 3 of the Regulatory Powers Act are applied by this Part
27
with suitable modifications.
28
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The Commissioner may require a person in certain circumstances
1
to attend before an authorised officer to answer questions or give
2
certain information or documents.
3
Division 2--Regulatory powers
4
74B Monitoring powers
5
Provisions subject to monitoring
6
(1) A provision of Chapter 4 of the Aged Care Act is subject to
7
monitoring under Part 2 of the Regulatory Powers Act.
8
Note:
Part 2 of the Regulatory Powers Act creates a framework for
9
monitoring whether Chapter 4 of the Aged Care Act (which deals with
10
the responsibilities of approved providers) has been complied with. It
11
includes powers of entry and inspection.
12
Information subject to monitoring
13
(2) Information given in compliance or purported compliance with a
14
provision of Chapter 4 of the Aged Care Act is subject to
15
monitoring under Part 2 of the Regulatory Powers Act.
16
Note:
Part 2 of the Regulatory Powers Act creates a framework for
17
monitoring whether the information is correct. It includes powers of
18
entry and inspection.
19
Related provisions
20
(3) For the purposes of Part 2 of the Regulatory Powers Act, a
21
provision of the Aged Care Act that is referred to in Chapter 4 of
22
the Aged Care Act is related to the provision mentioned in
23
subsection (1) and the information mentioned in subsection (2).
24
Authorised applicant, authorised person, issuing officer, relevant
25
chief executive and relevant court
26
(4) For the purposes of Part 2 of the Regulatory Powers Act as it
27
applies in relation to the provision mentioned in subsection (1) and
28
the information mentioned in subsection (2):
29
(a) an authorised officer is an authorised applicant; and
30
(b) an authorised officer is an authorised person; and
31
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(c) a magistrate is an issuing officer; and
1
(d) the Commissioner is the relevant chief executive; and
2
(e) each of the following is a relevant court:
3
(i) the Federal Court;
4
(ii) the Federal Circuit Court;
5
(iii) a court of a State or Territory that has jurisdiction in
6
relation to matters arising under this Act, the Aged Care
7
Act or the
Aged Care (Transitional Provisions) Act
8
1997
.
9
Persons assisting
10
(5) An authorised officer may be assisted by other persons in
11
exercising powers or performing functions under Part 2 of the
12
Regulatory Powers Act in relation to the provision mentioned in
13
subsection (1) and the information mentioned in subsection (2).
14
Use of force in executing warrant
15
(6) In executing a warrant issued under Part 2 of the Regulatory
16
Powers Act, as it applies in relation to the provision mentioned in
17
subsection (1) and the information mentioned in subsection (2):
18
(a) an authorised officer may use such force against things as is
19
necessary and reasonable in the circumstances; and
20
(b) a person assisting the officer may use such force against
21
things as is necessary and reasonable in the circumstances.
22
Extension to external Territories
23
(7) Part 2 of the Regulatory Powers Act, as it applies in relation to the
24
provision mentioned in subsection (1) and the information
25
mentioned in subsection (2), extends to the external Territories
26
other than the Territory of Ashmore and Cartier Islands.
27
74C Modifications of Part 2 of the Regulatory Powers Act
28
(1) This section applies in relation to Part 2 of the Regulatory Powers
29
Act as that Part applies in relation to the following:
30
(a) the provision mentioned in subsection 74B(1) of this Act;
31
(b) the information mentioned in subsection 74B(2) of this Act.
32
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Consent
1
(2) Before obtaining the consent of an occupier of premises who is an
2
approved provider for the purposes of paragraph 18(2)(a) of the
3
Regulatory Powers Act, an authorised officer must inform the
4
occupier that the occupier has a responsibility under
5
paragraph 63-1(1)(b) of the Aged Care Act to cooperate with a
6
person who is performing functions, or exercising powers, under
7
Part 2 of the Regulatory Powers Act.
8
Note:
See section 25 of the Regulatory Powers Act for additional rules about
9
consent.
10
Securing electronic equipment etc.
11
(3) Sections 21, 22 and 33 of the Regulatory Powers Act are taken to
12
apply as if:
13
(a) a reference to "24 hours" in sections 21 and 22 of that Act
14
were a reference to "48 hours"; and
15
(b) a reference to a "24-hour period" in sections 21 and 22 of
16
that Act were a reference to a "48-hour period".
17
Asking questions and seeking production of documents
18
(4) The second reference to the occupier of premises in
19
subsection 24(2) of the Regulatory Powers Act is taken to include a
20
reference to any other person on the premises.
21
(5) Before requesting a person who is an approved provider to answer
22
a question, or produce a document, under subsection 24(2) of the
23
Regulatory Powers Act, an authorised officer must inform the
24
person that the person has a responsibility under
25
paragraph 63-1(1)(b) of the Aged Care Act to cooperate with a
26
person who is performing functions, or exercising powers, under
27
Part 2 of the Regulatory Powers Act.
28
(6) If an authorised officer requests a person to answer a question, or
29
produce a document, under subsection 24(2) of the Regulatory
30
Powers Act, the person is not required to comply with the request.
31
Responsibilities of approved providers etc.
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2019
71
74D Investigation powers
1
Provisions subject to investigation
2
(1) A provision is subject to investigation under Part 3 of the
3
Regulatory Powers Act if it is:
4
(a) an offence against this Act or the Aged Care Act; or
5
(b) an offence against the
Crimes Act 1914
or the
Criminal Code
6
that relates to this Act or the Aged Care Act.
7
Note:
Part 3 of the Regulatory Powers Act creates a framework for
8
investigating whether a provision has been contravened. It includes
9
powers of entry, search and seizure.
