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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AGED CARE LEGISLATION AMENDMENT
(NEW COMMISSIONER FUNCTIONS) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Aged Care and Senior Australians,
Senator the Hon Richard Colbeck)
AGED CARE LEGISLATION AMENDMENT
(NEW COMMISSIONER FUNCTIONS) BILL 2019
OUTLINE
The purpose of the Aged Care Legislation Amendment (New Commissioner
Functions) Bill 2019 (the Bill) is to transfer additional aged care regulatory functions
of the Secretary of the Department of Health to the Aged Care Quality and Safety
Commissioner (Commissioner). This reform completes the two-year agenda to
strengthen and enhance aged care regulation to protect and assure the quality of care
provided to consumers of Australian Government funded aged care. It delivers on the
intention as set out in the objects of the Aged Care Quality and Safety Commission
Act 2018 (Quality and Safety Commission Act).
The Aged Care Quality and Safety Commission (Commission) will be the primary
point of contact for providers and consumers in relation to quality of care and
regulation. The provisions of this Bill will provide the Commission with the range of
regulatory functions and powers required to oversee the provision of care by approved
providers, from their entry to their exit (if required) from the regulatory system.
Centralising these regulatory functions and powers within a single regulator will
address the fragmentation and silos identified in the Review of National Aged Care
Quality Regulatory Processes.
The Commission will approve providers for the delivery of residential aged care
services, home care services and flexible care services. The Commission will be able
to undertake compliance and enforcement actions, including monitoring the
compliance of approved providers and imposing sanctions where approved providers
do not meet their aged care responsibilities. Amendments in the Bill streamline the
process for the Commissioner to impose sanctions on an approved provider that is not
compliant with its responsibilities. The Commission will administer the responsibility
of approved providers to make compulsory reports of assaults.
These additional functions build on the Commission's existing functions and powers
relating to complaints resolution and the accreditation, quality review and monitoring
of aged care services under the Quality and Safety Commission Act and the Aged
Care Quality and Safety Commission Rules. This ensures that the Commission can
fulfil the object of the Quality and Safety Commission Act to protect and enhance the
safety, health, well-being and quality of life of aged care consumers; promote
confidence and trust in the provision of aged care; and promote engagement with aged
care consumers about the quality of care and services.
Financial Impact Statement
This Bill has no financial impact.
1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
AGED CARE LEGISLATION AMENDMENT
(NEW COMMISSIONER FUNCTIONS) BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Aged Care Legislation Amendment (New Commissioner
Functions) Bill 2019 (the Bill) is to transfer additional aged care regulatory functions
to the Aged Care Quality and Safety Commissioner. These new functions include
approving providers of aged care, and monitoring and enforcing their compliance with
their aged care responsibilities.
The conferral of additional functions on the Commission will enable it to fulfil its role
to protect and enhance the safety, health, well-being and quality of life of aged care
consumers; promote confidence and trust in the provision of aged care; and promote
engagement with aged care consumers about the quality of care and services.
Human rights implications
The Bill engages the following human rights:
• The right to an adequate standard of living and the right to health;
• The protection against arbitrary interference with privacy; and
• The right to a fair trial.
The right to standard of living and health
The Bill is compatible with the right to an adequate standard of living and the right to
health as contained in article 11 and article 12(1) of the International Convention on
the Economic, Social and Cultural Rights and articles 25 and 28 of the Convention of
the Rights of Persons with Disabilities.
The right to privacy and reputation
Article 17 of the International Covenant on Civil and Political Rights (ICCPR)
prohibits arbitrary or unlawful interference with an individual's privacy, family, home
or correspondence, and protects a person's honour and reputation from unlawful
attacks. This right may be subject to permissible limitations where those limitations
are provided by law and are non-arbitrary. In order for limitations not to be arbitrary,
they must be aimed at a legitimate objective and be reasonable, necessary and
proportionate to that objective.
The Bill places obligations on participants in the regulatory scheme set up by the Bill
that relates to monitoring and investigation powers (including entry, search and
seizure) by triggering Parts 2 and 3 of the Regulatory Powers (Standard Provisions)
Act 2014 (Regulatory Powers Act).
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By triggering the Regulatory Powers Act, the Bill protects against arbitrary abuses of
power as the entry, monitoring, search, seizure and information gathering powers
provided in it are conditional upon consent being given by the occupier of the
premises or prior judicial authorisation. Where entry is based on the consent of the
occupier, consent must be informed and voluntary and the occupier of the premises
can restrict entry by authorised persons to a particular period. Additional safeguards
are provided through provisions requiring authorised persons and any persons
assisting them to leave the premises if the occupier withdraws their consent.
Further, by triggering the Regulatory Powers Act, the Bill specifies that an issuing
officer of a warrant to enter premises for the purpose of monitoring or investigation
must be a judicial officer. The Bill also provides limits on the issuing of a monitoring
or investigation warrant. In the case of an investigation warrant, for example, an
issuing officer may issue an investigation warrant only when satisfied, by oath or
affirmation, that there are reasonable grounds for suspecting that there is, or may be
within 72 hours, evidential material on the premises. An issuing officer must not issue
a warrant unless the issuing officer has been provided, either orally or by affidavit,
with such further information as they require concerning the grounds on which the
issue of the warrant is being sought. Such constraints on this power ensure adequate
safeguards against arbitrary limitations on the right to privacy in the issuing of
warrants.
An authorised person cannot enter premises unless their identity card is shown to the
occupier of the premises. If entry is authorised by warrant, the authorised person must
also provide a copy of the warrant to the occupier of the premises. This provides for
the transparent utilisation of the Bill's powers and mitigates arbitrariness and risk of
abuse.
These powers are reasonable, necessary and proportionate to achieve a legitimate
objective. Adequate safeguards and limitations on the use of regulatory powers in the
Bill ensures that such lawful interferences are not arbitrary or at risk of abuse.
The right to a fair and public hearing
Article 14 of the ICCPR ensures that everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.
By triggering the Regulatory Powers Act, the Bill provides questioning powers to
authorised officers in certain situations. These powers are expressed in sections 24
and 54 of the Regulatory Powers Act, which make it an offence to fail to answer
questions of an authorised officer. While these powers are expressed to be subject
only to very limited defences and exceptions, the Bill relies on the common law
presumption against abrogation of core rights to preserve the privilege against
self-incrimination and legal professional privilege. Sections 17 and 47 of the
Regulatory Powers Act are intended to make certain that the privilege against self-
incrimination and legal professional privilege have not been abrogated by this Bill.
These protections guarantee the fair trial rights protected in articles 14(3)(d) and (g) of
the ICCPR by limiting the operation of the questioning powers provided by the Bill.
Sections 35 and 76 of the Regulatory Powers Act also provide for a reverse onus of
proof with regard to proving an exception to an offence of strict liability. It is
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appropriate that the prosecution does not need to prove fault for the elements of this
offence, on the basis that the state of mind of the defendant is not relevant, the
elements of the offence are objective, and the offence is minor and deterrent in nature.
It is reasonable that the defendant bears an evidential burden given the context of the
exception and the minor nature of the offence.
Conclusion
The Bill promotes human rights to the highest attainable standard of physical and
mental health and is compatible with the human rights and freedoms recognized and
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Senator the Hon Richard Colbeck, Minister for Aged Care
and Senior Australians
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AGED CARE LEGISLATION AMENDMENT (NEW COMMISSIONER
FUNCTIONS) BILL 2019
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides for the short title of the Act to be the Aged Care Legislation
Amendment (New Commissioner Functions) Act 2019.
Clause 2 - Commencement
This clause sets out when the Bill commences. Sections 1 to 3 commence on the day
this Act receives Royal Assent. However, Schedules 1 to 4 commence on a day to be
fixed by proclamation, or 6 months after Royal Assent, whichever is earlier.
Clause 3 - Schedules
This clause provides that each Act specified in a Schedule to this Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other
item has effect according to its terms. This is a technical provision which gives
operational effect to the amendments contained in the Schedules.
Schedule 1 amends the Aged Care Act 1997 (Aged Care Act), the Aged Care
(Transitional Provisions) Act 1997 (Transition Act) and the Aged Care Quality and
Safety Commission Act 2018 (Quality and Safety Commission Act) in relation to the
approval of providers of aged care. Schedule 2 amends the Aged Care Act and the
Quality and Safety Commission Act in relation to the responsibilities of approved
providers. Schedule 3 amends the Aged Care Act and the Quality and Safety
Commission Act in relation to the reconsideration and review of certain decisions.
Schedule 4 provides transitional arrangements. Consequential amendments to other
Acts are also made within each schedule.
Schedule 1 -- Approval of providers of aged care
Schedule 1 makes amendments to the Aged Care Act, Transition Act and the Quality
and Safety Commission Act so that the Aged Care Quality and Safety Commissioner
(Commissioner) will approve persons (including entities taken to be persons) to be
approved providers of aged care and revoke their approval under the Quality and
Safety Commission Act. These functions are performed by the Secretary of the
Department under Divisions 8 and 10 of the Aged Care Act.
Schedule 1 also makes consequential amendments to a number of other Acts which
use the definition in the Aged Care Act of an 'approved provider'. The amendments in
Schedule 1 move the definition of an approved provider to the Quality and Safety
Commission Act. Accordingly, these other Acts which adopt the definition of an
approved provider will also be amended by Schedule 1 to refer to the definition which
will be provided under the Quality and Safety Commission Act.
Aged Care (Accommodation Payment Security) Act 2006
Item 1 - subsection 6(1)
This item amends the definition of approved provider under subsection 6(1) of the
Aged Care (Accommodation Payment Security) Act 2006, so that it refers to the
definition in the Quality and Safety Commission Act.
5
Aged Care (Accommodation Payment Security) Levy Act 2006
Item 2 - section 5 (definition of approved provider)
This item amends the definition of approved provider under section 5 of the
Aged Care (Accommodation Payment Security) Levy Act 2006, so that it refers to the
definition in the Quality and Safety Commission Act.
Aged Care Act 1997
Items 3, 4 and 5 - section 3-2
Section 3-2 of the Aged Care Act sets out that the approvals required before the
Commonwealth can pay a subsidy to an approved provider are established under
Chapter 2 of the Aged Care Act.
Items 3 and 4 amend this section to reflect the transfer of the function of approving
providers under Division 8 of the Aged Care Act to Part 7A of the Quality and Safety
Commission Act. Item 5 adds a note that directs the reader to Part 7A of the Quality
and Safety Commission Act for the approval of providers.
Item 6 - section 3-4
Section 3-4 sets out that the responsibilities of approved providers are established
under Chapter 4 of the Aged Care Act. These relate to quality of care, the rights of
care recipients, accountability for the care being provided and suitability of key
personnel. The section indicates that if an approved provider fails to meet these
responsibilities sanctions can be applied which may affect the status of approvals
under Chapter 2, and may therefore affect matters including the approved provider's
ability to receive a subsidy.
This item replaces cross references to the function of imposing sanctions on approved
providers under Part 4.4 in section 3-4 with references to Part 7B of the Quality and
Safety Commission Act as a consequence of this function transferring from the
Secretary to the Commissioner.
Items 7, 8, 9 and 10 - section 5-1
Section 5-1 provides an overview of the approvals and other decisions which may
need to be granted or made under Chapter 2 of the Aged Care Act before a provider of
aged care can be paid a subsidy for providing care under the Aged Care Act. This
includes the approval of providers.
These items amend this section to reflect the transfer of the function of approving
providers under Division 8 of the Aged Care Act to Part 7A of the Quality and Safety
Commission Act. Item 10 adds a note that directs the reader to Part 7A of the Quality
and Safety Commission Act for approval of providers.
Items 11 and 12 - section 5-2
Section 5-2 sets out the approvals that must be in place in order for an approved
provider to receive a subsidy under the Aged Care Act.
Items 11 and 12 amend this section to reflect the transfer of the function of approving
providers under Division 8 of the Aged Care Act to Part 7A of the Quality and Safety
Commission Act. Item 12 adds a note that directs the reader to Part 7A of the Quality
and Safety Commission Act for approval of providers.
6
Item 13 - Part 2.1 (heading)
Item 13 replaces the heading 'Approval of providers' of Part 2.1 of the Aged Care
Act, with 'Approved providers', as a consequence of transferring the Secretary's
function of approving providers under Division 8 of the Aged Care Act to the
Commissioner under Part 7A of the Quality and Safety Commission Act. The
provisions of Part 2.1 will deal with specific matters arising in relation to 'approved
providers'.
Part 2.1 - Approved Providers
Item 14 - sections 6-1 and 6-2
This item replaces the description of the matters which will be provided for under Part
2.1 of the Act.
Items 15, 16 and 17 - section 7-1
Section 7-1 sets out the pre-conditions that apply to an approved provider before it
can receive payment of a subsidy under Chapter 3 of the Aged Care Act.
These items amend section 7-1 to reflect the transfer of the Secretary's function of
approving providers under Division 8 of the Aged Care Act to the Commissioner
under Part 7A of the Quality and Safety Commission. Item 17 adds a note that directs
the reader to Part 7A of the Quality and Safety Commission Act for approval of
providers.
Item 18 - Division 8
Division 8 sets out the process for a person to become an approved provider for the
purposes of the Aged Care Act. This includes a state or territory, a state or territory
authority, or a local government authority, which are entities taken to be a corporate
person for the purposes of approval as a provider of aged care under Division 8.
Item 18 will repeal Division 8 of the Aged Care Act to abolish the Secretary's
function of approving providers of aged care, as part of transferring this function to
the Commissioner under Part 7A of the Quality and Safety Commission Act. Part 7A
will be inserted by item 64 of Schedule 1 to confer on the Commissioner the
additional functions of approving providers of aged care.
Items 19, 20, 21, 22 and 23 - subsections 9-1(1), (2), (3A) and (4)
These items amend section 9-1 of the Aged Care Act to establish that reports of
changes in circumstances materially affecting an approved provider's suitability to
provide aged care must be made to the Commissioner rather than the Secretary, and to
omit references to Division 8 (which is repealed by Item 18). These changes are
consequential to transferring the Secretary's function of approving providers under
Division 8 of the Aged Care Act to the Commissioner under Part 7A of the Quality
and Safety Commission Act. This will include deciding whether an approved provider
is suitable to provide aged care for the purposes of determining whether to revoke the
person's approval under subsection 63J(3) of the Quality and Safety Commission Act.
Item 22 inserts a new subsection 9-1(3B) into the Aged Care Act which will provide
that the Approved Provider Principles may specify changes in circumstances taken to
materially affect an approved provider's suitability. Subsections 9-1(1) and (4) impose
7
obligations (administrative and criminal) on approved providers to more generally
notify the Secretary of any changes which materially affect their suitability. This will
include any specified changes taken to materially affect an approved provider's
suitability under subsection 9-1(3B), in addition to any other changes not specified
under subsection 9-1(3B) which actually have this affect.
Without limiting its scope, subsection 9-1(3B) is intended to be used to specify the
kinds of changes which are likely to, but will not necessarily in all circumstances,
affect an approved provider's suitability in a material respect, such as changes which
are indicative of risks to care recipients. With these notifications, the Commissioner
will be able to monitor changes in an approved provider's circumstances which may
put at risk their suitability, before it is compromised in a material respect. In this way,
specifying changes under subsection 9-1(3B) may also be used to help guide approved
providers with meeting their general obligations to notify under s 9-2.
The Approved Provider Principles are a legislative instrument, which may be made or
amended by the Minister under section 96-1 of the Aged Care Act.
Items 24, 25 and 26 - subsection 9-2(1)
Section 9-2 provides that the Secretary may request an approved provider to give
information relevant to the provider's continuing status as an approved provider. The
provision creates an offence for an approved provider that fails to comply with the
request.
Items 24, 25 and 26 amend section 9-2 so that the Commissioner may request and
receive information from approved providers. This is consequential to transferring the
Secretary's function of approving providers under the Aged Care Act to the
Commissioner under Part 7A of the Quality and Safety Commission Act. Requesting
information under section 9-2 will be relevant to matters such as assessing an
approved provider's suitability to provide aged care, such as when deciding whether
to revoke the approval of providers of aged care.
Items 27, 28, 29, 30, 31, 32, 33 and 34 - sections 9-3A and 9-3B
Sections 9-3A and 9-3B provide that the Secretary may, in certain circumstances,
request information from approved providers regarding their refundable deposits,
accommodation bonds and entry contributions (9-3A), and their ability to refund
balances (9-3B). Approved providers have an aged care responsibility to comply with
requests by the Secretary. There are also offences for approved providers who fail to
comply with a request to give information under sections 9-3A and 9-3B.
Items 27 to 34 will amend these sections so that both the Secretary and the
Commissioner will have the ability to request information from approved providers.
The Secretary will be able to request this information to continue to perform functions
under the Aged Care Act, including Parts 2.4, Chapter 3 and Division 95, and to
administer the Aged Care (Accommodation Payment Security) Act 2006 and the
Aged Care (Accommodation Payment Security) Levy Act 2006. The Commissioner
will also be able to request information under sections 9-3A and 9-3B, as a
consequence of transferring the Secretary's functions of approving providers of aged
care under Division 8 and 10, and monitoring and enforcement (including monitoring
and enforcement of the aged care responsibilities relating to permitted uses of
8
accommodation deposits and the Prudential Standards, and investigating related
offences) under Parts 4.1 and 6.4 of the Aged Care Act to the Commissioner.
Accordingly, both office holders will exercise these powers.
Item 35 - section 9-4
Section 9-4 makes clear a person who is approved under section 8-1 continues to be
required to comply with the obligations of an approved provider imposed under
Division 9 even when their approval as a provider has been suspended.
This item replaces cross references to the approval of a provider under section 8-1 and
the suspension of this approval under Part 4.4 in section 9-4 of the Aged Care Act
with Parts 7A and 7B of the Quality and Safety Commission Act respectively. These
amendments are made as a consequence of transferring these powers from the
Secretary to the Commissioner. This will avoid uncertainty regarding the ability of the
Secretary and Commissioner to request and be given information under Division 9
while a provider is subject to this kind of sanction.
Items 36 and 37- Division 10 and section 10A-1
Division 10 and section 10A-1 of the Aged Care Act provide for the revocation of the
approval of a provider and a definition of disqualified individuals, respectively.
Item 36 will repeal Division 10 of the Aged Care Act to abolish the Secretary's
function of revoking the approval of providers of aged care, as part of transferring this
function to the Commissioner under Part 7A of the Quality and Safety Commission
Act. Part 7A will be inserted by item 64 of Schedule 1 to confer on the Commissioner
the additional functions of approving providers of aged care.
Item 37 will also repeal section 10A-1 since the term 'disqualified individual' will be
defined under section 8A of the Quality and Safety Commission Act for the purposes
of performing functions under Part 7A, and exercising monitoring powers under Part
8A of the Quality and Safety Commission Act to determine whether an approved
provider is complying with its responsibility to take all reasonable steps specified in
the Accountability Principles to ensure none of its key personnel is a disqualified
individual under section 63-1A of the Aged Care Act.
Item 38 - subsection 10A-3(7)
Subsection 10A-3(7) defines the Federal Court for the purposes of seeking remedial
orders in relation to an unacceptable key personnel situation under section 10A-3.
This subsection will be repealed since the same definition will be inserted into the
dictionary under Schedule 1 of the Aged Care Act for the purposes of triggering the
Regulatory Powers Act, by item 35 of Schedule 2 of this Bill.
Item 39 - subsection 14-1(2)
Section 14-1 of the Aged Care Act provides for how aged care places are allocated to
an approved provider. This item will remove reference to section 8-1 of the Aged
Care Act since this will be repealed.
Items 40 and 41 - paragraphs 16-2(4)(a) and (b)
Subsection 16-2 provides for the transfer of allocated places from an approved
provider to another person. These items will remove reference to the approval of
9
providers under section 8-1 of the Aged Care Act since this provision will be
repealed.
Items 42 and 43 - paragraphs 16-13(4)(a) and (b)
Section 16-13 provides for transfer notices in relation to provisionally allocated
places. These items remove references to the approval of providers under section 8-1
of the Aged Care Act since this provision will be repealed.
Item 44 - paragraph 33-3(1)(c)
Section 33-3 of the Aged Care Act sets out the circumstances in which the extra
service status for an aged care service lapses. Paragraph (1)(c) provides the cessation
of an approval under Division 10 of the Aged Care Act as one of those circumstances.
This item replaces the reference to Division 10 of the Aged Care Act with section 63G
of the Quality and Safety Commission Act, as a consequence of transferring the
Secretary's function of revoking approval under Division 10 of the Aged Care Act to
the Commissioner under Part 7A of the Quality and Safety Commission Act.
Item 45 - paragraph 46-1(1)(a)
Section 46-1 of the Aged Care Act establishes when an approved provider is eligible
to receive a subsidy for providing home care under the Aged Care Act, including the
requirement, set out in paragraph (1)(a), to be approved under Part 2.1 as a provider of
home care. This item removes the cross reference to the function of approving
providers under Part 2.1 of the Aged Care Act since Division 8 of this Part will be
repealed.
Items 46 and 47 - subsections 63-1C(1) and 63-1C(2)
Section 63-1C of the Aged Care Act imposes a responsibility on approved providers
to do all things reasonably practicable to ensure that there is no change to the
circumstances materially affecting an approved provider's suitability, specified in a
notice under subsection 8-5(3) without complying with the steps set out in that notice.
For example, such steps may include getting the approval of the Secretary before a
circumstance specified by the Secretary is permitted to change. This item updates
references to a notice given under subsection 8-5(3) of the Aged Care Act as a
consequence of transferring the Secretary's function of approving providers under
Division 8 to the Commissioner under Part 7A of the Quality and Safety Commission
Act.
Item 48 - paragraph 72-1(4)(a)
Section 72-1 of the Aged Care Act provides for the Secretary to allocate aged care
grants to residential aged care providers for the cost of capital works. This item
removes a cross reference to an 'approval under Part 2.1' as the relevant approval
since Division 8 will be repealed.
Item 49 - subparagraph 86-1(b)(iii)
Subparagraph 86-1(b)(iii) provides that information relating to the affairs of an
applicant for approved provider status is to be protected information under the Aged
Care Act. Division 86 of the Aged Care Act provides offences for the unauthorised
use or disclosure of protected information.
10
This item repeals this subparagraph since this kind of information will be protected
under section 60 of the Quality and Safety Commission Act (by amendment under
item 63 of the Schedule), as a consequence of transferring the Secretary's function of
approving providers under Division 8 of the Aged Care Act to the Commissioner
under Part 7A of the Quality and Safety Commission Act.
Items 50, 51, 52, 53 and 54 - Clause 1 of Schedule 1
These items repeal the definitions of 'approved provider', 'authority of a State or
Territory', 'disqualified individual', 'key personnel', 'local government authority' in
Schedule 1 - Dictionary of the Aged Care Act as these definitions are now contained
within the Quality and Safety Commission Act.
Aged Care Quality and Safety Commission Act 2018
Items 55 and 56 - subsections 5(1) and (2)
Section 5 states the object of the Quality and Safety Commission Act, including to
establish a regulatory framework that will protect and enhance the safety, health, well-
being and quality of life of aged care consumers.
The object also sets out Parliament's intention to confer additional functions on the
Commission through future amendments. As this Bill confers these additional
functions, this part of the object is repealed.
Item 57 - section 6
Section 6 of the Quality and Safety Commission Act provides a simplified outline of
the matters that are dealt with under this Act. This item will amend section 6 to
outline the additional function of approving providers of aged care, which will be
conferred under the Quality and Safety Commission Act by amendments set out under
this Schedule.
Items 58 and 59 - section 7 (definitions)
These items will add definitions in the Aged Care Act to the Quality and Safety
Commission Act, for the purposes of the function of approving providers of aged care
which will be conferred on the Commissioner under Part 7A of the Quality and Safety
Commission Act.
Item 60 - Sections 8A and 8B - Meaning of disqualified individual and key
personnel
This item inserts a new section 8A into the Quality and Safety Commission Act to
include a definition of a disqualified individual into the Act and establishes that a
disqualified individual is unable to hold a position of key personnel. This provision
provides that a person who has been convicted of an indictable offence, is an
'insolvent under administration' (as defined in the Acts Interpretation Act 1901), or
has been determined by a registered medical practitioner as being unable to perform
their duties, due to mental incapacity, in a key management or clinical position for an
approved provider or an aged care service the person operates.
This item also inserts a new section 8B into the Quality and Safety Commission Act
to include a definition of which persons are considered to be the 'key personnel' of an
approved provider. This provision enables other provisions, which either disqualify
11
individuals from being key personnel, or allow the suitability of key personnel to be
assessed as part of a provider's suitability, to operate.
Key personnel is defined to incorporate a person who has responsibilities associated
with the management of the operations of an approved provider or one of its aged care
services, and a person who is responsible for the nursing services provided by an aged
care service. Key personnel is not limited to employees of an approved provider, so
would include any subcontractors that hold such positions and, where that
subcontractor is a corporation, the executive decision makers of that corporation.
Item 61 - section 14
Section 14 of the Quality and Safety Commission Act provides a simplified outline of
Part 3 of this Act. Part 3 deals with matters relating to the Commissioner, including
the Commissioner's functions and appointment. This item will amend section 14 to
outline the additional function of approving providers of aged care, to be set out under
subsection 16(1).
Item 62 - paragraph 16(1)(a)
Subsection 16(1) of the Quality and Safety Commission Act sets out the functions of
the Commissioner, that include (among others) the consumer engagement functions,
the complaints functions, the regulatory functions and the education functions.
This item will include, under subsection 16(1), the additional functions of approving
providers of aged care and revoking approval of providers conferred by Part 7A of the
Quality and Safety Commission Act, which will be inserted under item 64 of
Schedule 1.
Item 63 - subsection 60(2)
Section 60 of the Quality and Safety Commission Act sets out protections for
information that the Commission receives in the course of performing its functions,
where that information relates to the affairs of an approved provider or personal
information of an aged care consumer.
The definition of protected information under subsection 60(2) will be extended to
include information relating to the affairs of an applicant for approval under section
63B of the Quality and Safety Commission Act.
This information is protected information under the Aged Care Act for the purposes of
the function of approving providers under Division 8 of that Act. This change is
consequential to the amendments which transfer the Secretary's function of approving
providers to the Commissioner under Part 7B of the Quality and Safety Commission
Act.
Item 64 - After Part 7
This item will insert Part 7A into the Quality and Safety Commission Act to confer on
the Commissioner the additional functions of approving providers of aged care and
revoking their approval, as part of transferring these functions of the Secretary under
Divisions 8 and 10 of the Aged Care Act. Part 7A of the Quality and Safety
Commission Act reflect the intent of the provisions of these divisions of the Aged
Care Act.
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Part 7A - Approval of providers of aged care etc
Division 1 - Introduction
Section 63A - Simplified outline of this Part
Section 63A provides a simplified outline of Part 7A.
Division 2 - Approval of providers of aged care
Section 63B - Application for approval as provider of aged care
Section 63B sets out how an entity must apply for approval to be an aged care
provider, requiring that an application must be made in writing to the Commissioner,
using any form provided by the Commissioner and including any additional
documents or information that the Commissioner requires.
The application must also be accompanied by any fees specified by the
Commissioner. The Commissioner has the power to charge fees for their services
under section 23 of the Quality and Safety Commission Act.
Section 63C - Request for further information
Section 63C enables the Commissioner to seek further information from an applicant
to assist the Commissioner to make a decision on its application. The provision
requires the Commissioner to give the applicant at least 28 days to provide the
information, however this period may be shortened if circumstances specified in the
Rules apply.
Where an applicant fails to provide the information requested within the requested
timeframe, their application is taken to have been withdrawn. However, the applicant
would be free to reapply for approval, and include the requested information as part of
that additional application.
Section 63D - Commissioner must decide whether to approve a person as
provider of aged care
Section 63D requires the Commissioner to decide whether to approve an application
within 90 days of receiving the application, or the additional information requested
under section 63C.
The Commissioner must not approve the applicant unless they are satisfied that the
applicant is a corporation, is suitable to provide aged care, and that none of the key
personnel are disqualified individuals.
In considering the suitability of the applicant, the Commissioner must consider the
applicant's experience, understanding and systems for providing care and complying
with the responsibilities of aged care providers, and the person's past record of
financial management and aged care performance and compliance.
In determining whether the applicant is suitable, the Commissioner may also consider
the suitability of the key personnel of the applicant, including any subcontractors that
will be managing, operating or providing nursing services at an aged care service.
Importantly, these provisions do not limit the matters the Commissioner can take into
account.
13
Section 63E - Notification of decision relating to approval of person as provider
of aged care
This provision sets out that the Commissioner must notify an applicant of the
Commissioner's decision within 14 days of making the decision to approve the person
as a provider of aged care. This notice must set out the decision, the day approval
comes into effect, the types of aged care the person is approved to provide, that the
approval is in respect of the services for the type of care the provider is approved to
provide, and any circumstances to be notified to the Commissioner, and agreed to,
before the provider can make any changes to these circumstances. The notice must
also inform providers of certain obligations arising from becoming an approved
provider, including the requirement to respond to notices to provide information and
the circumstances under which they may be sanctioned.
Where the approval is denied, the notice must set out the decision, reasons for the
decision and how the person may apply for the reconsideration of the decision.
The Commissioner must provide a copy of such notices to the Secretary, to assist with
the administration of payments and other matters under the Aged Care Act.
Division 3 - Deemed approval of States, Territories and local government etc.
Section 63F - States, Territories and local government etc. taken to be approved
providers etc.
Section 63F preserves the operation of section 8-6 of the Aged Care Act, which
provides for certain State and Territory organisations to be taken to be an approved
provider without making an application.
Section 63F establishes that these entities will be taken to be approved providers by
giving the Commissioner a notice of their intention to provide aged care services.
These approved providers will be subject to the same aged care responsibilities as
other approved providers. Were a State or Territory approved provider to have their
deemed approval revoked, they would not be able to provide a further notice under
this provision and would be subject to the application process.
Division 4 - Cessation and revocation of approval
Section 63G - When approval as provider of aged care ceases to have effect
This section provides that the approval of an approved provider will cease to have
effect during any period of a suspension or if it is revoked.
Where approved providers fail to meet their responsibilities under the Aged Care Act,
they may be sanctioned under the provisions of Part 7B of the Quality and Safety
Commission Act (inserted by this Bill), including having their approval revoked or
suspended.
In addition, where an approved provider is found to no longer be suitable to provide
aged care, the Commissioner can revoke their approval.
Section 63H - Revocation of approval on request of approved provider
Section 63H allows an aged care provider to request the Commissioner revoke their
approval.
14
Where the Commissioner is satisfied that appropriate care arrangements have been
made for the provider's care recipients in accordance with paragraph 63H(3)(b) of the
Quality and Safety Commission Act for an approved provider of home care service,
the Commissioner will revoke the providers approval and provide a written notice.
If the provider provides a residential care or flexible care service, the Commissioner
must be satisfied that the allocation of places made in respect of these services has
ceased under 63H(3)(a) of the Quality and Safety Commission Act, before revoking
an approved provider's approval. As a prerequisite for the cessation of the allocation
of places made in respect of a residential care service or a flexible care service, the
Secretary must be satisfied that appropriate care arrangements have been made for the
provider's care recipients under section 18-3 of the Aged Care Act.
If the Commissioner denies the request, the Commissioner must give notice of the
reasons for that decision and how the provider can request a reconsideration of that
decision.
Revocation of approval will mean the person will no longer be required to comply
with any of the aged care responsibilities of an approved provider.