10
Authorised applicant, authorised person, issuing officer, relevant
11
chief executive and relevant court
12
(2) For the purposes of Part 3 of the Regulatory Powers Act as it
13
applies in relation to evidential material that relates to a provision
14
mentioned in subsection (1):
15
(a) an authorised officer is an authorised applicant; and
16
(b) an authorised officer is an authorised person; and
17
(c) a magistrate is an issuing officer; and
18
(d) the Commissioner is the relevant chief executive; and
19
(e) each of the following is a relevant court:
20
(i) the Federal Court;
21
(ii) the Federal Circuit Court;
22
(iii) a court of a State or Territory that has jurisdiction in
23
relation to matters arising under this Act, the Aged Care
24
Act or the
Aged Care (Transitional Provisions) Act
25
1997
.
26
Persons assisting
27
(3) An authorised officer may be assisted by other persons in
28
exercising powers or performing functions under Part 3 of the
29
Regulatory Powers Act in relation to evidential material that relates
30
to a provision mentioned in subsection (1).
31
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Use of force in executing warrant
1
(4) In executing a warrant issued under Part 3 of the Regulatory
2
Powers Act, as it applies in relation to evidential material that
3
relates to a provision mentioned in subsection (1):
4
(a) an authorised officer may use such force against things as is
5
necessary and reasonable in the circumstances; and
6
(b) a person assisting the officer may use such force against
7
things as is necessary and reasonable in the circumstances.
8
Extension to external Territories
9
(5) Part 3 of the Regulatory Powers Act, as it applies in relation to a
10
provision mentioned in subsection (1), extends to the external
11
Territories other than the Territory of Ashmore and Cartier Islands.
12
74E Modifications of Part 3 of the Regulatory Powers Act
13
(1) This section applies in relation to Part 3 of the Regulatory Powers
14
Act as that Part applies in relation to evidential material that relates
15
to a provision mentioned in subsection 74D(1) of this Act.
16
Securing electronic equipment etc.
17
(2) Sections 51 and 74 of the Regulatory Powers Act are taken to
18
apply as if:
19
(a) a reference to "24 hours" in section 51 of that Act were a
20
reference to "48 hours"; and
21
(b) a reference to a "24-hour period" in section 51 of that Act
22
were a reference to a "48-hour period".
23
Asking questions and seeking production of documents
24
(3) The second reference to the occupier of premises in
25
subsection 54(2) of the Regulatory Powers Act is taken to include a
26
reference to any other person on the premises.
27
(4) Before requesting a person who is an approved provider to answer
28
a question, or produce a document, under subsection 54(2) of the
29
Regulatory Powers Act, an authorised officer must inform the
30
person that the person has a responsibility under
31
paragraph 63-1(1)(b) of the Aged Care Act to cooperate with a
32
Responsibilities of approved providers etc.
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2019
73
person who is performing functions, or exercising powers, under
1
Part 3 of the Regulatory Powers Act.
2
Division 3--Notice to attend to answer questions etc.
3
74F Notice to attend to answer questions etc. relevant to whether
4
aged care responsibility is being complied with
5
(1) If the Commissioner believes on reasonable grounds that a person
6
has information or documents relevant to whether an approved
7
provider, or a former approved provider, is complying with an aged
8
care responsibility of the provider or former provider, the
9
Commissioner may, by written notice, require the person to attend
10
before an authorised officer to do either or both of the following:
11
(a) to answer questions relating to that matter;
12
(b) to give such information or documents (or copies of
13
documents) as are specified in the notice.
14
Notice requirements
15
(2) If a notice is given to a person under subsection (1), the notice
16
must:
17
(a) specify the authorised officer before whom the person is
18
required to attend; and
19
(b) specify the day on which, and the time and place at which,
20
the person is required to attend.
21
(3) The day specified under paragraph (2)(b) must be at least 14 days
22
after the notice is given.
23
Circumstances in which a person is not required to comply
24
(4) A person is not required to comply with a requirement of a notice
25
given to the person under subsection (1) if the requirement does
26
not relate to the affairs of an approved provider, or former
27
approved provider, that is a corporation.
28
Offence
29
(5) A person commits an offence if:
30
(a) the person is given a notice under subsection (1); and
31
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(b) the person fails to comply with a requirement of the notice;
1
and
2
(c) the requirement relates to the affairs of an approved provider
3
or former approved provider; and
4
(d) the provider or former provider is a corporation.
5
Penalty: 30 penalty units.
6
Reasonable compensation
7
(6) A person is entitled to be paid by the Commonwealth reasonable
8
compensation for complying with a requirement of a notice given
9
to the person under subsection (1) to give copies of documents.
10
74G Attending before authorised officer to answer questions
11
(1) This section applies if:
12
(a) a person is given a notice under subsection 74F(1); and
13
(b) the notice requires the person to attend before an authorised
14
officer to answer questions; and
15
(c) the person attends before the authorised officer for that
16
purpose.
17
(2) The authorised officer may question the person on oath or
18
affirmation and may, for that purpose:
19
(a) require the person to take an oath or make an affirmation; and
20
(b) administer an oath or affirmation to the person.
21
(3) The oath or affirmation to be taken or made by the person for the
22
purposes of subsection (2) is an oath or affirmation that the
23
statements that the person will make will be true.
24
Circumstances in which a person is not required to take an oath
25
etc.
26
(4) A person is not required to comply with a requirement under
27
subsection (2) to take an oath or make an affirmation for the
28
purposes of answering questions if those questions do not relate to
29
the affairs of an approved provider, or former approved provider,
30
that is a corporation.
31
Responsibilities of approved providers etc.
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75
Note:
Approved providers have a responsibility under paragraph 63-1(1)(b)
1
of the Aged Care Act to cooperate with a person who is performing
2
functions, or exercising powers, under this Part. Failure to comply
3
with that responsibility may result in a sanction being imposed on the
4
provider under Part 7B of this Act.
5
Offence
6
(5) A person commits an offence if:
7
(a) the person is required by an authorised officer to take an oath
8
or make an affirmation for the purposes of answering
9
questions; and
10
(b) the person refuses or fails to comply with the requirement;
11
and
12
(c) the questions relate to the affairs of an approved provider or
13
former approved provider; and
14
(d) the provider or former provider is a corporation.
15
Penalty: 30 penalty units.
16
86 Section 75
17
After "such as", insert "the appointment of authorised officers,".