However, there are some offences which impose criminal responsibilities on former
approved providers, such as offences related to the record keeping obligations under
Part 6.3 or the refund of deposits under Division 52P of the Aged Care Act, and other
offences which continue to apply to persons independently of any approval.
Section 63J - Revocation of approval of approved provider if Commissioner is
satisfied of certain matters
Section 63J will require the Commissioner to revoke the approval of a provider where
the Commissioner is satisfied that they are no longer suitable to provide aged care.
The test of suitability is the same as under section 63D.
For providers taken not to be approved under section 63F, the Commissioner must
also revoke their approval if their application was false and misleading or where they
cease to be a corporation.
Section 63K - Notice of intention to revoke approval as provider of aged care
This section provides the Commissioner must, before revoking an approved
provider's approval, give them a notice of intention to revoke their approval, and to
provide them with an opportunity to make submissions before the decision whether to
revoke their approval is made.
The Commissioner must give notice of their reasons for considering to revoke the
approval and provide 28 days for submissions to be made. The Commissioner is
required to make a decision within a further 28 days after the period for making
submissions has closed.
Section 63L - Notice of revocation of approval as provider of aged care etc.
Section 63L sets out the requirements for the Commissioner to give an approved
provider notice when their approval has been revoked. The notice must set out why
15
the Commissioner has decided to revoke the provider's approval and how they may
apply to have that decision reconsidered.
Subsections (2) to (5) allow the Commissioner to provide additional notices, which
have the effect that revocation may occur by limiting the approval on a progressive
basis. This is intended to avoid revocation taking effect before the Commissioner is
satisfied that appropriate care arrangements are in place to ensure care recipients
continue to be provided with care after revocation takes effect.
Under subsection (2), the Commissioner can give notice to the provider of the day
revocation will take effect. Prior to this, under subsection (5), the Commissioner can
also give one or more notices limiting the provider's approval to certain types of aged
care or particular aged care services. Once the Commissioner is satisfied appropriate
arrangements are in place, the Commissioner can then provide for the revocation
decision to take effect by giving notice under subsection (2).
Aged Care (Transitional Provisions) Act 1997
Items 65, 66, 67, 68, 69, 70 and 71 - sections 3-2 and 3-4, paragraph 46-1(1)(a)
and Schedule 1
The Aged Care (Transitional Provisions) Act 1997 provides certain arrangements for
care recipients who were in receipt of aged care prior to 2014 amendments to the
Aged Care Act. It contains a number of references to the provisions of Division 8 and
Part 4.4 of the Aged Care Act, which will be repealed by this Bill.
These items make consequential amendments to update these references to the new
provisions of the Quality and Safety Commission Act.
A New Tax System (Goods and Services Tax) Act 1999
Item 72 - section 195-1
Section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 defines an
approved provider for the purposes of the definition of a retirement village in that Act.
This item updates the definition of an approved provider, to refer to the definition now
in the Quality and Safety Commission Act.
Healthcare Identifiers Act 2010
Item 73 - section 5
Section 5 of the Healthcare Identifiers Act 2010 refers to the definition of an
approved provider. This item updates this definition, to refer to the definition now in
the Quality and Safety Commission Act.
Social Security Act 1991
Items 74 and 75 - subsections 23(4CA) and (4CB)
Section 23 of the Social Security Act 1991 refers to the definition of an approved
provider. This item updates these provisions, to refer to the definition now in the
Quality and Safety Commission Act.
16
Veterans' Entitlements Act 1986
Items 76, 77, 78 and 79 - sections 5H, 5N and 5NC
Sections 5H and 5N of the Veterans' Entitlements Act 1986 refer to the definition of
an approved provider. This item updates these provisions, to refer to the definition
now in the Quality and Safety Commission Act.
Schedule 2 - Responsibilities of approved providers etc
Aged Care Act 1997
Item 1 - section 7-2
This item repeals section 7-2 of the Aged Care Act which currently sets out the effect
of imposing sanctions which restrict the approval of a provider of aged care to certain
aged care services or certain care recipients, or the payment of subsidies to an
approved provider. The section 7-2 inserted under this item reflects changes to the
provisions relating to sanctions and the approval of providers.
Item 2 - subsections 9-1A(1), 9-1(1), 9-2(2), 9-3(2), 9-3A(2) and 9-3B(4)
This item updates multiple references to the new Part 7B of the Quality and Safety
Commission Act under which sanctions may be imposed, in the notes under Division
9 of the Aged Care Act. These notes identify the requirements which constitute an
aged care responsibility, as they relate to obligations to notify and provide requested
information.
Item 3 - subsection 14-1(2A)
This item repeals and replaces subsection 14-1(2A) with a new subsection to reflect
changes to the provisions under which sanctions to prohibit further allocation of
places may be imposed on a person.
Item 4 - subsection 14-4(2)
This item removes the reference to Part 4.4 under subsection 14-4(2), and replaces
this with a reference to the notice by which sanctions are imposed under 63P of the
Quality and Safety Commission Act, for the purposes of describing the effects of
particular sanctions on the waiver of certain requirements relating to allocations.
Item 5 - subsections 14-5(1), 14-6(3) and 16-11(2)
This item updates multiple references to the new Part 7B of the Quality and Safety
Commission Act under which sanctions may be imposed, in the notes under Division
14 and 16 of the Aged Care Act. These notes identify the requirements which
constitute an aged care responsibility, as they relate to the conditions of allocations.
Items 6 and 7 - paragraph 18-1(1)(b) and subsection 18-1(3)
These items amend section 18-1 to update references to Part 4.4, with new provisions
to impose particular sanctions under section 63P of the Quality and Safety
Commission Act, for the purposes of describing effects on the cessation of
allocations.
Item 8 - subsections 18-2(4) and 18-4(1)
This item updates multiple references to Part 7B of the Quality and Safety
Commission Act under which sanctions may be imposed, in the notes under
Division 18 of the Aged Care Act. These notes identify the requirements which
17
constitute an aged care responsibility, as they relate to the relinquishment of allocated
places.
Item 9 - paragraphs 25-4(1)(a) and (b)
This item repeals and inserts new paragraphs 25-4(1)(a) and (b) which extend the
grounds on which the Secretary may suspend an approved provider from making
appraisals under section 25-3 and reappraisals under section 27-4, to include where
the Secretary is satisfied the approved provider, or a person acting on the approved
provider's behalf, has not conducted an appraisal or reappraisal in a proper manner.
This additional ground for suspending an approved provider or a person acting on the
approved provider's behalf is intended to complement the existing aged care
responsibilities under 63-1(1)(a) and (h).
Items 10, 11, 12 and 13 - subsections 32-8(6) and 33-4(1), paragraph
33-1(c) and section 36-4
These items make various amendments which update references to Part 4.4 with the
relevant provision (section 63P or Part 7B) of the Quality and Safety Commission Act
under which sanctions are imposed. These references relate to the sanctions which
may be imposed in relation to an extra service status or the sanctions which may be
imposed for failing to comply with the conditions to which an extra service status is
granted.
Item 14 - subsection 42-2(1)
This item amends subsection 42-2(1) to update references to section 67A-5 with the
provisions under 63R of the Quality and Safety Commission Act, in relation to the
days on which the care recipient is taken to be provided with residential care.
Items 15 and 16 - paragraph 52G-2(d) and 52G-6(d)
These items repeal and replace paragraphs 52G-2(d) and 52G-6(d) to update
references to the particular sanctions which may be imposed to prohibit the charging
of an accommodation payment or accommodation contribution for the service.
Items 17, 18 and 19 - sections 53-1 and 55-1 and subsection 53-2(1)
These items make various amendments which update references to Part 7B of the
Quality and Safety Commission Act under which sanctions may be imposed for
failing to comply with the responsibilities described under sections 53-1 and 55-1, and
the Quality and Safety Commission Act under subsection 53-2(1) being one of the
laws under which a failure to comply has consequences.
Item 20 - paragraphs 63-1(1)(b) and (ba)
This item repeals paragraphs 63-1(1)(b) and (ba) and replaces these with a single
responsibility under paragraph (b) to consolidate the current responsibility under
63-1(1)(ba) to cooperate with persons exercising powers under Part 8 of the Quality
and Safety Commission Act or performing related functions, and the responsibility
under paragraph 63-1(1)(b) to cooperate with persons exercising powers under
Part 6.4 of the Aged Care Act or performing related functions, with a responsibility to
also cooperate with persons exercising powers under Parts 2 and 3 of the Regulatory
Powers Act or performing related functions. This single responsibility will operate
across the applicable functions and powers of the Commissioner and the Secretary.
18
Item 21 - paragraph 63-1(1)(k)
This item repeals and replaces paragraph 63-1(1)(k) to update references to the new
provisions under which an undertaking may be given by an approved provider under
63T or 63U, in relation to which an approved provider has a responsibility to comply.
Item 22- paragraphs 63-1AA(2)(b), (4)(b), (5)(e) and (7)(b)
These items will replace references to the Secretary with the Commissioner under
section 63-1AA of the Aged Care Act, as part of transferring the Secretary's functions
relating to a reportable assault within the meaning of subsection 63-1AA(9) to the
Commissioner.
Item 23 - subsection 63-1A(2)
Item 23 amends the responsibility of approved providers under subsection 63-1A(2) to
take all reasonable steps specified in the Sanctions Principles to ensure that none of its
key personnel is a disqualified individual, to instead provide for these steps to be
specified in the Accountability Principles. This item will ensure reasonable steps may
continue to be specified for the purposes of subsection 63-1A(2) despite the repeal of
the Sanctions Principles.
Items 24 and 25 - paragraphs 63-2(2)(f) and (2)(g)
These items amend requirements for the annual report on the operation of the Aged
Care Act which remove redundant provisions, as a consequence of transferring the
Secretary's function of imposing sanctions on approved providers under Part 4.4 of
the Aged Care Act to the Commissioner under Part 7B of the Quality and Safety
Commission Act. Corresponding annual reporting requirements will be inserted into
the Quality and Safety Commission Act under item 48 of Schedule 2.
Item 26 - Part 4.4
This item will repeal Part 4.4 of the Aged Care Act to abolish the Secretary's function
of dealing with the consequences of non-compliance by approved providers with their
responsibilities under Parts 4.1, 4.2 and 4.3 - which includes imposing sanctions on,
and lifting sanctions from, approved providers - as part of transferring this function to
the Commissioner under Part 7B of the Quality and Safety Commission Act. Part 7B
will be inserted by item 52 of Schedule 2.
Item 27 - section 84-1
This item omits and replaces the reference to Part 6.4 and its description, as a
consequence of item 29.
Item 28 - subsections 88-1(1) and (2), 88-2(1) and 88-3(1)
This item updates multiple references to the new Part 7B of the Quality and Safety
Commission Act under which sanctions may be imposed, in the notes under
Division 88 of the Aged Care Act. These notes identify the requirements which
constitute an aged care responsibility, as they relate to record keeping.
Item 29 - Part 6.4
This item will repeal and replace Part 6.4 with a new part to effectively abolish the
existing powers conferred on the Secretary and authorised officers of the Department,
as these relate to the exercise of monitoring powers to assess compliance by approved
providers with their responsibilities under Parts 4.1, 4.2 and 4.3 of the Aged Care Act,
19
the exercise of powers to investigate under warrant contraventions of related offences,
and the performance of functions related to the exercise of these powers under Part
6.4. These powers will be removed from Part 6.4 of the Aged Care Act as part of
transferring the same kinds of power to the Commissioner and authorised officers of
the Commission.
In addition, item 29 makes consequential amendments to Part 6.4 which will
reproduce all other powers and related functions currently conferred on the Secretary
and authorised officers of the Department for the purposes of the functions which will
continue to be performed by the Department under the Aged Care Act - in broad terms
these relate to the funding of approved providers. These powers will be largely
reproduced under the new Part 6.4 inserted by this item.
The powers which will be reproduced under new Part 6.4 of the Aged Care Act or
transferred to Parts 8 and 8A of the Quality and Safety Commission Act include
monitoring and investigation powers, and powers to issue notices to obtain relevant
information or documents from any person.
Part 6.4 - Compliance and enforcement powers
Repeal of Part 6.4 - Powers of officers
Division 91, Part 6.4 of the Aged Care Act confers on authorised officers powers to
enter premises with consent, and exercise monitoring powers, for the purposes of:
- determining applications (excluding applications for approval) made under the
Aged Care Act and Transition Act assessing whether the conditions of grants
made under Chapter 5 have been complied with;
- assessing whether appraisals or reappraisals of the level of care required by
care recipients, and verifying whether claims for payment of a subsidy have
been properly made; and
- assessing compliance with the responsibilities of approved providers under
Chapter 4, and the record keeping obligations under Part 6.3 of the
Aged Care Act.
In addition, Division 92 confers powers on authorised officers to enter premises under
warrant, to exercise monitoring powers for the purposes of:
- assessing whether appraisals or reappraisals of the level of care required by
care recipients, and verifying whether claims for payment of a subsidy have
been properly made; and
- assessing compliance with the responsibilities of approved providers under
Chapter 4, and the record keeping obligations under Part 6.3 of the
Aged Care Act.
Division 92 also provides powers to authorised officers to enter premises under
warrant to exercise investigation powers in relation to the commission of an offence
under the Aged Care Act.
Division 93 confers on the Secretary the power to require persons to attend before an
authorised person to answer questions, or provide information or documents by
notice, for the same purposes for which monitoring powers are conferred under
Division 91.
20
Substitute Part 6.4
Item 29 will confer the same kinds of regulatory powers available under Part 6.4 of
the Aged Care Act, but with a reduced scope that reflects the functions of the
Secretary after the amendments set out in this Bill.
Part 6.4, Division 92 will trigger the Regulatory Powers Act with modifications to
largely reproduce the existing standard powers for monitoring provisions relating to
appraisals and reappraisals and payments of subsidies or supplements. Further,
Divisions 91 and 93 together reproduce the other powers which are not available
under the Regulatory Powers Act, for the additional purposes of deciding applications
(other than for approval as a provider of aged) and determining compliance with the
conditions of grants under Chapter 5.
In addition, Division 92 will confer new investigation powers for the purposes of the
civil penalty provision under Division 29A of the Aged Care Act. These powers will
complement existing regulatory powers to ensure the necessary powers are available
to enable the Department to effectively promote compliance with these provisions.
Part 6.4 will not provide regulatory powers for purpose of determining the approval of
providers under Division 8 of the Aged Care Act, and assessing the compliance of
approved providers with their aged care responsibilities, including responsibilities to
keep proper records in accordance with Part 6.3 of the Aged Care Act enforced under
Part 4.4.
In addition, Part 6.4 will not contain regulatory powers for monitoring and
investigating the commission of any offences against the Aged Care Act, including
offences for failing to keep records in accordance with Part 6.3 of the Aged Care Act.
These kinds of powers will be conferred on the Commission, to be exercised in the
performance of functions under Part 7A and 7B of the Quality and Safety
Commission Act.
A table showing how existing powers will be reproduced under the Aged Care Act
(referred to as ACA) or transferred to the Quality and Safety Commission Act
(referred to as ACQSCA) is below (pages 22-24). Relevant provisions of the
Regulatory Powers Act (referred to as RPA) and the Aged Care (Transitional
Provisions) Act 1997 (referred to as TA) are also referenced.
21
Part 6.4 ACA The Bill
Regulatory Provisions subject to
powers regulatory powers Current Effect of Corresponding
provisions amendments provisions
Entry and applications for approval Div 91 ACA Transferred to Part 8
search of provider under the ACA ACQSCA ACQSCA
powers, with
consent other applications made Div 91 ACA Reproduced Div 91 ACA
under the ACA or TA under ACA
conditions of a grant under
Chapter 5 of the ACA
Monitoring aged care responsibilities Div 91 ACA Transferred to Part 2 RPA
powers, with under Chapter 4 of the ACQSCA triggered: 74B
consent ACA & 74C
ACQSCA
records kept under Part 6.3
of the ACA
claims for payments under Div 91 ACA Reproduced Part 2 RPA
Chapter 3 of the ACA or under ACA triggered: 92-1
TA & 92-2 ACA
appraisals/reappraisals
under Part 2.4 of the ACA
civil penalty provision n/a New power Parts 2 & 3
under Div 29A of the conferred RPA triggered:
ACA under ACA 92-1 & 92-2
ACA
Monitoring aged care responsibilities Div 92 ACA Transferred to Part 2 RPA
powers, under Chapter 4 of the ACQSCA triggered: 74B
under ACA & 74C
warrant ACQSCA
records kept under Part 6.3
of the ACA
22
Part 6.4 ACA The Bill
Regulatory Provisions subject to
powers regulatory powers Current Effect of Corresponding
provisions amendments provisions
Monitoring claims for payments under Div 92 ACA Reproduced Part 2 RPA
powers, Chapter 3 of the ACA or under ACA triggered: 92-1
under TA & 92-2 ACA
warrant,
cont'd appraisals/reappraisals
under Part 2.4 of the ACA
Investigation civil penalty provision n/a (with Div New power Parts 2 & 3
powers, with under Div 29A of the 92 powers re conferred RPA triggered:
consent ACA appraisals and under ACA 92-1(3), 92-
reappraisals) 2(3), 92-3 &
92-4 ACA
offences under the ACA Div 92 ACA Transferred to Part 3 RPA
ACQSCA triggered: 74B
& 74C
ACQSCA
Investigation civil penalty provision n/a New power Part 3 RPA
powers, under Div 29A of the conferred triggered: 92-3
under ACA under ACA & 92-4 ACA
warrant
offences under the ACA Div 92 ACA Transferred to Part 3 RPA
ACQSCA triggered: 74D
& 74E
ACQSCA
Notice aged care responsibilities Div 93 ACA Transferred to Conferred under
powers under Chapter 4 of the ACQSCA Part 8A
ACA ACQSCA
records kept under Part 6.3
of the ACA
23
Part 6.4 ACA The Bill
Regulatory Provisions subject to
powers regulatory powers Current Effect of Corresponding
provisions amendments provisions
Notice applications for approval Div 93 ACA Not n/a
powers, of provider under the ACA transferred or
cont'd reproduced
other applications made Div 93 ACA Reproduced Div 93 ACA
under the ACA or TA under ACA
claims for payments under
Chapter 3 of the ACA or
TA
appraisals/reappraisals
under Part 2.4 of the ACA
conditions of a grant under
Chapter 5 of the ACA
24
Division 90 - Introduction
Section 90-1 - Simplified outline of this Part
Section 90-1 provides a simplified outline of Part 6.4.
Division 91 - Entry and search powers relating to certain applications and grants
Section 91-1 Power to enter premises and exercise search powers in relation to
certain applications and grants
Section 91-1 confers entry and search powers on authorised officers for the purposes
listed under subsection 91-1(1), including making decisions on applications under the
Aged Care Act, and determining whether the conditions to which a grant under
Chapter 5 of the Aged Care Act has been complied with. Subsection 91-1(3) limits the
power to enter premises to exercise monitoring powers under Part 2, to where entry is
authorised by the consent of the occupier.
The Regulatory Powers Act is not triggered for these purposes since Division 91 is
intended only to confer non-coercive entry and search powers. Triggering Part 2 of
the Regulatory Powers Act confers both coercive (under warrant) and non-coercive
entry and search powers. For the purposes listed under subsection 91-1(1), conferring
coercive monitoring powers would not be appropriate given these powers deal with
certain voluntary processes, where the onus is on the applicant to provide the required
information
Section 91-2 Consent
Entry into premises to exercise monitoring powers under Part 2 may be exercised with
the consent of the occupier. Section 91-2 sets out the parameters for valid consent,
providing that consent must be informed and voluntary, and the occupier remains free
to withdraw consent at any time or to consent to entry only during a certain time
period.
An authorised officer should present their identity card to the occupier before entering
the premises. If the authorised person has not done so, subsection 91-2(6) provides
that the authorised person must present their identity card upon entry, or as soon as is
reasonably practical after entering the premises.
Section 91-2 mirrors section 25 of the Regulatory Powers Act, except in relation to
paragraph 91-2(1)(b) which requires an authorised officer to inform the occupier that
the occupier has a responsibility under paragraph 63-1(1)(b) to cooperate with a
person who is performing functions or exercising powers under Part 6.4.
If the occupier of the premises is an approved provider, in refusing consent, or
withholding consent to enter and search premises, the approved provider may fail to
comply with their responsibility to cooperate under paragraph 63-1(1)(b) of the
Aged Care Act. This may result in a sanction being imposed on the approved provider
under Part 7B of the Quality and Safety Commission Act. Whether a refusal provide
to consent amounts to a failure to comply with an approved provider's responsibility
to cooperate, and results in sanctions being imposed, will depend on the
circumstances and the reasonableness of a refusal.
25
Section 91-3 Search powers
Section 91-3 sets out the search powers which may be exercised by an authorised
officer on premises entered with consent. Subsection 91-3(2), (3) and (4) also sets out
the exercise of these powers in relation to the operation of electronic equipment and
obtaining information relevant to the purposes of those listed under
subsection 91-1(1). This section is consistent with the corresponding standard
provision under sections 19 and 20 of the Regulatory Powers Act, as these relate to
the exercise of monitoring powers at premises entered with the consent of the
occupier.
Section 91-4 Asking questions and seeking production of documents
Section 91-4 empowers authorised officers to ask any person at the premises to
answer questions or produce documents. Subsection (2) requires an authorised officer
to inform an approved provider to whom a request is made that it has a responsibility
under paragraph 63-1(1)(b) of the Aged Care Act to cooperate with a person who is
performing functions or exercising powers under Part 6.4. This section reproduces the
effect of the section 91-2 of the Aged Care Act.
Division 92 - Regulatory powers
Section 92-1 Monitoring powers
Section 92-1 triggers Part 2 of the Regulatory Powers Act to provide authorised
officers with standard monitoring powers, including to enter and search premises with
the consent of the occupier or under warrant. Sections 92-1 and 92-2 enable the same
kinds of monitoring powers currently available to authorised officers under sections
91-1, 91-2, 91-3, 92-2, 92-5, 92-7 and 92-8, as they relate to the purposes listed under
para 91-1(2)(b) and (c) and 92-2(2)(b) and (c).
Monitoring powers for the other purposes listed under subsections 91-1(2) and
92-2(2) are not reproduced under new Division 92 because these either relate to
powers which are reproduced under new Division 91, or relate to functions which
transfer to the Commission under other amendments in this Bill.
Provisions subject to monitoring
Subsection (1) makes the provisions to deal with the appraisal or reappraisal of the
level of care needed by care recipients under Part 2.4 of the Aged Care Act, subject to
monitoring under Part 2 of the Regulatory Powers Act.
Information subject to monitoring
Subsection (2) makes the information given in purported compliance with a provision
under Chapter 3 of the Aged Care Act or the Transition Act also subject to monitoring
under Part 2 of the Regulatory Powers Act.
Related provisions
In addition, subsection (3) makes the civil penalty provisions under Division 29A of
the Aged Care Act related provisions, for the purposes of the monitored provisions
under subsection (1). Division 29A sets out provisions which impose civil penalties
on approved providers in relation to incorrect classifications of the level of care
needed by a care recipient.
26
As related provisions, if an authorised officer finds possible evidence of a
contravention of any of these provisions, in the course of exercising monitoring
powers to determine compliance with the requirements or appraisal or reappraisal
under section 25-3, 27-3 or 27-5, the authorised officer may secure the thing. This
power complements the investigation powers which are triggered under section 92-3
for the purposes of the civil penalty provisions under Division 29A.
The powers conferred by making the provisions under Division 29A of the Aged Care
Act related provisions are new powers not currently available under the Aged Care
Act. Given contraventions of the civil penalty provisions can arise from the same
conduct that contravenes a monitored provision, this monitoring power is necessary to
the effective administration of the civil penalty provisions under Division 29A of the
Aged Care Act.
Authorised applicant, authorised person, issuing officer, relevant chief executive and
relevant court
For the purposes of triggering Part 2 of the Regulatory Powers Act, subsection (4)
specifies authorised officers under the Aged Care Act as authorised applicants and
authorised persons under the Regulatory Powers Act; a magistrate under the
Aged Care Act as the issuing officer under the Regulatory Powers Act; the Secretary
under the Aged Care Act as the chief executive under the Regulatory Powers Act; and
the Federal Court, Federal Circuit Court and relevant court of a State or Territory with
jurisdiction in relation to matters arising under the Aged Care Act or the Transition
Act as the relevant courts under the Regulatory Powers Act.
Persons assisting
In addition, subsection (5) provides that an authorised officer may be assisted by other
persons exercising powers or performing functions under Part 2 of the Regulatory
Powers Act in relation to the monitored provisions. This provision empowers an
authorised officer to be assisted by other persons for the purposes of section 23 of the
Regulatory Powers Act. Paragraph 23(1)(a) of the Regulatory Powers Act provides
that a person exercising monitoring powers may only be assisted by another person if
that assistance is necessary and reasonable.
Authorised officers may require the assistance of persons who are not Australian
Public Service (APS) employees of the Department to monitor the conduct appraisals
or reappraisals of the level of care needed or verify the accuracy of information given
to determine payment of a subsidy or supplements, to perform functions or an
authorised officer under Part 6.4 from time to time. Given authorised officers may
require expertise from a wide range of disciplines, to monitor the conduct appraisals
or reappraisals of the level of care needed or verify the accuracy of information given
to determine payment of a subsidy or supplements, external engagement of these
persons may be an appropriate means of sourcing expertise that remains current.
Use of force in executing a warrant
Subsection (6) empowers authorised officers and persons assisting authorised officers
to use such force against things as is necessary and reasonable in the circumstances.
This reproduces the current powers available under the Aged Care Act which allows
the use of reasonable and necessary force in executing a monitoring warrant under
section 92-2.
27
The ability to use force to enter premises under a warrant in order to exercise
monitoring powers will be necessary where entry has been demanded but refused, or
where an approved provider is not present at the premises or where there is evidence
of non-compliance with a monitored provision being concealed. In these
circumstances, it may be reasonably necessary for an authorised person executing a
warrant to open locked doors, cabinets, drawers and other similar objects for the
purposes of determining whether a monitored provision under the Aged Care Act is
being complied with.
Extension to external Territories
Subsection (7) extends the same monitoring powers which apply in relation to the
monitored provisions under subsection (1) to external Territories. Subsection (1)
triggers Part 2 of the Regulatory Powers Act and section 92-2 modifies its application
to the monitored provisions specified under subsection (1).
Section 92-2 - Modifications of Part 2 of the Regulatory Powers Act
While section 91 triggers the monitoring powers under Part 2 of the Regulatory
Powers Act, section 92 modifies its application to the monitored provisions listed
under subsections 91-1(1) and (2).
Consent to entry
Subsection 92-2(2) requires an authorised officer to inform the occupier that the
occupier has a responsibility under paragraph 63-1(1)(b) to cooperate with a person
who is performing functions or exercising powers under Part 6.4, before consent is
obtained to enter premises for the purposes of monitoring compliance with a provision
under 91-1(1) or verifying whether information given in purported compliance with a
provision under 91-1(2) is correct.
If the occupier of the premises is an approved provider, in refusing consent, or
withholding consent to enter and search premises, the approved provider may fail to
comply with their responsibility to cooperate under paragraph 63-1(1)(b) of the Aged
Care Act. This may result in a sanction being imposed on the approved provider under
Part 7B of the Quality and Safety Commission Act. Whether a refusal to provide
consent amounts to a failure to comply with an approved provider's responsibility to
cooperate, and results in sanctions being imposed, will depend on the circumstances
and the reasonableness of a refusal. For example, in some circumstances it may be
reasonable to refuse consent to entry when an aged care service is experiencing an
infectious disease outbreak or where entry would be inappropriate for cultural reasons
such as the recent death of a resident.
As recipients of Commonwealth subsidies for the provision of aged care, approved
providers must accept a standard of accountability that is commensurate with the risks
of harm to the health, safety and well-being of aged care consumers. Approved
providers are therefore required to accept a statutory responsibility to cooperate when
they are approved as providers, choosing to receive a government subsidy for the care
that they propose to provide, in order to facilitate the monitoring of the quality of care
they provide to consumers.
28
Securing electronic equipment and other things
Subsection (3) increases the maximum period for which an authorised officer may
secure electronic equipment under section 21, secure things under section 22 or seek
extensions to this period under section 33 of the Regulatory Powers Act, from 24 to
48 hours. Section 21 allows authorised officers to secure electronic equipment where
there are reasonable grounds to believe it may contain data relevant to a monitored
provision and assistance is required to operate the equipment to access the data, and
that the data will be altered, concealed or destroyed if action is not taken under this
section. Section 22 allows authorised officers to secure things where there are
reasonable grounds to believe it affords evidence of the contravention of a related
provision, and that the evidence will be altered, concealed or destroyed if action is not
taken under this section.
The extended period for securing electronic equipment or things allows additional
time for an authorised officer to obtain a warrant, particularly in remote locations
where it may not be operationally possible to obtain a warrant within 24 hours.
Asking questions and seeking production of documents
Subsection (4) extends the power of authorised officers under subsection 24(2) of the
Regulatory Powers Act, to ask the occupier of the premises to answer any questions,
and produce any documents when the premises are entered with consent, including to
ask any other person on the premises. This reproduces the existing power under
section 91-2(1) of the Aged Care Act.
This is necessary given persons other than the occupier may possess information
relevant to determining compliance or verifying information given in purported
compliance with a monitored provision is being complied with or is correct. For
example, it may be relevant for an authorised officer to talk to care recipients who
reside at the premises of a residential care service, to assist in determining compliance
with provisions dealing with the appraisal or reappraisal of the level of care needed by
those care recipients.
Before asking a question or seeking the production of a document under
subsection 24(2) of the Regulatory Powers Act, subsection (5) requires an authorised
officer to inform an approved provider of the responsibility under paragraph
63-1(1)(b) to cooperate with a person who is performing functions or exercising
powers under Part 6.4 of the Aged Care Act.
Subsection (6) provides that a person is not required to comply with a request made
under section 24(2) of the Regulatory Powers Act by an authorised officer or a person
assisting. However, if the person to whom the request is made is an approved
provider, it has a responsibility under paragraph 63-1(1)(b) of the Aged Care Act to
cooperate. If an approved provider, refuses to answer a question or produce a
requested document, the approved provider may fail to comply with their
responsibility to cooperate under paragraph 63-1(1)(b) of the Aged Care Act. This
may result in a sanction being imposed on the approved provider under Part 7B of the
Quality and Safety Commission Act. Whether a refusal to provide consent amounts to
a failure to comply with an approved provider's responsibility to cooperate, and
results in sanctions being imposed, will depend on the circumstances and the
reasonableness of a refusal.
29
This responsibility is valuable not only in gaining access to aged care facilities but
also in terms of being provided with assistance in searching computers and
documents, and facilitating access to ask care recipients and their representatives
questions. The Regulatory Powers Act does not impose any similar obligations,
except in relation to the exercise of monitoring powers under a warrant where
occupiers have an obligation under section 31 to provide an authorised officer or
persons assisting with reasonable facilities and assistance for the effective exercise of
their powers.
Section 92-3 - Investigation powers
Provisions subject to investigation
Section 92-3 will confer powers of investigation on authorised officers by triggering
Part 3 of the Regulatory Powers Act. While similar kinds of powers are available
under Division 92 of the Aged Care Act, these powers are limited to investigating
contraventions of offences under the Aged Care Act at premises entered under
warrant only, and do not extend to contraventions of the civil penalty provisions under
Division 29A. Division 29A imposes a civil penalty on approved providers in relation
to the provision of false or misleading information in connection with an appraisal or
reappraisal of care recipient needs or in relation to the provision of an incorrect or
inaccurate appraisal, after having received a warning from the Secretary for having
previously submitted incorrect or inaccurate appraisals for the appraisal or reappraisal
of the level of care needed by care recipients, in the circumstances specified under
those provisions.