18
87 After section 75
19
Insert:
20
75A Appointment of authorised officers
21
(1) The Commissioner may, in writing, appoint a person who is a
22
member of the staff of the Commission as an authorised officer for
23
either or both of the following purposes:
24
(a) the purposes of this Act;
25
(b) the purposes of the rules.
26
(2) The Commissioner must not appoint a person as an authorised
27
officer under subsection (1) unless the Commissioner is satisfied
28
that the person has suitable training or experience to properly
29
perform the functions, or exercise the powers, of an authorised
30
officer.
31
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(3) An authorised officer must, in performing the officer's functions or
1
exercising the officer's powers, comply with any directions of the
2
Commissioner.
3
(4) If a direction is given under subsection (3) in writing, the direction
4
is not a legislative instrument.
5
88 Subsection 76(1)
6
After "this Act", insert "(other than Part 7B)".
7
89 Subsection 76(1) (note)
8
Repeal the note.
9
90 After subsection 76(1)
10
Insert:
11
(1A) The Commissioner may, in writing, delegate to the following all or
12
any of the Commissioner's functions or powers under Part 7B:
13
(a) a member of the staff of the Commission;
14
(b) an APS employee in the Department.
15
(1B) However, the Commissioner must not delegate a function or power
16
to a person under subsection (1) or (1A) unless the Commissioner
17
is satisfied that the person has suitable training or experience to
18
properly perform the function or exercise the power.
19
91 At end of section 76
20
Add:
21
Note:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
22
provisions relating to delegations.
23
Aged Care (Transitional Provisions) Act 1997
24
92 Subsection 42-2(1)
25
Omit "section 67A-5 of the
Aged Care Act 1997
", substitute
26
"section 63Q of the
*
Quality and Safety Commission Act".
27
93 Paragraph 57-2(1)(o)
28
Repeal the paragraph, substitute:
29
Responsibilities of approved providers etc.
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77
(o) the approved provider must not charge an accommodation
1
bond if:
2
(i) a sanction has been imposed on the approved provider
3
under section 63N of the
*
Quality and Safety
4
Commission Act; and
5
(ii) the sanction prohibits the charging of an
6
accommodation bond for the entry;
7
94 Paragraph 57A-2(1)(m)
8
Repeal the paragraph, substitute:
9
(m) the approved provider must not charge an accommodation
10
charge if:
11
(i) a sanction has been imposed on the approved provider
12
under section 63N of the
*
Quality and Safety
13
Commission Act; and
14
(ii) the sanction prohibits the charging of an
15
accommodation charge for the entry;
16
Social Security Act 1991
17
95 Subparagraphs 11A(8)(a)(i), (b)(i) and (ba)(i)
18
Omit "Part 4.4 of the
Aged Care Act 1997
", substitute "Part 7B of the
19
Aged Care Quality and Safety Commission Act 2018
".
20
Veterans' Entitlements Act 1986
21
96 Subparagraphs 5LA(8)(a)(i), (b)(i) and (ba)(i)
22
Omit "Part 4.4 of the
Aged Care Act 1997
", substitute "Part 7B of the
23
Aged Care Quality and Safety Commission Act 2018
".
24
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Schedule 3--Reconsideration and review of
1
decisions
2
3
Aged Care Act 1997
4
1 Section 85-1 (table items 1, 3, 54 and 55)
5
Repeal the items.
6
Aged Care Quality and Safety Commission Act 2018
7
2 Section 6 (paragraph (f))
8
Repeal the paragraph, substitute:
9
(f)
the education functions; and
10
(g)
the function of reconsidering and reviewing certain
11
decisions made under this Act.
12
3 Section 7
13
Insert:
14
affected person
: see section 74J.
15
internal decision reviewer
means:
16
(a) the Commissioner; or
17
(b) a delegate of the Commissioner referred to in
18
paragraph 74L(1)(b) or 74M(1)(b).
19
reconsideration decision
means a decision made under
20
subsection 74L(2) or 74M(3).
21
reviewable decision
: see section 74J.
22
4 Section 14 (paragraph (f))
23
Repeal the paragraph, substitute:
24
(f)
the education functions; and
25
(g)
reconsidering and reviewing certain decisions made
26
under this Act.
27
Reconsideration and review of decisions
Schedule 3
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79
5 After paragraph 16(1)(f)
1
Insert:
2
(fa) to reconsider and review certain decisions made under this
3
Act;
4
6 Before Part 9
5
Insert:
6
Part 8B--Reconsideration and review of decisions
7
Division 1--Introduction
8
74H Simplified outline of this Part
9
This Part deals with the reconsideration and review of certain
10
decisions made under this Act.
11
Division 2--Reconsideration and review of decisions
12
74J Reviewable decisions and affected persons
13
A decision by the Commissioner referred to in column 1 of an item
14
of the following table is a
reviewable decision
. A person or body
15
referred to in column 2 of the item is the
affected person
for the
16
decision.
17
18
Reviewable decisions and affected persons
Item
Column 1
Decision
Column 2
Affected person
1
A decision under section 63D not to approve a
person or body as a provider of aged care
The person or body
2
A decision under section 63H not to revoke the
approval of an approved provider
The approved provider
3
A decision under section 63J to revoke the
approval of a person or body as a provider of
aged care
A person whose interests
are affected by the
decision
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2019
No. , 2019
Reviewable decisions and affected persons
Item
Column 1
Decision
Column 2
Affected person
4
A decision under section 63N to impose a
sanction on a person or body
A person whose interests
are affected by the
decision
5
A decision under section 63X not to lift a
sanction imposed on an approved provider
under section 63N
A person whose interests
are affected by the
decision
1
74K Affected person may request reconsideration of reviewable
2
decision
3
(1) An affected person for a reviewable decision may request the
4
Commissioner to reconsider the decision.
5
(2) The request must:
6
(a) be made in writing; and
7
(b) set out the reasons for the request; and
8
(c) be given to the Commissioner within 14
days after the
9
affected person is notified of the reviewable decision.