Authorised applicant, authorised person, issuing officer, relevant chief executive and
relevant court
For the purposes of triggering Part 3 of the Regulatory Powers Act, subsection (2)
specifies authorised officers under the Aged Care Act as authorised applicants and
authorised persons under the Regulatory Powers Act; a magistrate to be the issuing
officer under the Regulatory Powers Act; the Secretary under the Aged Care Act as
the chief executive under the Regulatory Powers Act; and the Federal Court, Federal
Circuit Court and relevant court of a State or Territory with jurisdiction in relation to
matters arising under the Aged Care Act or the Transition Act as the relevant courts
under the Regulatory Powers Act.
Persons assisting
Subsection (3) provides that an authorised officer may be assisted by other persons
exercising powers or performing functions under Part 3 of the Regulatory Powers Act.
This provision empowers an authorised officer to be assisted by other persons for the
purposes of section 53 of the Regulatory Powers Act. Paragraph 53(1)(a) of the
Regulatory Powers Act provides that a person exercising monitoring powers may only
be assisted by another person if that assistance is necessary and reasonable.
Authorised officers may require the expertise of persons who are not APS employees
of the Department to assist in determining compliance with evidential material and
related matters, such as persons with specialist clinical expertise and knowledge to
assist in determining compliance by approved providers with the civil penalty
provision relating to the provision of false or misleading information in connection
with an appraisal or reappraisal of care recipient needs or relating to the provision of
an incorrect or inaccurate appraisal. Given the wide range of expertise which may be
30
required from time to time, the external engagement of these persons may be an
appropriate means by which to engage these persons.
Use of force in executing warrant
Subsection (4) empowers authorised officers and persons assisting authorised officers
to use such force against things as is necessary and reasonable in the circumstances.
This reproduces the current powers available under the Aged Care Act which allows
the use of reasonable and necessary force in executing an offence related
(investigation) warrant under section 92-3.
The ability to use force to enter premises under a warrant in order to exercise
investigation powers will be necessary where entry has been demanded but refused, or
where an approved provider has abandoned the premises, or where depending on the
circumstances, there is a reasonable belief there is evidence of a contravention of the
civil penalty provision under Division 29A at the premises, but is being concealed. In
these circumstances, it may be reasonably necessary for an authorised person
executing a warrant to open locked doors, cabinets, drawers and other similar objects
for the purposes of seizing things which an authorised person reasonably suspects
contains evidential material of the contravention of the civil penalty provision under
the Aged Care Act.
Extension to external Territories
Subsection (4) extends the same powers of investigation which apply in relation to the
specified provisions under subsection (1) to external Territories. Subsection (1)
triggers Part 3 of the Regulatory Powers Act and section 92-4 modifies its application
to provisions specified under subsection (1).
Section 92-4 - modifications of Part 3 of the Regulatory Powers Act
While section 92-3 triggers the investigation powers under Part 3 of the Regulatory
Powers Act, section 92-4 modifies its application to the civil penalty provision under
Division 29A of the Aged Care Act.
Securing electronic equipment and other things
Subsection (2) increases the maximum period for which an authorised officer may
secure electronic equipment under section 51 of the Regulatory Powers Act or seek an
extension under section 74 of the Regulatory Powers Act. Section 51 of the
Regulatory Powers Act allows authorised officers to secure electronic equipment
where the authorised officer suspects on reasonable grounds the equipment may
contain evidential material of a kind specified in an investigation warrant, and
assistance is required to operate the equipment to access the material and that the
evidential material may be altered, destroyed or modified if action is not taken under
section 51.
The extended period for securing electronic equipment or things allows additional
time for an authorised officer to obtain a warrant, particularly in remote locations
where it may not be operationally possible to obtain a warrant within 24 hours.
Asking questions and seeking production of documents
Subsection (4) extends the power of authorised officers under subsection 54(2) of the
Regulatory Powers Act, to ask the occupier of the premises to answer any questions,
31
and produce any documents when the premises are entered with consent, to also
include asking any other person on the premises. This is necessary given persons
other than the occupier may possess information relevant to determining compliance
or verifying information given in purported compliance with the civil penalty
provision is correct. For example, it may be relevant for an authorised officer to talk
to care recipients who reside at the premises of a residential care service, to assist in
determining compliance with provisions dealing with the appraisal or reappraisal of
the level of care needed by those care recipients.
Before asking a question or seeking the production of a document under
subsection 54(2) of the Regulatory Powers Act, subsection (4) requires an authorised
officer to inform an approved provider of the responsibility under paragraph
63-1(1)(b) to cooperate with a person who is performing functions or exercising
powers under Part 6.4 of the Aged Care Act.
This responsibility is valuable in terms of ensuring authorised officers are provided
with the assistance required to efficiently search computers and documents, and
facilitate access to ask consumers and their representatives questions etc, without the
delays which would result from obtaining a warrant.
However, if the person to whom the request is made is an approved provider, it has a
responsibility under paragraph 63-1(1)(b) of the Aged Care Act to cooperate. If an
approved provider refuses to answer a question or produce a requested document, the
approved provider may fail to comply with their responsibility to cooperate under
paragraph 63-1(1)(b) of the Aged Care Act. This may result in a sanction being
imposed on the approved provider under Part 7B of the Quality and Safety
Commission Act. Whether a refusal to provide consent amounts to a failure to comply
with an approved provider's responsibility to cooperate, and results in sanctions being
imposed, will depend on the circumstances and the reasonableness of a refusal.
Division 93 - Notice to attend to answer questions etc
Division 93 will provide powers to issue notices to require persons to attend to answer
questions or produce information of documents. Given there are no standard
provisions under the Regulatory Powers Act for this kind of power, Division 93 will
confer the same kind of notice powers available under Division 93 of the Aged Care
Act. Some minor changes will be made to modernise the drafting of these provisions
and ensure consistency with A Guide to Framing Commonwealth Offences,
Infringement notices and Enforcement Powers, including separating provisions for
notices to produce from notices to attend to improve the clarity of these provisions.
Section 93-1 Notice to attend to answer questions etc. relevant to certain matters
Subsection 93-1(1) provides that a notice to produce or attend must only be issued
where there are reasonable grounds to believe the person required to produce
documents or information or answer questions has custody or control of documents,
information or knowledge relevant to the listed matters. Subsection (1) limits the use
of notices to produce or attend to information or documents relevant to appraisals and
reappraisals of the level of care needed by a care recipient under sections 25-3, 27-3
and 27-5 of the Aged Care Act, claims made by an approved provider for payment of
a subsidy under Chapter 3 of the Aged Care Act or Transition Act, applications (other
than for approval as a provider of aged care) made under the Aged Care Act or
32
Transition Act, and compliance with the conditions of a grant made under Chapter 5
of the Aged Care Act. These reflect the matters which will continue to be dealt with
under the Aged Care Act from 1 January 2020.
Subsection 93-1(2) confers the powers to issue notices to attend before an authorised
officer to answer questions, and produce information or documents. Unlike the
existing notice powers under subsection 93-1(1) of the Aged Care Act which deal
with notices to attend and produce together, under subsection (2) the Secretary may
issue notices requiring a person to either attend or produce, or both. Subsection (3)
sets out what must be contained in a notice, and subsection (4) imposes a new
requirement for a notice to provide at least 14 days within which a person must
comply. Subsection (5) provides that a person is not required to comply with a notice
given under subsection (2) if the requirement does not relate to the affairs of an
approved provider as a corporation.
Subsection (6) provides that a person that fails to comply with a notice commits an
offence. A maximum fine of 30 penalty units may be imposed for this offence.
Subsection (7) entitles a person to reasonable compensation for producing copies of
information or documents specified in a notice given under subsection (2).
Section 93-2 Attending before authorised officer to answer questions
Section 93-2 provides additional arrangements to govern the questioning of persons
under oath or affirmation. Unlike the existing notice powers under section 93-4 of the
Aged Care Act which deals with notices to attend and produce together, subsection
(1) limits the application of this section to only where a person is given a notice to
attend before an authorised officer to answer questions under subsection 93-1(2).
Subsection (2) allows an authorised officer to question a person under an oath or
affirmation, and to administer the oath or affirmation. Subsection (3) provides that an
oath or affirmation taken or made by a person is that the statements made by the
person will be true.
Subsection (4) provides that a person is not required to comply with a requirement
under subsection (2) if the requirement does not relate to the affairs of an approved
provider as a corporation.
Subsection (5) provides that a person who does not answer questions under oath or
affirmation relating to the affairs of an approved provider as a corporation, when
required by an authorised officer commits an offence. A maximum fine of 30 penalty
units may be imposed for this offence.
Division 94 - Appointment of authorised officers
Division 94 provides for the appointment of authorised officers for the purposes of
exercising powers or performing functions across both the Regulatory Powers Act and
the Aged Care Act and the issuing of identity cards which effectively avoids the need
for an officer to carry more than one card while exercising powers for either of these
purposes.
33
Section 94-1 Authorised officers must carry identity card
Section 94-1 requires authorised officers to carry their identity cards with them at all
times when performing functions or exercising powers to monitor the provisions
which do not trigger the Regulatory Powers Act - i.e. the provisions subject to
Division 91. The requirements under section 94-1 are intended to complement similar
requirements for carrying identity cards under subsections 35(6) and 76(6) of the
Regulatory Powers Act which apply in relation to the provisions that trigger the
Regulatory Powers Act under Division 92. Taken together, this means that authorised
officers will be required to carry their identity cards when exercising entry and search
powers under Division 91 or monitoring or investigation powers under Parts 2 or 3 of
the Regulatory Powers Act.
94-2 Appointment of authorised officers
Section 94-2 deals with the appointment of authorised officers. Subsection 94-2(1)
provides that the Secretary may appoint a person as an authorised officer, for the
purposes of Part 6.4. Under Part 6.4, Division 91 confers powers on authorised
officers to administer provisions which do not trigger the Regulatory Powers Act, and
Division 92 confers powers on authorised officers for the enforcement provisions
which trigger the Regulatory Powers Act.
Further, subsection 94-2(1) limits the persons who may be appointed as an authorised
officer to an APS employee of the Department. An APS employee of the Department
is intended to apply to the same category of persons who may be appointed by the
Secretary as an authorised officer as described under section 90-3 of the Aged Care
Act. It is consistent with Australian Government policy to limit the appointment of
authorised officers who exercise coercive powers to Commonwealth employees given
these officers are subject to a range of accountability mechanisms by virtue of their
employment.
Subsection 94-2(2) prevents the Secretary from appointing persons as authorised
officers, unless the Secretary is satisfied that the person has suitable training or
experience to properly perform the functions, or exercise the powers, of an authorised
officer. While no such requirement currently exists under the Aged Care Act, this is
consistent with Australian Government policy and appropriate given authorised
officers will exercise coercive powers.
Subsection 94-2(3) provides that an authorised officer must comply with the
directions of the Secretary in relation to an authorised officer's exercise of powers or
the performance of functions. Subsection 94-2(4) is included to assist readers
understand the status of a direction given by the Secretary is not a legislative
instrument within the meaning of subsection 8(1) of the Legislation Act 2003, and is
not intended as an exemption from that Act.
Item 30 - paragraph 95C-1(3)(a)
This item repeals and substitutes the reference to the Federal Court of Australia with
the Federal Court, which will be defined in Schedule 1, by amendment under item 35
of this Schedule.
34
Item 31 - section 96-1 (table item 22)
This item repeals item 22, to remove the Sanctions Principles as one of the legislative
instruments which the Minister may make under section 96-1.
Item 32 and 33 - subparagraph 96-8(1)(b)(ii) and subsection 96-8(6) (note)
These items omit and substitute references to the Secretary, with the Quality and
Safety Commissioner for the purposes of the administration of the reporting of
reportable assaults.
Items 34, 35, 36, 37 and 38 - Clause 1 of Schedule 1
These items amend or insert various definitions in the dictionary under Schedule 1 of
the Aged Care Act, for the purposes of exercising powers under Part 6.4 of the
Aged Care Act.
In addition, item 38 repeals the definition of section 67-5 notice time, which relates to
the function under Part 4.4 which will be repealed under item 26 of Schedule 2.
Aged Care Quality and Safety Commission Act 2018
Items 39 and 40 - section 6
Section 6 of the Quality and Safety Commission Act provides a simplified outline of
the matters that are dealt with under this Act.
Item 39 will amend section 6 to outline the additional functions of imposing sanctions
on approved providers and lifting sanctions and ensuring compliance with the aged
care responsibilities of approved providers and related provisions, which will be
conferred under the Quality and Safety Commission Act by amendments set out under
this Schedule.
Item 40 will make a consequential amendment to the last paragraph of section 6, to
remove the part of that paragraph which will be made redundant, by the amendment
under item 39.
Items 41, 42, 43, 44, 45 - section 7
These items insert, amend or repeal a number of definitions related to the exercise of
powers under Parts 7B, 8 and 8A.
Items 46 - section 14
Section 14 of the Quality and Safety Commission Act provides a simplified outline of
the Part 3 of this Act. Part 3 deals with matters relating to the Commissioner,
including the Commissioner's functions and appointment.
This item will amend section 14 to outline the additional functions of imposing
sanctions and lifting sanctions conferred by Part 7B, and ensuring compliance with
the aged care responsibilities and related provisions, such as those conferred by Part
8A of the Quality and Safety Commission Act. These additional functions will be set
out under subsection 16(1).
Item 47 - paragraph 16(1)(b)
Subsection 16(1) of the Quality and Safety Commission Act sets out the functions of
the Commissioner, that include (among others) the consumer engagement functions,
35
the complaints functions, the regulatory functions and the education functions. This
item will include under subsection 16(1), the additional functions of imposing
sanctions and lifting sanctions conferred by Part 7B, and ensuring compliance with
the aged care responsibilities and related provisions, such as those conferred by
Part 8A of the Quality and Safety Commission Act. (Part 7B will be inserted by
item 22 of Schedule 2 and Part 8A will be inserted by item 29 of Schedule 2 of this
Bill).
Item 48 - section 52
This item inserts a paragraph to section 52 to specify additional requirements for
annual reporting by the Commissioner as a consequence of transferring the
Secretary's function of imposing sanctions on and lifting sanctions from approved
providers under Part 4.4 of the Aged Care Act to the Commissioner under Part 7B of
the Quality and Safety Commission Act. Similar reporting requirements apply in
relation to requirements for reporting about the imposition of sanctions under Part 4.4
under paragraph 63-2(g) of the Aged Care Act, which will be repealed.
Items 49 and 51 - paragraphs 61(1)(a) to (g), (h) and (i)
These items correct a typographical error by substituting 'and' with 'or' in relation to
the listed grounds of permitted disclosures of protected information under subsection
61(1).
Item 50 - After paragraph 61(1)(g)
This item inserts an additional ground of permitted disclosure of protected
information under subsection 61(1) to enable disclosures to be made to eligible
advisors appointed in accordance with a notice given under section 63U, for the
purposes of assisting an approved provider to comply with aged care responsibilities.
Personal information about the care and services provided by an approved provider to
its individual care recipients may be acquired in the course of exercising regulatory
powers under the Act to determine whether an approved provider is complying with
its aged care responsibilities. Disclosure of this information to an eligible advisor is
reasonably necessary to protecting care recipients by assisting an approved provider to
address failures in its provision of quality of care and services. For example, this
information will inform how an eligible advisor may best guide and assist an
approved provider in the day to day delivery and management of nursing services to
individual care recipients.
The disclosure of personal information under paragraph 61(1)(g) is also proportionate
given that a notice requiring an approved provider to appoint an eligible advisor under
section 63U is reserved for serious cases of non-compliance where the Commissioner
is considering revocation of approval.
Item 52 - Before Part 8
This item will insert Part 7B into the Quality and Safety Commission Act to confer on
the Commissioner the additional functions of imposing sanctions on, and lifting
sanctions from, approved providers as part of transferring these functions from the
Secretary under Part 4.4 of the Aged Care Act.
36
Part 7B of the Quality and Safety Commission Act will also make some minor
modifications to the functions under Part 4.4 of the Aged Care Act which will
enhance the Commissioner's ability to deal with non-compliance, before sanctions
may be imposed. In particular, Division 3 of Part 7B will streamline the procedures
under sections 67-2 and 67-3 of the Aged Care Act which must be followed before
sanctions may be imposed, while providing the Commissioner with greater flexibility
to pursue remedial actions of the kind under sections 67-4 or 66-2 to address non-
compliance.
Part 7B - Sanctions for non-compliance with aged care responsibilities of
approved providers
Part 7B provides for the performance of the Commissioner's function of imposing
sanctions on an approved provider for non-compliance with aged care responsibilities
under the Aged Care Act, and exercising powers related to this function. These
include requiring an approved provider to give an undertaking about remedying non-
compliance or to agree to take certain actions if revocation is being considered as a
sanction.
Division 1 - Introduction
Section 63M - Simplified outline of this Part
Section 63M provides a simplified outline of Part 7B.
Division 2 - Imposition of sanctions by the Commissioner
Section 63N - Commissioner may impose sanctions for non-compliance with
aged care responsibilities
This section sets out the matters the Commissioner needs to be satisfied of when
making a decision to impose sanctions on an approved provider. In the first instance,
these considerations are whether the approved provider is not complying, or has not
complied; with their aged care responsibilities and that sanctions are appropriate.
Subsection 63N(2) provides that in making the decision to impose sanctions the
Commissioner must also give consideration to any related information provided by
the Secretary in relation to the approved provider's responsibilities under the Aged
Care Act relating to an approved provider's responsibilities to undertake appraisals
and reappraisals under Part 2.4 in a proper manner, and to maintain related records.
Subsection 63N(3) provides that the Commissioner must give consideration to a
number of factors in relation to the non-compliance when deciding if sanctions are the
appropriate course of action. The most important of these is if the non-compliance has
or would threaten the health, welfare of interests of care recipients the approved
provider is currently or may in the future provide care to. The Commissioner needs to
also consider the seriousness of the non-compliance and the approved provider's
previous history of non-compliance and the approved provider's commitment to
remedy the non-compliance.
Subsection 63N(5) provides the details the Commissioner must include in a notice of
a decision if a sanction is to be imposed. The Commissioner must provide a written
notice containing the decision and reasons the decision was made, stating the details
of the provider's non-compliance. The notice must contain each of the sanctions and
the effect they will have on the approved provider.
37
If the sanction is to revoke or suspend the approved provider's allocation of places
under Part 2.2 of the Aged Care Act the Commissioner must specify the number of
places the sanction involves. The date the sanction comes into effect must be included
and if the sanction is to cease this date is to also be included as well as the details of
the lifting of the sanction.
Section 63P - Period within which the revocation of approval of approved
provider must take effect in certain circumstances
This section sets out the provisions in relation to the sanction notice for the revocation
of the approved provider's approval to provide aged care services. While other types
of sanctions can come into effect on a day determined by the Commissioner, this
discretion is limited for a sanction notice to revoke approval that does not contain any
other sanctions. This type of sanction must come into effect within 14 days from the
date it is issued to the approved provider.
Section 63Q - When the revocation or suspension of allocation of places is to take
effect
This section sets out the provisions in relation to when a sanction notice is to revoke
or suspend a particular number of affected places allocated to the approved provider
takes effect. The affected places may be vacant or occupied at the time the sanction
notice is provided to the approved provider. The notice must set out the requirements
for the affected places clearly in relation to the date the sanction takes effect. The date
of effect will be different for vacant and occupied places. For a vacant place, the date
of effect will be the date the sanction takes effect. For an occupied place, this
provision means it will take effect on the day after the place becomes vacant.
Section 63R - Kinds of sanctions that can be imposed on approved providers
This section describes the types of sanctions available to the Commissioner allowing a
proportionate response to provider's non-compliance with its aged care
responsibilities. The sanctions available restrict the approved provider's service
offering, payment of subsidy or allocation of places.
The Commissioner is able to graduate the sanction in each of these circumstances. For
example if the sanction being applied is due to the approved provider not meeting
their prudential obligations, the Commissioner may restrict the use of refundable
deposits and/or accommodation bonds to being used only for limited purposes, such
as repayments.
This list of sanctions reflects the sanctions available to the Secretary under Part 4.4 of
the Aged Care Act.
Division 3 - Notices that must be given, or may be given, before sanctions are
imposed
Section 63S - Commissioner must notify approved provider of intention to
impose sanctions on the provider
Subsection 63S(1) describes the course of action the Commissioner takes when they
are satisfied a provider has not or is not complying with their aged care
responsibilities and there is no immediate and severe risk to the safety, health and
well-being of care recipients due to the approved providers non-compliance.
38
Subsections 63S(2) to 63S(4) sets out requirements for the written notice that the
Commissioner must provide an approved provider, including the detail it must contain
about the kinds of sanctions being considered in relation to its non-compliance and
what effect they are likely to have on the approved provider. The Commissioner must
also set out the reasons why sanctions are being considered, and broadly describe
what actions the approved provider is expected to undertake to remedy the non-
compliance.
The Commissioner must provide a minimum 14 days for the approved provider to
make a submission in writing in response to the notice, but the Commissioner is able
to specify a shorter timeframe to accelerate the process to address non-compliance
(e.g. by either agreement under 63T or sanctions) where it is needed or appropriate.
The 14 day timeframe is in place to ensure administrative efficiency without
undermining procedural fairness.
Section 63T - Approved provider may be required to give undertaking about
remedying non-compliance
Subsections 63T(1) to 63T(3) describes the ability of the Commissioner to, by written
notice, give a provider notice under 63N an opportunity to remedy the non-
compliance prior to a sanction being imposed on them. The Commissioner must
include in the written notice they may decide to impose one or more sanctions on the
approved provider if the approved provider does not give the required undertaking to
remedy the non-compliance or they do not comply with the undertaking they give to
the Commissioner.
Under the notice, the approved provider is required to give the Commissioner an
undertaking to remedy the non-compliance within 14 days of receiving the notice, or a
shorter period if specified by the Commissioner. The approved provider's undertaking
must acknowledge and describe their non-compliance, set out the actions they will
undertake and the timeframe they will abide by to remedy the non-compliance. The
approved provider must acknowledge that if they do not comply with the undertaking,
the Commissioner may decide to impose one or more sanctions on them.
Section 63U - Approved provider may be required to agree certain matters if
revocation of approval is being considered
This section provides for instances where the Commissioner is satisfied that an
approved provider has not complied or is not complying with their aged care
responsibilities and is considering a revocation sanction.
Where the Commissioner is considering revoking the approval of a provider as the
sanction for the non-compliance, the Commissioner is able to, by written notice,
require the approved provider to agree to take certain actions, noting that if they do
not agree, the Commissioner may revoke their approval.
An agreement under this section may cover any matters that the Commissioner
considers necessary to bring the approved provider back into compliance with its
responsibilities, and would commonly include training for staff, payment of debts, and
the appointment of an eligible adviser to assist with the clinical governance or
corporate governance of the approved provider. It might also require the approved
provider to transfer any of their allocated places to another person to provide care.
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In the circumstances outlined above, subsection (1) provides that the Commissioner
may give notice under this section, where there is an immediate and severe risk to the
safety, health and well-being of care recipients without the need to notify an approved
provider about the non-compliance under section 63S, before sanctions may be
imposed.
Alternatively, where there is not an immediate and severe risk to the safety, health and
well-being of care recipients, and the Commissioner has issued a notice under section
63S, the Commissioner may also give notice under this section in the following
additional circumstances:
- if the approved provider made submissions in response to a notice given under
section 63S and the Commissioner considers the response to be unsatisfactory
in terms of the matters listed under paragraph 63T(1)(c); or
- if the approved provider made submissions in response to a notice given under
section 63S and the Commissioner considers the response to be satisfactory in
terms of the matters listed under paragraph 63T(1)(c) and gives the approved
provider notice requiring the approved provider to give an undertaking to take
certain actions to remedy the non-compliance, and the approved provider
either:
o refuses to give an undertaking under section 63T; or
o gives an undertaking but fails to comply with the undertaking under
section 63T.
The intended effect of these provisions is to allow (but not oblige) the Commissioner
to require an approved provider to take specific actions to address the non-compliance
before their approval is revoked.
Where a provider fails to comply with an agreement entered into under section 63U,
the Commissioner is empowered to sanction the approved provider for not complying
with the agreement, without first issuing a notice under section 63S.
Division 4 - Lifting of sanctions imposed on approved providers
Section 63V - Application for lifting of sanction imposed on approved provider
This section provides that a provider may apply to the Commissioner in writing to
have their sanction lifted. The application must be made in the manner specified by
the Commissioner and accompanied by any fee specified by the Commissioner. The
Commissioner has the power to charge fees for any services provided under section
23 of the Quality and Safety Commission Act.
The approved provider can at any time withdraw their application.
Section 63W - Request for further information
This section provides for the Commissioner to be able to ask, by written notice, for
additional information from the approved provider, where they have requested that
their sanction be lifted under Section 63V. The Commissioner must specify the details
of the information they require, the timeframe that it is required to be provided within,
which would ordinarily be 28 days after the notice is given.
40
There is an opportunity for the approved provider to request an extension to the period
of time available to deliver the information. If the approved provider does not give the
Commissioner the requested information within the specified period, it is taken to be a
withdrawal of the approved provider's application for lifting of sanctions. If the
request is taken to be withdrawn the approved provider may make another application
under 63V.
Section 63X - Commissioner must decide whether to lift sanction imposed on the
approved provider
This section provides that the Commissioner must make a decision within 28 days
after receiving additional information that had been requested from the approved
provider under section 63W, or 28 days after receipt of a provider's application for the
lifting of a sanction.
In making their decision the Commissioner must consider if the approved provider is
complying with their aged care responsibilities and any other matter specified in the
rules.
Section 63Y - Notification of decision relating to lifting sanction imposed on the
approved provider
This section describes the written notice that the Commissioner must give to the
approved provider setting out their decision in relation to lifting a sanction. The notice
must be provided within 14 days after the decision has been made.
Under subsection 63Y(1), if the decision is to lift the sanction the date that the
sanction will cease to be in effect must be included and any other matters in the Rules
the Commissioner wants to bring to the approved provider's attention. A copy of the
notice is to be provided to the Secretary as soon as practicable.
Under subsection 63Y(2), if the decision is not to lift a sanction the reasons for the
decision must be included in the notice as well as the how the approved provider
applies for reconsideration of the decision. A copy of the notice is to be provided to
the Secretary as soon as practicable.
Item 53 - Part 8
This item repeals and substitutes the heading to Part 8 to reflect the inclusion of
additional powers under item 57 to support the Commissioner's new function to
determine applications for approval as a provider of aged care under Part 7A.
Part 8 - Entry and search powers relating to provider approval applications
Items 54, 55 and 56 - section 64 and Division 2 of Part 8
These items make a number of amendments to the simplified outline and the heading
of Division 2 of this part as a consequence of repealing section 73 under item 78
which currently provides for the appointment of authorised complaints officers, and
the insertion of section 75A under item 87.
Section 75A provides for the appointment of a broader category of persons, defined as
authorised officers, who are conferred regulatory powers for the purposes of the
Quality and Safety Commission Act or Commission Rules.
41
Item 57 - section 64A
This item inserts section 64A which provides authorised officers with entry and
search powers, if the Commissioner considers the exercise of these powers necessary
for the purpose under subsection 64A(1), of making decisions on applications for
approval as a provider of aged care under section 63B. Subsection 64A(3) requires an
authorised officer to obtain the consent of the occupier before entering the premises to
exercise search powers.
Section 64A confers the same kinds of monitoring powers which are available under
Part 2 of the Regulatory Powers Act. However, the Regulatory Powers Act is not
triggered for the purposes under paragraph 64A(1)(a) since section 64A is only
intended to confer entry and search powers, where entry is authorised by the consent
of the occupier and not under warrant. For the purposes of deciding applications for
approval as a provider of aged care, entry under warrant would not be appropriate
given that persons, such as applicants, have not yet been approved to receive
payments made under the Aged Care Act, and their associated obligations, and as
such, there are also no statutory provisions specifying requirements or imposing
obligations on persons which may be made subject to the powers under the
Regulatory Powers Act.
Items 58, 59, 61, 62, 63, 64, 65, 72, 73, 74, 75 and 76 - section 65, subsections
66(1), 66(5), 67(1), 67(2), 71(2) and 72(5) and paragraphs 66(6)(a), 71(1)(a),
72(1)(a) and 72(3)(a)
These items make various amendments to repurpose the operation of Part 8 to
accommodate the additional powers inserted under item 57, and facilitate the
conferral of these powers on a new broader category of persons exercising regulatory
powers, defined as authorised officers which encompasses authorised complaints
officers.
Items 60, 66, 67, 68, 69, 70 and 71 - subsections 67(2), 69(1) and 70(2) and
paragraphs 66(1)(b) and 69(1)(b)
These items update references to the current responsibility for approved providers to
cooperate with persons exercising regulatory powers under Part 8 of the Quality and
Safety Commission Act under paragraph 63-1(1)(ba) of the Aged Care Act, with a
new responsibility under item 20 that reflects the scope of the Commissioner's
regulatory functions from 1 January 2020. These references identify where the
responsibility to cooperate interacts with the exercise of certain regulatory powers
conferred under Part 8.
The new responsibility under item 20 of Schedule 2 consolidates the current
responsibility under paragraph 63-1(1)(ba) to cooperate with persons exercising
powers under Part 8 of the Quality and Safety Commission Act or performing related
functions, and the responsibility under paragraph 63-1(1)(b) to cooperate with persons
exercising powers under Part 6.4 of the Aged Care Act or performing related
functions, with a responsibility to also cooperate with persons exercising powers
under Parts 2 and 3 of the Regulatory Powers Act or performing related functions.
This single responsibility will operate across the applicable functions and powers of
the Commissioner and the Secretary.
42
Item 77 - Division 5 of Part 8 (heading)
This item repeals and substitutes the heading with a heading referring to identity
cards.
Division 5 - Identity cards
Item 78 - section 73
This item repeals section 73 which currently provides for the appointment of
authorised complaints officers. A new provision is inserted under item 87 which
provides for the appointment of a broader category of persons, exercising regulatory
powers, which subsumes authorised complaints officers. These persons are appointed
under section 75A as authorised officers for the purposes of the Quality and Safety
Commission Act, or Commission Rules or both.
In addition, item 78 item substitutes section 73 with a provision requiring authorised
officers to carry their identity cards with them at all times when performing functions
or exercising powers under Part 8 of the Quality and Safety Commission Act, i.e.
without triggering the Regulatory Powers Act. The new requirements under section 73
are intended to complement similar requirements for carrying identity cards under
subsections 35(6) and 76(6) of the Regulatory Powers Act which apply in relation to
the enforcement provisions which trigger the Regulatory Powers Act under Part 8A of
the Quality and Safety Commission Act. Taken together, this means authorised
officers will be required to carry their identity cards when exercising entry and search
powers under Part 8 of the Quality and Safety Commission Act or monitoring or
investigation powers under Parts 2 or 3 of the Regulatory Powers Act.
Items 79 to 84 - section 74
These items make various amendments to the requirements for identity cards under
section 74 of the Quality and Safety Commission Act which currently apply to both
authorised complaints officers and quality assessors. These amendments limit the
scope of the requirements under section 74 to quality assessors, as a consequence of
repealing section 73 under item 78 and the category of persons defined as authorised
complaints officers. The resulting provisions provide separate requirements for the
issuing of identity cards for quality assessors, who are registered under the
Commission Rules, to the requirements which apply under section 73.