10
74L Reconsideration of reviewable decision on request
11
(1) If a request is made under section 74K by an affected person for a
12
reviewable decision, the Commissioner must:
13
(a) personally reconsider the decision; or
14
(b) cause the decision to be reconsidered by a delegate of the
15
Commissioner who:
16
(i) was not involved in making the decision; and
17
(ii) occupies a position that is at least the same level as that
18
occupied by the person who made the decision.
19
(2) After reconsidering the reviewable decision, the internal decision
20
reviewer must:
21
(a) affirm the decision; or
22
(b) vary the decision; or
23
Reconsideration and review of decisions
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81
(c) set the decision aside and substitute a new decision.
1
(3) After the internal decision reviewer makes the reconsideration
2
decision, the reviewer must give written notice of the following to
3
the affected person for the reviewable decision:
4
(a) the reconsideration decision;
5
(b) the date that decision takes effect;
6
(c) the reason for that decision.
7
Note:
Section 27A of the
Administrative Appeals Tribunal Act 1975
requires
8
the affected person to be notified of the person's review rights.
9
(4) The internal decision reviewer is taken to have affirmed the
10
reviewable decision if the reviewer does not give notice of the
11
reconsideration decision to the affected person within 90 days after
12
receiving the person's request.
13
(5) The reconsideration decision is taken to have been made under the
14
provision under which the reviewable decision was made other
15
than for the purposes of section 74J.
16
(6) The Commissioner must, as soon as is practicable, give the
17
Secretary a copy of a notice given under subsection (3).
18
74M Reconsideration of reviewable decision on own initiative of
19
Commissioner etc.
20
(1) Either of the following persons may reconsider a reviewable
21
decision if satisfied that there is sufficient reason to do so:
22
(a) the Commissioner personally;
23
(b) a delegate of the Commissioner who:
24
(i) was not involved in making the decision; and
25
(ii) occupies a position that is at least the same level as that
26
occupied by the person who made the decision.
27
(2) If an internal decision reviewer decides under subsection (1) to
28
reconsider a reviewable decision, the internal decision reviewer
29
must give written notice to the affected person for the decision that
30
the decision is to be reconsidered.
31
(3) After reconsidering the reviewable decision, the internal decision
32
reviewer must:
33
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No. , 2019
(a) affirm the decision; or
1
(b) vary the decision; or
2
(c) set the decision aside and substitute a new decision.
3
(4) After the internal decision reviewer makes the reconsideration
4
decision, the reviewer must, within 90 days after the
5
commencement of the reconsideration, give written notice of the
6
following to the affected person for the reviewable decision:
7
(a) the reconsideration decision;
8
(b) the date that decision takes effect;
9
(c) the reason for that decision.
10
Note:
Section 27A of the
Administrative Appeals Tribunal Act 1975
requires
11
the affected person to be notified of the person's review rights.
12
(5) The reconsideration decision is taken to have been made under the
13
provision under which the reviewable decision was made other
14
than for the purposes of section 74J.
15
(6) The Commissioner must, as soon as is practicable, give the
16
Secretary a copy of a notice given under subsection (4).
17
74N Review by the Administrative Appeals Tribunal
18
Applications may be made to the Administrative Appeals Tribunal
19
for review of a reconsideration decision of an internal decision
20
reviewer.
21
Transitional, application, saving and other provisions
Schedule 4
Introduction
Part 1
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
83
Schedule 4--Transitional, application, saving
1
and other provisions
2
Part 1--Introduction
3
1 Definitions
4
In this Schedule:
5
Aged Care Act
means the
Aged Care Act 1997
.
6
Aged Care (TP) Act
means the
Aged Care (Transitional Provisions) Act
7
1997
.
8
Commission
means the Aged Care Quality and Safety Commission.
9
Commission Act
means the
Aged Care Quality and Safety Commission
10
Act 2018
.
11
Commissioner
means the Commissioner of the Commission.
12
Regulatory Powers Act
means the
Regulatory Powers (Standard
13
Provisions) Act 2014
.
14
sanction notice
means a notice given under section 67-5 of the Aged
15
Care Act.
16
transferred function
means any of the following functions or powers:
17
(a) a function or power relating to the approval of a provider of
18
aged care under Division 8 of the Aged Care Act;
19
(b) a function or power relating to the revocation of the approval
20
of a provider of aged care under Division 10 of that Act;
21
(c) a function or power relating to a reportable assault within the
22
meaning of subsection 63-1AA(9) of that Act;
23
(d) a function or power relating to the imposition of a sanction
24
on an approved provider for non-compliance with the
25
provider's responsibilities under Part 4.1, 4.2 or 4.3 of that
26
Act;
27
(e) a function or power relating to the reconsideration or review
28
of a reviewable decision of a kind mentioned in item 1, 3, 54
29
or 55 of the table in section 85-1 of that Act;
30
(f) a function performed, or a power exercised, under Part 6.4 of
31
that Act to the extent that:
32
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Introduction
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No. , 2019
(i) the function was performed, or the power was exercised,
1
for the purpose of assessing whether an approved
2
provider is complying with the provider's
3
responsibilities under Part 4.1, 4.2 or 4.3 of that Act; or
4
(ii) the function or power relates to a warrant issued under
5
section 92-3 of that Act;
6
(g) any other function or power specified in the transition rules.
7
transition rules
means rules made under item 36 of this Schedule.
8
transition time
means the commencement of this Schedule.
9
Transitional, application, saving and other provisions
Schedule 4
Approval of providers of aged care
Part 2
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
85
Part 2--Approval of providers of aged care
1
2 Saving of approval of approved providers
2
(1)
This item applies if:
3
(a) before the transition time, a person or body (the
entity
) was
4
an approved provider within the meaning of the Aged Care
5
Act; and
6
(b) immediately before that time, the entity's approval is in
7
effect and either:
8
(i) the entity is conducting an aged care service; or
9
(ii) the entity is an entity of a kind specified in the
10
transitional rules.
11
(2)
Despite the repeal of Division 8 of the Aged Care Act by Schedule 1 to
12
this Act, the entity is taken, after the transition time, to be an approved
13
provider within the meaning of the Commission Act.
14
3 Pending applications for approval as provider of aged care
15
(1)
This item applies in relation to an application made under
16
subsection 8-2(1) of the Aged Care Act if:
17
(a) the application was made before the transition time; and
18
(b) immediately before that time, the Secretary has not made a
19
decision on the application.
20
(2)
The application is taken, after the transition time, to have been made to
21
the Commissioner under subsection 63B(1) of the Commission Act and
22
may be dealt with, or may continue to be dealt with, under Part 7A of
23
that Act.
24
(3)
If paragraph 8-6(3)(a) of the Aged Care Act applied in relation to the
25
application, then, after the transition time, paragraph 63F(3)(d) of the
26
Commission Act is taken to apply in relation to the application.
27
(4)
If, before the transition time, a thing was done in relation to the
28
application by the Secretary under, or for the purposes of, Division 8 of
29
the Aged Care Act, then the thing has effect, after that time, as if it had
30
been done by the Commissioner under, or for the purposes of, Part 7A
31
of the Commission Act.
32
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Transitional, application, saving and other provisions
Part 2
Approval of providers of aged care
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
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No. , 2019
4 Saving of notices requiring further information in relation
1
to approval applications
2
(1)
This item applies in relation to a notice given by the Secretary under
3
subsection 8-4(1) of the Aged Care Act requiring a person to give
4
information to the Secretary if:
5
(a) the notice was given before the transition time; and
6
(b) immediately before that time, the period for giving the
7
information has not ended.
8
(2)
Despite the repeal of section 8-4 of the Aged Care Act by Schedule 1 to
9
this Act, the notice continues to have effect, after the transition time, as
10
if:
11
(a) it were a notice given by the Commissioner under
12
subsection 63C(1) of the Commission Act; and
13
(b) the requirement to give information to the Secretary were a
14
requirement to give information to the Commissioner.
15
5 Saving of notices requesting further information from
16
approved providers
17
(1)
This item applies in relation to a notice given by the Secretary under
18
subsection 9-2(1) of the Aged Care Act requesting an approved provider
19
to give information to the Secretary if:
20
(a) the notice was given before the transition time; and
21
(b) immediately before that time, the period for giving the
22
information has not ended.
23
(2)
Despite the amendments of subsection 9-2(1) of the Aged Care Act
24
made by Schedule 1 to this Act, the notice continues to have effect,
25
after the transition time, as if:
26
(a) it were a notice given by the Commissioner under that
27
subsection, as amended by Schedule 1 to this Act; and
28
(b) the request to give information to the Secretary were a
29
request to give information to the Commissioner.
30
Transitional, application, saving and other provisions
Schedule 4
Approval of providers of aged care
Part 2
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
87
6 Saving of notices inviting submissions in relation to
1
revocation of approval
2
(1)
This item applies in relation to a notice given by the Secretary under
3
subsection 10-3(3) of the Aged Care Act inviting a person to make
4
submissions to the Secretary if:
5
(a) the notice was given before the transition time; and
6
(b) immediately before that time, the period for making those
7
submissions has not ended.
8
(2)
Despite the repeal of section 10-3 of the Aged Care Act by Schedule 1
9
to this Act, the notice continues to have effect, after the transition time,
10
as if:
11
(a) it were a notice given by the Commissioner under
12
subsection 63K(1) of the Commission Act; and
13
(b) the invitation to make submissions to the Secretary were an
14
invitation to make submissions to the Commissioner.
15
7 Saving of notices relating to revocation of approval as a
16
provider of aged care
17
(1)
This item applies in relation to a notice of the following kind if,
18
immediately before the transition time, the notice has not taken effect:
19
(a) a notice (the
decision notice
) given by the Secretary under
20
subsection 10-3(5) of the Aged Care Act that notifies a
21
person of the Secretary's decision (the
revocation decision
)
22
to revoke, under subsection 10-3(1) of that Act, the person's
23
approval as a provider of aged care;
24
(b) a notice (the
limitation notice
) given by the Secretary to that
25
person under paragraph 10-3(7)(a) of that Act;
26
(c) a notice (the
revocation notice
) given by the Secretary to that
27
person under paragraph 10-3(7)(b) of that Act.
28
(2)
Despite the repeal of section 10-3 of the Aged Care Act by Schedule 1
29
to this Act:
30
(a) the decision notice continues to have effect, after the
31
transition time, as if it were a notice given by the
32
Commissioner under subsection 63L(1) of the Commission
33
Act; and
34
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Approval of providers of aged care
88
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(b) the limitation notice continues to have effect, after that time,
1
as if it were a notice given by the Commissioner under
2
subsection 63L(5) of the Commission Act; and
3
(c) the revocation notice continues to have effect, after that time,
4
as if it were a notice given by the Commissioner under
5
subsection 63L(2) of the Commission Act.
6
(3)
Section 63L of the Commission Act applies, after the transition time, in
7
relation to the revocation decision, as if it were a decision of the
8
Commissioner to revoke, under section 63J of that Act, the person's
9
approval as a provider of aged care.
10
Transitional, application, saving and other provisions
Schedule 4
Responsibilities of approved providers etc.
Part 3
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
89
Part 3--Responsibilities of approved providers etc.
1
Division 1
--Transitional etc. provisions relating to the
2
imposition of sanctions on approved providers
3
8 Sanctions imposed on approved providers that have not
4
come into effect immediately before transition time etc.
5
(1)
This item applies in relation to a sanction imposed on an approved
6
provider under Part 4.4 of the Aged Care Act if:
7
(a) the sanction was imposed before the transition time; and
8
(b) immediately before that time, either of the following apply:
9
(i) the sanction has not come into effect in accordance with
10
the sanction notice given in relation to the sanction;
11
(ii) the sanction period for the sanction specified in the
12
sanction notice given in relation to the sanction has
13
started but not ended.