Item 85 - After Part 8
This item will insert Part 8A into the Quality and Safety Commission Act to confer on
the Commissioner functions and powers relating to the enforcement of compliance
with aged care responsibilities and related provisions under Part 8A, as part of
transferring the similar functions and powers from the Secretary and authorised
officers of the Department under Part 6.4 of the Aged Care Act.
Specifically, these include monitoring and investigation powers conferred under Part
6.4 of the Aged Care Act for the purposes of:
- assessing compliance with the responsibilities of approved providers and their
record keeping obligations under Part 6.3 (see sections 91-1, 91-2, 91-3, 92-2,
92-5, 92-7, 92-8), and
- investigating the commission of offences under the Aged Care Act, which are
related to these responsibilities (sections 92-3, 92-4, 92-6, 92-7, 92-8).
43
Part 8A--Enforcement of responsibilities of approved providers
Division 1 - Introduction
Section 74A Simplified outline of this Part
Section 74A provides a simplified outline of Part 8A.
Division 2 - Regulatory powers
Section 74B Monitoring powers
Section 74 will trigger Part 2 of the Regulatory Powers Act to provide authorised
officers with standard monitoring powers, including to enter and search premises with
the consent of the occupier or under warrant.
Provisions subject to monitoring
Subsections 74B(1) and (3) provides that the provisions under Chapter 4 of the Aged
Care Act, are subject to monitoring under Part 2 of the Regulatory Powers Act and
provisions referred to in Chapter 4 are related provisions for that purpose. Chapter 4
of the Aged Care Act imposes administrative responsibilities on approved providers.
Subsection 74B(1) triggers the monitoring powers under Part 2 of the Regulatory
Powers Act for the purposes of determining whether these responsibilities are being
complied with.
Information subject to monitoring
In addition, subsection 74B(2) makes information given in purported compliance with
a monitored provision under subsection (1) or a related provision under subsection (3)
under subsection (1), also subject to monitoring under Part 2 of the Regulatory
Powers Act, for the purposes of verifying whether this information is correct.
Related provisions
Subsections 74B(3) provides the provisions referred to in Chapter 4 of the Aged Care
Act, are also provisions related to the monitoring of a responsibility or the
responsibilities under Chapter 4 of the Aged Care Act. As a related provision,
subsection (3) enables an authorised officer to secure anything the officer finds that
could be evidence of a contravention of a responsibility or responsibilities, in the
course of exercising monitoring powers to determine compliance with a
responsibility.
Authorised applicant, authorised person, issuing officer, relevant chief executive and
relevant court
For the purposes of triggering Part 2 of the Regulatory Powers Act, subsection (4)
specifies authorised officers under the Aged Care Act as authorised applicants and
authorised persons under the Regulatory Powers Act; a magistrate under the Aged
Care Act as the issuing officer under the Regulatory Powers Act; the Commissioner
under the Quality and Safety Commission Act as the chief executive under the
Regulatory Powers Act; and the Federal Court, Federal Circuit Court and relevant
court of a State or Territory with jurisdiction in relation to matters arising under the
Aged Care Act or the Transition Act as the relevant courts under the Regulatory
Powers Act.
44
Persons assisting
In addition, subsection (5) provides an authorised officer may be assisted by other
persons exercising powers or performing functions under Part 2 of the Regulatory
Powers Act in relation to a monitored provision. This provision empowers an
authorised officer to be assisted by other persons for the purposes of section 23 of the
Regulatory Powers Act. Paragraph 23(1)(a) of the Regulatory Powers Act provides a
person exercising monitoring powers may only be assisted by another person if
assistance is necessary and reasonable.
Authorised officers will require the assistance of persons who are not staff members
of the Commission to perform functions or exercise the powers of an authorised
officer under the Quality and Safety Commission Act and Rules from time to time.
Given authorised officers may require expertise from a wide range of disciplines and
specialist clinical experience to determine compliance with the responsibilities of
approved providers, ranging from the provision of quality of care, the protection of
user rights and prudential compliance, external engagement of these persons may be
an appropriate means of sourcing expertise to ensure it remains current.
Use of force in executing a warrant
Subsection (6) empowers an authorised officer and persons assisting authorised
officers to use such force against things as is necessary and reasonable in the
circumstances. This reproduces the current powers available under the Aged Care Act
which allows the use of reasonable and necessary force in executing a monitoring
warrant under section 92-2.
The ability to use force to enter premises under a warrant in order to exercise
monitoring powers will be necessary where entry has been demanded but refused, or
where an approved provider has abandoned the premises or where there is evidence of
non-compliance with a monitored provision being concealed. In these circumstances,
it may be reasonably necessary for an authorised person executing a warrant to open
locked doors, cabinets, drawers and other similar objects for the purposes of
determining whether a monitored provision under the Aged Care Act is being
complied with.
Section 74C - Modifications of Part 2 of the Regulatory Powers Act
While section 74B will trigger the monitoring powers under Part 2 of the Regulatory
Powers Act, section 74C will modify its application to the monitored provisions listed
under subsections 74B(1), (2) and (3).
Consent to entry
Subsection 74C(2) requires an authorised officer to inform the occupier that the
occupier has a responsibility under paragraph 63-1(1)(b) to cooperate with a person
who is performing functions or exercising powers under Part 8A, before consent is
obtained to enter premises for the purposes of monitoring compliance with a provision
under 74B(1) or verifying whether information given in purported compliance with a
provision under 74B(2) is correct.
If the occupier of the premises is an approved provider, in refusing consent, or
withholding consent to enter and search premises, the approved provider may fail to
comply with their responsibility to cooperate under paragraph 63-1(1)(b) of the Aged
45
Care Act. This may result in a sanction being imposed on the approved provider under
Part 7B of the Quality and Safety Commission Act. Whether a refusal to provide
consent amounts to a failure to comply with an approved provider's responsibility to
cooperate, and results in sanctions being imposed, will depend on the circumstances
and the reasonableness of a refusal. For example, in some circumstances it may be
reasonable to refuse consent to entry when an aged care service is experiencing an
infectious disease outbreak or where entry would be inappropriate for cultural reasons
such as the recent death of a resident. In practice, it is expected that entry to premises
would be negotiated between authorised officers and approved providers to facilitate
access on reasonable terms.
Item 20 of Schedule 2 imposes a responsibility on approved providers to cooperate
with authorised officers exercising powers listed under paragraph 63-1(1)(b). This
responsibility is vital to the Commission's ability to uncover and quickly respond to
non-compliance, with the cooperation of approved providers. This is important to the
Commission's ability to protect consumers, particularly in dealing with non-
compliance that places the health, well-being and safety of consumers at an immediate
or severe risk.
As recipients of Commonwealth subsidies for the provision of aged care, approved
providers must accept a standard of accountability commensurate with the risks of
harm to the well-being, health and safety of aged care consumers. Approved providers
are therefore required to accept a statutory responsibility to cooperate when they are
approved as providers, choosing to receive a government subsidy for the care they
propose to provide, in order to facilitate the monitoring of the quality of care they
provide to consumers. Given the potential relative disparity in power and control
approved providers exercise over aged care consumers, particularly in a residential
care setting, imposing this responsibility is necessary to both the Commission's
quality assurance and effective monitoring of approved providers.
In relation to the Commission's quality assurance activities, the Commission audits
and reviews the quality of care provided by approved providers in reliance on
monitoring powers, which are exercised with the consent and cooperation of approved
providers (who are occupiers). These assessments are conducted to identify areas of
improvement (e.g. see sections 57 and 68 of the Commission Rules) and to accredit
residential care services based on whether approved providers will undertake
continuous improvement, against the applicable standards (e.g. see sections 29 and 41
of the Commission Rules). The cooperation of approved providers is appropriate to
undertaking assessments for purposes which include assisting, educating and
encouraging approved providers implement continuous of improvement against the
applicable standards (e.g. see section 5 of the Commission Rules).
In relation to the Commission's compliance monitoring activities, exercising
monitoring powers at premises entered with the consent and cooperation of occupiers
who are approved providers is also the principal means by which the Commission
assesses the quality of care provided by providers, and discovers potential concerns
with non-compliance with their legislated responsibilities. While triggering Part 2 of
the Regulatory Powers Act in its current form would allow a monitoring warrant to be
obtained where consent to enter premises is refused, in the absence of a responsibility
to cooperate this regime would be less effective in terms of the Commission's ability
46
to protect the quality of care and quality of life of aged care service recipients since it
would lead to significant delays before access to the aged care service can occur.
In addition, the responsibility to cooperate is valuable not only in gaining access to
aged care facilities but also in terms of being provided with assistance in searching
computers and documents, and facilitating access to ask consumers and their
representatives questions etc as key sources of information through which
non-compliance can be feasibly discovered.
Securing electronic equipment and other things
Subsection 74C(3) increases the maximum period for which an authorised officer may
secure electronic equipment under section 21, secure things under section 22 or seek
extensions to this period under section 33 of the Regulatory Powers Act, from 24 to
48 hours. Section 21 allows authorised officers to secure electronic equipment where
there are reasonable grounds to believe it may contain data relevant to a monitored
provision and assistance is required to operate the equipment to access the data, and
that the data will be altered, concealed or destroyed if action is not taken, under this
section. Section 22 allows authorised officers to secure things where there are
reasonable grounds to believe it affords evidence of the contravention of a related
provision, and the evidence will be altered, concealed or destroyed if action is not
taken under this section.
The extended period for securing electronic equipment or things allows additional
time for an authorised officer to obtain a warrant, particularly in remote locations
where it may not be possible to obtain a warrant within 24 hours.
Asking questions and seeking production of documents
Subsection 74C(4) extends the power of authorised officers under subsection 24(2) of
the Regulatory Powers Act, to ask the occupier of the premises to answer any
questions, and produce any documents when the premises are entered with consent, to
also include asking any other person on the premises. This modification reproduces
the effect of the existing power under section 91-2(1) of the Aged Care Act.
The ability to ask any person on the premises to answer questions or produce
documents is necessary to enable authorised officers of the Commission to gather
information from consumers and their nominated representatives, who may be reside
at the premises of an approved provider of a residential care service or the premises at
which a home care service is provided. Given the responsibilities of approved
providers are primarily directed at protecting consumers and the quality of care they
receive, consumers and their nominated representatives provide a critical source of
information for assessing an approved provider's compliance with its responsibilities,
and verifying whether information given in purported compliance with their
responsibilities is correct.
Before asking a question or seeking the production of a document under subsection
24(2) of the Regulatory Powers Act, subsection 74C(5) requires an authorised officer
to inform an approved provider it has a responsibility under paragraph 63-1(1)(b) to
cooperate with a person who is performing functions or exercising powers under Part
8A of the Quality and Safety Commission Act.
47
Subsection 74C(6) provides that a person however is not required to comply with a
request made under section 24(2) of the Regulatory Powers Act by an authorised
officer or a person assisting.
However, if the person to whom the request is made is an approved provider, it has a
responsibility under paragraph 63-1(1)(b) of the Aged Care Act to cooperate. If an
approved provider, refuses to answer a question or produce a requested document, the
approved provider may fail to comply with their responsibility to cooperate under
paragraph 63-1(1)(b) of the Aged Care Act. This may result in a sanction being
imposed on the approved provider under Part 7B of the Quality and Safety
Commission Act. Whether a refusal to provide consent amounts to a failure to comply
with an approved provider's responsibility to cooperate, and results in sanctions being
imposed, will depend on the circumstances and the reasonableness of a refusal.
Section 74D - Investigation powers
Provisions subject to investigation
Section 74D will confer powers of investigation on authorised officers by triggering
Part 3 of the Regulatory Powers Act. Section 74D of the Quality and Safety
Commission Act will reproduce the same kinds of powers conferred on authorised
officers in relation to offence related warrants under section 92-3 and 92-4 of the
Aged Care Act. Triggering the powers under Part 3 of the Regulatory Powers Act is
necessary to the effective administration of the offence provisions.
Given the commission of an offence subject to the investigation powers under Part 3
of the Regulatory Powers Act either amounts to a failure to comply with a
responsibility, or is related to a failure to comply with a responsibility under Chapter 4
of the Aged Care Act, responsibility for these powers is transferred to the
Commission since it complements the Commissioner's other functions of enforcing
the responsibilities under Part 8A (specifically 74B and 74C) and imposing sanctions
for non-compliance with these responsibilities under Part 7B of the Quality and Safety
Commission Act.
Authorised applicant, authorised person, issuing officer, relevant chief executive and
relevant court
For the purposes of triggering Part 3 of the Regulatory Powers Act, subsection 74D(2)
specifies authorised officers under the Quality and Safety Commission Act as
authorised applicants and authorised persons under the Regulatory Powers Act; a
magistrate under the Quality and Safety Commission Act as the issuing officer under
the Regulatory Powers Act; the Commissioner under the Quality and Safety
Commission Act as the chief executive under the Regulatory Powers Act; and the
Federal Court, Federal Circuit Court and relevant courts of a State or Territory with
jurisdiction in relation to matters arising under the Quality and Safety Commission
Act, Aged Care Act or the Transition Act as the relevant courts under the Regulatory
Powers Act.
Persons assisting
Subsection 74D(3) provides that an authorised officer may be assisted by other
persons exercising powers or performing functions under Part 3 of the Regulatory
Powers Act in relation to evidential material that relates to an offence under the Aged
Care Act or Quality and Safety Commission Act, as specified under
48
subsection 74D(1). This provision empowers an authorised officer to be assisted by
other persons for the purposes of section 53 of the Regulatory Powers Act.
Paragraph 53(1)(a) of the Regulatory Powers Act provides a person exercising
monitoring powers may only be assisted by another person if assistance is necessary
and reasonable.
Authorised officers will require the assistance of persons who are not staff members
of the Commission to perform functions or exercise the powers of an authorised
officer under the Quality and Safety Commission Act and Commission Rules from
time to time. Given authorised officers may require expertise from various disciplines
to search and seize evidential material that affords evidence of the commission of an
offence, ranging from the protection of user rights to prudential compliance, external
engagement of these persons may be an appropriate means of sourcing expertise to
ensure it remains current.
Use of force in executing warrant
Subsection 74D(4) empowers authorised officers and persons assisting authorised
officers to use such force against things as is necessary and reasonable in the
circumstances. This reproduces the current powers available under the Aged Care Act
which allows the use of reasonable and necessary force in executing an offence
related (investigation) warrant under section 92-3.
The ability to use force to enter premises under a warrant in order to exercise
investigation powers will be necessary where entry has been demanded but refused, or
where an approved provider has abandoned the premises, or where depending on the
circumstances, there is a reasonable belief there is evidence of an offence at the
premises, but is being concealed. In these circumstances, it may be reasonably
necessary for an authorised person executing a warrant to open locked doors, cabinets,
drawers and other similar objects for the purposes of seizing things which an
authorised person reasonably suspects contains evidential material of the
contravention of the civil penalty provision under the Aged Care Act.
Section 74E - modifications of Part 3 of the Regulatory Powers Act
While section 74D will trigger the investigation powers under Part 3 of the Regulatory
Powers Act, section 74E will modify its application to the offences under the Aged
Care Act and the Quality and Safety Commission Act.
Securing electronic equipment and other things
Subsection 74E(2) increases the maximum period for which an authorised officer may
secure electronic equipment under section 51 of the Regulatory Powers Act or seek an
extension under section 74 of the Regulatory Powers Act. Section 51 of the
Regulatory Powers Act allows authorised officers to secure electronic equipment
where the authorised officer suspects on reasonable grounds the equipment may
contain evidential material of a kind specified in an investigation warrant, and
assistance is required to operate the equipment to access the material and that the
evidential material may be altered, destroyed or modified if action is not taken under
section 51.