14
(2)
Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to
15
this Act:
16
(a) the sanction is taken, after the transition time, to have been
17
imposed under section 63N of the Commission Act; and
18
(b) the sanction notice continues to have effect, after that time, as
19
if it were a notice given under that section; and
20
(c) if the approved provider agreed, before that time, to do one or
21
more things specified in the sanction notice for the purposes
22
of section 66-2 of the Aged Care Act--the agreement
23
continues to have effect, after that time, as if it were an
24
agreement made for the purposes of section 63U of the
25
Commission Act; and
26
(d) if the approved provider agrees, after that time, to do one or
27
more things specified in the sanction notice for the purposes
28
of section 66-2 of the Aged Care Act--the agreement is
29
taken to have been made for the purposes of section 63U of
30
the Commission Act.
31
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Responsibilities of approved providers etc.
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
9 Imposition of sanctions on approved providers still under
1
consideration by Secretary at transition time
2
(1)
This item applies if:
3
(a) before the transition time, the Secretary was considering
4
whether to impose a sanction on an approved provider under
5
Part 4.4 of the Aged Care Act; and
6
(b) before that time, the Secretary complied with the
7
requirements of Division 67 of that Act in relation to the
8
imposition of the sanction on the provider; and
9
(c) immediately before that time, the Secretary is still
10
considering whether to impose the sanction on the provider.
11
(2)
After the transition time, the Commissioner may decide to impose a
12
sanction on the approved provider under section 63N of the
13
Commission Act.
14
(3)
In deciding whether to impose a sanction on the approved provider
15
under section 63N of the Commission Act, the Commissioner may:
16
(a) consider any relevant thing done before the transition time
17
by, or in relation to, the Secretary under or for the purposes
18
of Part 4.4 of the Aged Care Act; and
19
(b) may disregard Division 3 of Part 7B of the Commission Act
20
if the Commissioner considers it is reasonable to do so in the
21
circumstances.
22
10 Dealing with certain pre-transition notices of
23
non-compliance
24
(1)
This item applies if:
25
(a) before the transition time, the Secretary gave a notice under
26
subsection 67-2(1) of the Aged Care Act relating to an
27
approved provider's non-compliance with one or more of the
28
provider's responsibilities under Part 4.1, 4.2 or 4.3 of that
29
Act; and
30
(b) before that time, the approved provider made submissions to
31
the Secretary in accordance with the notice and the Secretary
32
considered that the submissions:
33
(i) proposed appropriate action to remedy the
34
non-compliance; or
35
Transitional, application, saving and other provisions
Schedule 4
Responsibilities of approved providers etc.
Part 3
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
91
(ii) set out an acceptable reason for the non-compliance; or
1
(iii) were otherwise satisfactory; and
2
(c) immediately before that time, the Secretary has not given the
3
approved provider a notice under subsection 67-4(1) of that
4
Act in relation to the non-compliance.
5
(2)
After the transition time:
6
(a) the notice is taken, for the purposes of Part 7B of the
7
Commission Act, to be a non-compliance notice within the
8
meaning of that Act; and
9
(b) the Commissioner may decide to give the approved provider
10
a notice under section 63T of that Act in relation to the
11
non-compliance.
12
11 Saving of notices of intention to impose sanctions
13
(1)
This item applies in relation to a notice given by the Secretary under
14
subsection 67-3(1) of the Aged Care Act inviting an approved provider
15
to make submissions to the Secretary if:
16
(a) the notice was given before the transition time; and
17
(b) immediately before that time, the period for making the
18
submissions has not ended.
19
(2)
Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to
20
this Act, the notice continues to have effect, after the transition time, as
21
if:
22
(a) it were a notice given by the Commissioner under
23
subsection 63S(2) of the Commission Act; and
24
(b) the invitation to make submissions to the Secretary were an
25
invitation to make submissions to the Commissioner.
26
12 Saving of notices to remedy non-compliance
27
(1)
This item applies in relation to a notice given by the Secretary to an
28
approved provider under subsection 67-4(1) of the Aged Care Act if:
29
(a) the notice was given before the transition time; and
30
(b) immediately before that time, the period for giving the
31
undertaking required by the notice to the Secretary has not
32
ended.
33
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Responsibilities of approved providers etc.
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Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
No. , 2019
(2)
Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to
1
this Act, the notice continues to have effect, after the transition time, as
2
if:
3
(a) it were a notice given by the Commissioner under
4
subsection 63T(2) of the Commission Act; and
5
(b) the requirement to give the required undertaking to the
6
Secretary were a requirement to give the required
7
undertaking to the Commissioner; and
8
(c) if the approved provider gives the required undertaking after
9
the transition time--the undertaking is taken to have been
10
given for the purposes of section 63T of the Commission Act.
11
13 Continued effect of undertaking given by approved
12
provider to remedy non-compliance
13
(1)
This item applies in relation to an undertaking given by an approved
14
provider for the purposes of section 67-4 of the Aged Care Act before
15
the transition time.
16
(2)
Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to
17
this Act, the undertaking continues to have effect, after the transition
18
time, as if it were an undertaking given for the purposes of section 63T
19
of the Commission Act.
20
(3)
The transition rules may provide that subitem (2) does not apply in
21
relation to a specified undertaking.
22
14 Pending applications for lifting of sanctions imposed on
23
approved providers
24
(1)
This item applies in relation to an application made under section 68-4
25
of the Aged Care Act if:
26
(a) the application was made before the transition time; and
27
(b) immediately before that time, the Secretary has not made a
28
decision on the application.
29
(2)
The application is taken, after the transition time, to have been made to
30
the Commissioner under section 63V of the Commission Act and may
31
be dealt with, or may continue to be dealt with, under Division 4 of
32
Part 7B of that Act.
33
Transitional, application, saving and other provisions
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Responsibilities of approved providers etc.
Part 3
No. , 2019
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2019
93
(3)
If, before the transition time, a thing was done in relation to the
1
application by the Secretary under, or for the purposes of, Division 68
2
of the Aged Care Act, then the thing has effect, after that time, as if it
3
had been done by the Commissioner under, or for the purposes of,
4
Division 4 of Part 7B of the Commission Act.
5
15 Saving of notices requiring further information in relation
6
to application to lift sanctions
7
(1)
This item applies in relation to a notice given by the Secretary under
8
subsection 68-5(1) of the Aged Care Act requiring a person to give
9
information to the Secretary if:
10
(a) the notice was given before the transition time; and
11
(b) immediately before that time, the period for giving the
12
information has not ended.
13
(2)
Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to
14
this Act, the notice continues to have effect, after the transition time, as
15
if:
16
(a) it were a notice given by the Commissioner under
17
subsection 63W(1) of the Commission Act; and
18
(b) the requirement to give information to the Secretary were a
19
requirement to give information to the Commissioner.
20
16 Application
--Part 7B of the Commission Act
21
Part 7B of the Commission Act, as inserted by Schedule 2 to this Act,
22
applies in relation to a failure of an approved provider to comply with
23
an aged care responsibility, whether that failure occurs before, at or
24
after the transition time.
25
Division 2
--Application provisions relating to Part 6.4 of
26
the Aged Care Act
27
17 Application
--power to enter premises and exercise search
28
powers in relation to certain applications and grants
29
Section 91-1 of the Aged Care Act, as inserted by Schedule 2 to this
30
Act, applies in relation to the following, whether made before, at or
31
after the transition time:
32
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No. , 2019
(a) an application under the Aged Care Act or the Aged Care
1
(TP) Act;
2
(b) a grant under Chapter 5 of the Aged Care Act.
3
18 Application
--monitoring powers
4
(1)
Subsection 92-1(1) of the Aged Care Act, as inserted by Schedule 2 to
5
this Act, applies in relation to the following, whether made before, at or
6
after the transition time:
7
(a) an appraisal under section 25-3 of the Aged Care Act;
8
(b) a reappraisal under sections 27-3 and 27-5 of the Aged Care
9
Act.
10
(2)
Subsection 92-1(2) of the Aged Care Act, as inserted by Schedule 2 to
11
this Act, applies in relation to information given before, at or after the
12
transition time.
13
19 Application
--investigation powers
14
Subsection 92-3(1) of the Aged Care Act, as inserted by Schedule 2 to
15
this Act, applies in relation to a contravention of a provision that occurs
16
before, at or after the transition time.
17
20 Application
--notices to attend to answer questions etc.
18
Subsection 93-1(1) of the Aged Care Act, as inserted by Schedule 2 to
19
this Act, applies in relation to the following, whether made before, at or
20
after the transition time:
21
(a) an application under the Aged Care Act or the Aged Care
22
(TP) Act;
23
(b) an appraisal under section 25-3 of the Aged Care Act;
24
(c) a reappraisal under sections 27-3 and 27-5 of the Aged Care
25
Act;
26
(d) a claim for payment of subsidy under Chapter 3 of the Aged
27
Care Act or Chapter 3 of the Aged Care (TP) Act;
28
(e) a grant under Chapter 5 of the Aged Care Act.
29
21 Saving of appointment of certain authorised officers
30
(1)
This item applies to a person if:
31
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2019
95
(a) immediately before the transition time, the person was
1
appointed under section 90-3 of the Aged Care Act as an
2
authorised officer; and
3
(b) immediately after that time, the person continues to be an
4
APS employee in the Department.
5
(2)
The person is taken, after that time, to have been appointed under
6
subsection 94-2(1) of the Aged Care Act as an authorised officer for the
7
purposes referred to in that subsection.
8
Division 3
--Application etc. provisions relating to Parts 8
9
and 8A of the Commission Act
10
22 Application
--monitoring powers
11
(1)
Subsection 74B(1) of the Commission Act, as inserted by Schedule 2 to
12
this Act, applies in relation to conduct that occurs before, at or after the
13
transition time.
14
(2)
Subsection 74B(2) of the Commission Act, as inserted by Schedule 2 to
15
this Act, applies in relation to information given before, at or after the
16
transition time.
17
23 Application
--investigation powers
18
Subsection 74D(1) of the Commission Act, as inserted by Schedule 2 to
19
this Act, applies in relation to a contravention of a provision that occurs
20
before, at or after the transition time.
21
24 Saving of appointment of authorised complaints officers
22
(1)
This item applies to a person who was, immediately before the
23
transition time, appointed under subsection 73(1) of the Commission
24
Act as an authorised complaints officer.
25
(2)
The person is taken, after the transition time, to have been appointed
26
under subsection 75A(1) of the Commission Act as an authorised
27
officer for the purposes referred to in that subsection.
28
(3)
An identity card issued to the person under subsection 74(1) of the
29
Commission Act before the transition time is taken, after that time, to
30
have been issued under section 35 or 76 of the Regulatory Powers Act.
31
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25 Saving of appointment of certain authorised officers
1
(1)
This item applies to a person if:
2
(a) immediately before the transition time, the person was
3
appointed under section 90-3 of the Aged Care Act as an
4
authorised officer; and
5
(b) immediately after that time, the person becomes a member of
6
the staff of the Commission.
7
(2)
The person is taken, after that time, to have been appointed under
8
subsection 75A(1) of the Commission Act as an authorised officer for
9
the purposes referred to in that subsection.
10
26 Saving of identity cards issued to quality assessors
11
An identity card issued to a quality assessor under subsection 74(1) of
12
the Commission Act before the transition time is taken, after that time,
13
to have been issued under that subsection, as amended by Schedule 2 to
14
this Act.
15
Division 4
--Other matters
16
27 Application
--suspending approved providers from
17
making appraisals and reappraisals
18
Paragraph 25-4(1)(a) of the Aged Care Act, as substituted by
19
Schedule 2 to this Act, applies in relation to an appraisal or reappraisal
20
made before, at or after the transition time.
21
28 Transitional
--annual report
22
Despite the repeal of paragraph 63-2(2)(g) of the Aged Care Act by
23
Schedule 2 to this Act, that paragraph continues to apply, after the
24
transition time, in relation to the report for the year ending on 30 June
25
2020 as if that repeal had not happened.
26
Transitional, application, saving and other provisions
Schedule 4
Reconsideration and review of decisions
Part 4
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
97
Part 4--Reconsideration and review of decisions
1
29 Request for reconsideration of pre-transition decisions
2
relating to approval etc.
3
(1)
This item applies in relation to a decision of a kind mentioned in item 1,
4
3, 54 or 55 of the table in section 85-1 of the Aged Care Act if:
5
(a) the decision was made before the transition time; and
6
(b) immediately before that time, the period (the
reconsideration
7
period
) referred to in subparagraph 85-5(3)(a)(i) of that Act
8
during which a person (the
relevant person
) may make a
9
request for the reconsideration of the decision has not ended.
10
(2)
Sections 74K and 74L of the Commission Act apply, after the transition
11
time, in relation to the decision as if:
12
(a) the decision were a reviewable decision of the same kind;
13
and
14
(b) the relevant person were the affected person for the
15
reviewable decision; and
16
(c) paragraph 74K(2)(c) of that Act were replaced with the
17
following paragraph:
18
"(c) be given to the Commissioner before the end of the
19
reconsideration period.".
20
30 Pending requests for reconsideration of pre-transition
21
decisions relating to approval etc.
22
(1)
This item applies in relation to a request (the
pending request
) made
23
under subsection 85-5(1) of the Aged Care Act for the reconsideration
24
of a decision (the
original decision
) of a kind mentioned in item 1, 3, 54
25
or 55 of the table in section 85-1 of that Act if:
26
(a) the pending request was made before the transition time; and
27
(b) immediately before that time, the Secretary has not made a
28
decision on the pending request.
29
(2)
The pending request is taken, after the transition time, to be a request
30
made to the Commissioner under section 74K of the Commission Act
31
and may be dealt with, or may continue to be dealt with, under Part 8B
32
of that Act as if:
33
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Reconsideration and review of decisions
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No. , 2019
(a) the original decision were a reviewable decision of the same
1
kind; and
2
(b) the person who made the request were the affected person for
3
the reviewable decision.
4
(3)
If, before the transition time, a thing was done by the Secretary in
5
relation to the pending request, then the thing has effect, after that time,
6
as if it had been done by the Commissioner.
7
31 Reconsideration of pre-transition decisions relating to
8
approval etc.
at the Commissioner's own initiative
9
(1)
This item applies if a decision of a kind mentioned in item 1, 3, 54 or 55
10
of the table in section 85-1 of the Aged Care Act is made before the
11
transition time.
12
(2)
Section 74M of the Commission Act applies, after the transition time, in
13
relation to the decision as if:
14
(a) the decision were a reviewable decision of the same kind;
15
and
16
(b) the person to whom the decision relates were the affected
17
person for the reviewable decision.
18
32 Review by the Administrative Appeals Tribunal of certain
19
pre-transition decisions
20
(1)
This item applies to a decision made by the Secretary under
21
subsection 85-4(4) or 85-5(5) of the Aged Care Act if:
22
(a) the decision was made before the transition time; and
23
(b) immediately before that time, both of the following apply:
24
(i) an application for review of the decision by the
25
Administrative Appeals Tribunal has not been made;
26
(ii) the time for a person to make such an application has
27
not ended (including any extensions of that time under
28
section 29 of the
Administrative Appeals Tribunal Act
29
1975
).
30
(2)
Section 74N of the Commission Act applies, after the transition time, in
31
relation to the decision as if it were a reconsideration decision of the
32
Commissioner.
33
Transitional, application, saving and other provisions
Schedule 4
Provisions relating to transferred functions
Part 5
No. , 2019
Aged Care Legislation Amendment (New Commissioner Functions) Bill
2019
99
Part 5--Provisions relating to transferred functions
1
33 Transfer of records
2
(1)
This item applies to any records or documents that:
3
(a) relate to a transferred function; and
4
(b) immediately before the transition time, were in the
5
possession of the:
6
(i) the Secretary; or
7
(ii) an APS employee in the Department; or
8
(iii) an authorised officer within the meaning of section 90-3
9
of the Aged Care Act; or
10
(iv) a delegate or subdelegate of the Secretary.
11
(2)
The records and documents are to be transferred to the Commissioner
12
after the transition time.
13
34 Protected information
14
(1)
This item applies to information that:
15
(a) relates to a transferred function; and
16
(b) immediately before the transition time, was protected
17
information within the meaning of section 86-1 of the Aged
18
Care Act.
19
(2)
For the purposes of the Commission Act, the information is taken, after
20
the transition time, to be protected information within the meaning of
21
that Act.
22
35 Legal proceedings
23
If:
24
(a) the Secretary is a party to proceedings in any court or
25
tribunal; and
26
(b) the proceedings relate to a transferred function; and
27
(c) immediately before the transition time, the proceedings are
28
still pending;
29
the Commissioner is substituted for the Secretary, from that time, as a
30
party to those proceedings.
31
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Transitional, application, saving and other provisions
Part 6
Rules
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2019
No. , 2019
Part 6--Rules
1
36 Rules
2
(1)
The Minister may, by legislative instrument, make rules prescribing
3
matters:
4
(a) required or permitted by this Schedule to be prescribed by the
5
rules; or
6
(b) necessary or convenient to be prescribed for carrying out or
7
giving effect to this Schedule.
8
(2)
Without limiting subitem (1), the rules may prescribe matters of a
9
transitional nature (including prescribing any saving or application
10
provisions) relating to the amendments or repeals made by this Act.
11
(3)
To avoid doubt, the rules may not do the following:
12
(a) create an offence or civil penalty;
13
(b) provide powers of:
14
(i) arrest or detention; or
15
(ii) entry, search or seizure;
16
(c) impose a tax;
17
(d) set an amount to be appropriated from the Consolidated
18
Revenue Fund under an appropriation in this Act;
19
(e) directly amend the text of this Act.
20
(4)
This Schedule (other than subitem (3)) does not limit the rules that may
21
be made for the purposes of subitems (1) and (2).
22