49
The extended period for securing electronic equipment or things allows additional
time for an authorised officer to obtain a warrant, particularly in remote locations
where it may not be operationally possible to obtain a warrant within 24 hours.
Asking questions and seeking production of documents
Subsection 74E(4) extends the power of authorised officers under subsection 54(2) of
the Regulatory Powers Act, to ask the occupier of the premises to answer any
questions, and produce any documents when the premises are entered with consent, to
also include asking any other person on the premises. This modification reproduces
the effect of the existing power under section 92-7 of the Aged Care Act.
This modification is necessary given persons other than the occupier may possess
information relevant to determining compliance or verifying information given in
purported compliance with the civil penalty provision is correct. For example,
speaking with care recipients of a residential care service may be critical to searching
or seizing materials which afford evidence of the commission of an offence under
subsection 52P-2(4) of the Aged Care Act. Subsection 52P-2(4) creates an offence for
former approved providers who fail to refund a refundable deposit balance paid by a
care recipient at the particular times, after the provider stops providing care to the care
recipient, such as where a care recipient dies or has left the service. Asking care
recipients who reside at the premises of a residential care service questions may be
critical to locating or obtaining evidential materials in relation to critical elements of
such an offence.
Division 3 - Notice to attend to answer questions etc
Division 3 provides powers to issue notices to require persons to attend to answer
questions or produce information of documents. Given there are no standard
provisions under the Regulatory Powers Act for this kind of power, Division 3
reproduces the existing notice powers in the Aged Care Act with minor changes to
modernise the drafting of these provisions consistent with A Guide to Framing
Commonwealth Offences, Infringement notices and Enforcement Powers. This largely
includes separating provisions for notices to produce from notices to attend to
improve the clarity of these provisions.
Section 74F Notice to attend to answer questions etc. relevant to whether aged
care responsibility is being complied with
Subsection 74F(1) provides that a notice to produce or attend must only be issued
where there are reasonable grounds to believe that the person required to produce
documents or information or answer questions has custody or control of documents,
information or knowledge, relevant to the listed matters. Subsection 74F(1) limits
these to matters relevant to an approved provider or former provider's compliance
with an aged care responsibility, which reproduces the existing powers under
Division 93 of the Aged Care Act, as these relate to assessing whether an approved
provider or former approved provider has complied with its responsibilities under
Chapter 4 of the Aged Care Act.
However, the existing powers to issue notices to attend or produce under Division 93
has not being reproduced under section 74F for the purposes of assessing an
application for approval as a provider of aged care. Conferring coercive investigation
like powers would not be appropriate given these powers deal with persons who have
50
not yet been approved to receive the benefit of care or payments made under the Aged
Care Act, and made subject to any obligations related to these payments or benefits.
Subsection 74F(2) sets out what must be contained in a notice, and subsection (3)
imposes a new requirement for a notice to provide at least 14 days within which a
person must comply. Subsection (4) provides that a person is not required to comply
with a notice given under subsection (2) if the requirement does not relate to the
affairs of an approved provider (or former approved provider) as a corporation.
Subsection (5) provides that a person who fails to comply with a notice that specifies
requirements which relate to the affairs of an approved provider (or former approved
provider) that is a corporation, commits an offence. A maximum fine of 30 penalty
units may be imposed for this offence.
Subsection (6) entitles a person to reasonable compensation for producing copies of
information or documents specified in a notice given under subsection (2).
Section 74G - Attending before authorised officer to answer questions
Section 74G provides additional arrangements to govern the questioning of persons
under oath or affirmation. Unlike the existing notice powers under section 93-4 which
deals with notices to attend and produce together, subsection 74G(1) limits the
application of this section to only where a person is given a notice to attend before an
authorised officer to answer questions under subsection 74G(2). Subsection 74G(2)
allows an authorised officer to question a person under an oath or affirmation, and to
administer the oath or affirmation. Subsection 74G(3) provides that an oath or
affirmation taken or made by a person is that the statements made by the person will
be true.
Subsection 74G(4) provides that a person is not required to comply with a
requirement under subsection (2) if the requirement does not relate to the affairs of an
approved provider (or former approved provider) as a corporation.
Subsection 74G(5) provides that a person that does not answer questions under oath or
affirmation which relate to the affairs of an approved provider (or former approved
provider) that is a corporation, when required by an authorised officer commits an
offence. A maximum fine of 30 penalty units may be imposed for this offence.
Part 9 - Miscellaneous
Items 86 and 87 - section 75A
These items incorporate a new section 75A and heading dealing with the appointment
of authorised officers. This replaces the existing section 73 of the Quality and Safety
Commission Act, which provided for the appointment of authorised complaints
officers, and which is repealed under item 78 of Schedule 2. The concept of an
authorised complaints officer will be subsumed within the new and broader category
of authorised officer, established under section 75A, which deals with all other
officers of the Commission appointed for the purposes of exercising regulatory
powers whether these are conferred under the Quality and Safety Commission Act,
the Commission Rules or the Regulatory Powers Act. An authorised officer appointed
under section 75A may therefore exercise the powers conferred on authorised officers
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under Part 8 of the Quality and Safety Commission Act, and the monitoring and
investigation powers triggered under Parts 2 and 3 of the Regulatory Powers Act.
Further, subsection 75A(1) limits the persons who may be appointed as an authorised
officer to a person who is a staff member of the Commission, consistent with the
persons who may be authorised officers under the Regulatory Powers Act. It is
consistent with Australian Government policy to limit the appointment of authorised
officers who exercise coercive powers to Commonwealth employees given these
officers are subject to a range of accountability mechanisms by virtue of their
employment.
Subsection 75A(2) prevents the Commissioner from appointing persons as authorised
officers, unless the Commissioner is satisfied the person has suitable training or
experience to properly perform the functions, or exercise the powers, of an authorised
officer.
Subsection 75A(3) provides that an authorised officer must comply with the directions
of the Commissioner in relation to an authorised officer's exercise of powers or the
performance of functions. Subsection 75A(4) is included to assist readers understand
the status of a direction given by the Commissioner is not a legislative instrument
within the meaning of subsection 8(1) of the Legislation Act 2003, and is not intended
as an exemption from that Act.
Items 88, 89 and 90 - subsection 76(1)
These items make various changes to section 76 to specifically allow delegations to be
made in relation the functions or powers under Part 7B, to both staff members of the
Commission, and an APS employee in the Department. This is intended to allow
delegations to be made to APS employees in the Department to enforce certain aged
care responsibilities, which support the administration of certain functions under Parts
2.4 and 6.3 of the Aged Care Act.
Item 91
This item inserts a note at the end of section 76 regarding sections 34AA to 34A of
the Acts Interpretation Act 1901. These sections provide for matters related to the
delegations of powers and functions that will apply to any delegations made by the
Commissioner.
Aged Care (Transitional Provisions) Act 1997
Items 92, 93, 94 - subsection 42-2(1) and paragraphs 57-2(1)(o) and 57A-2(1)(m)
These items make various consequential amendments to the Aged Care (Transitional
Provisions) Act 1997 which update references in relation to the sanctions which may
be imposed under 7B of the Quality and Safety Commission Act and other related
references.
Social Security Act 1991
Item 95 - subparagraphs 11A(8)(a)(i), (b)(i) and (ba)(i)
This item makes various consequential amendments to the Social Security Act 1991
which update references in relation to the sanctions which may be imposed under
Part 4.4 with Part 7B of the Quality and Safety Commission Act.
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Veteran's Entitlements Act 1986
Item 96 - subparagraphs 5LA(8)(a)(i), (b)(i) and (ba)(i)
This item makes various consequential amendments to the Veteran's Entitlements
Act 1986 which update references in relation to the sanctions which may be imposed
under Part 4.4 with Part 7B of the Quality and Safety Commission Act.
Schedule 3 - Reconsideration and review of decisions
Aged Care Act 1997
Item 1 - section 85-1
This item will repeal items 1, 3, 54 and 55 of the table of reviewable decisions in
section 85-1 of the Aged Care Act to abolish the Secretary's function relating to the
reconsideration of these reviewable decisions, as part of transferring these functions
for similar kinds of decisions to the Commissioner under Part 8B of the Quality and
Safety Commission Act. Part 8B of Quality and Safety Commission Act is inserted by
item 6 of Schedule 3.
Aged Care Quality and Safety Commission Act 2018
Item 2 - paragraph 6(f)
Section 6 of the Quality and Safety Commission Act provides a simplified outline of
the matters that dealt with under this Act. This item will amend section 6 to outline
the additional function of reconsidering and reviewing certain decisions, which will
be conferred under the Quality and Safety Commission Act by amendments set out
under this Schedule.
Item 3 - section 7
This item provides definitions for the purposes of reconsidering and reviewing certain
decisions which will be conferred under the Quality and Safety Commission Act by
amendments set out under this Schedule.
Item 4 - paragraph 14(f)
Section 14 of the Quality and Safety Commission Act provides a simplified outline of
the Part 3 of this Act. Part 3 deals with matters relating to the Commissioner,
including the Commissioner's functions and appointment. This item will amend
section 14 to outline the additional function of reconsidering and reviewing certain
decisions, to be set out under subsection 16(1).
Items 5 - paragraph 16(1)(f)
Subsection 16(1) of the Quality and Safety Commission Act sets out the functions of
the Commissioner, that include (among others) the consumer engagement functions,
the complaints functions, the regulatory functions and the education functions.
This item will include under subsection 16(1), the additional function of reconsidering
and reviewing certain decisions conferred by Part 8B of the Quality and Safety
Commission Act, which will be inserted under item 6 of Schedule 3.
The decisions which will be subject to reconsideration and review relate to the
functions of approving providers of aged care, and imposing and lifting sanctions on
approved provider under Parts 7A and 7B of the Quality and Safety Commission Act.
Parts 7A and 7B are inserted under item 64 of Schedule 1 and item 52 of Schedule 2,
respectively.
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Item 6 - Before Part 9
This item will insert Part 8B into the Quality and Safety Commission Act to confer on
the Commissioner functions relating to the reconsideration and review of certain
decisions, connected to the additional functions of approving providers and imposing
sanctions on approved providers, as part of transferring these functions from the
Secretary under Part 6.1 of the Aged Care Act.
Part 8B - Reconsideration and review of decisions
Division 1 - Introduction
Section 74H - Simplified outline of this Part
Section 74H provides a simplified outline of Part 8B.
Division 2 - Reconsideration and review of decisions
Section 74J - Reviewable decisions and affected persons
This section identifies the decisions that are reviewable decisions and the affected
persons who may, under section 74K, request reconsideration of those decisions in
relation to the new functions of the Commissioner. These include:
- a decision not to approve a person as a provider of aged care,
- a decision to revoke the approval of a person or body as a provider of aged care
- a decision not to revoke approval of a person or body as a provider of aged care, if
requested
- a decision to impose sanctions on a person or body
- a decision to not lift a sanction imposed on an approved provider.
Section 74K Affected person may request reconsideration of reviewable decision
Subsection (1) provides that an affected person may request reconsideration of a
reviewable decision. Subsection (2) provides that the request must be made in writing,
set out the reasons for the request and be given to the Commissioner within 14 days
after the affected person is notified of the reviewable decision.
Section 74L Reconsideration of reviewable decision on request
If a request for reconsideration of a decision is made under section 74K, the
Commissioner or the Commissioner's delegate must reconsider the decision. Where a
decision is being reconsidered by a delegate, the delegate must occupy a position that
is at least the same level as the position occupied by the original decision maker.
The internal decision reviewer must confirm, vary or set the reviewable decision aside
and substitute a new decision. Subsection (4) deems a reviewable decision to be
affirmed by the Commissioner or the Commissioner's delegate, if the Commissioner
or the Commissioner's delegate has not given notice to the affected person within 90
days after receiving the request under section 74K.
Section 74M Reconsideration of reviewable decision on own initiative of
Commissioner etc.
Subsection (1) enables the Commissioner or the Commissioner's delegate to
reconsider a reviewable decision if satisfied there is sufficient reason to do so, without
a request under 74K.
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Subsection (2) provides that the Commissioner or the Commissioner's delegate must
give written notice to the affected person for the decision that the decision is to be
reconsidered. The Commissioner or Commissioner's delegate must confirm, vary or
set the reviewable decision aside and substitute a new decision.
Subsection (4) requires written notice of the reconsidered decision to be given to the
affected person within 90 days after the Commissioner or Commissioner's delegate
commenced reconsideration of the decision. The notice must include the
reconsideration decision, the date it takes effect and the reasons for the decision.
Subsection (6) requires a copy to be provided to the Secretary as soon as practicable.
If notice of the reconsidered decision is not given in accordance with subsection (4),
the reviewable decision will remain unaffected.
Section 74N Review by the Administrative Appeals Tribunal
Subsection (1) provides that an application may be made to the Administrative
Appeals Tribunal (AAT) for a review of a reconsidered decision.
Section 27(1) of the Administrative Appeals Tribunal Act 1975 provides that an
application may be made by, or on behalf of any person or person whose interests are
affected by the decision.
Schedule 4 - Transitional, application, saving and other provisions
Part 1--Introduction
Schedule 4 sets out matters that will enable the Commission to operate from transition
time and deal with any applications or processes currently underway. It also sets out
administrative arrangements to facilitate the continuation of business, such as the
transfer of records and appointments of authorised officers.
Item 1 - Definitions
This item defines terms that are used in this Schedule, drawing upon definitions from
the Aged Care Act and the Quality and Safety Commission Act. Importantly, this item
defines:
Sanction notice - to mean a notice given by the Secretary under section 67-5 of the
Aged Care Act. This is a notice that has been given to an approved provider,
informing them sanctions either have been, or are to be, imposed.
Transferred function - to mean one of the functions that is performed by the Secretary
before the transition time, and is to be performed by the Commissioner from that time
are set out under Schedules 1, 2 and 3.
Transition time - to mean the date on which this schedule commences.
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Part 2 - Approval of providers of aged care
Item 2 - Saving of approval of approved providers
This item establishes that an approved provider for the purposes of the Aged Care Act
before the transition time continues to be an approved provider for the purposes of the
Quality and Safety Commission Act after the transition time.
To be taken as an approved provider for the purposes of the Quality and Safety
Commission Act, the provider must be conducting an aged care service at the
transition time, to ensure that bodies that could fall within the broad scope of
section 8-6 are not deemed to be an approved provider where they are not current
providers. The new notification provision in section 63F would be available for such
an entity to use. A provider that, at the transition time, is available to take on new care
recipients (whether they currently have any care recipients or not) or is taking
preparatory steps to providing care following its approval is intended to be considered
to be conducting an aged care service for the purposes of this item, after the transition
time.
Item 3 - Pending applications for approval as provider of aged care
This item provides the Commissioner may complete the consideration of applications
for approval as a provider of aged care after the transition time, using the new
provisions of the Quality and Safety Commission Act.
In addition, if a State or Territory organisation had previously had its approval
revoked, the new notification provisions under section 63F are not available to the
organisation. It would need to commence a new approval.
As the provisions of the Quality and Safety Commission Act replicate the operation of
the provisions of the Aged Care Act, no applicant will be disadvantaged by this item.
In addition, applicants will continue to have reconsideration and review rights, with
these provided for in the Quality and Safety Commission Act.
Item 4 - Saving of notices requiring further information in relation to approval
applications
This item provides that any request for information issued by the Secretary under
section 8-4 of the Aged Care Act prior to the transition date will continue to have
effect, and the information must be given to the Commissioner. If a provider were to
give information to the Secretary after the transition time in purported compliance
with a notice, the Secretary would be able to pass this information on to the
Commissioner using the information sharing provisions of the Quality and Safety
Commission Act.
Item 5 - Saving of notices requesting further information from approved
providers
This item means any request for information issued by the Secretary under
section 9-2(1) of the Aged Care Act prior to the transition date will continue to have
effect, and the information will have to be provided to the Commissioner. If a
provider were to give information to the Secretary after the transition time in
purported compliance with a notice, the Secretary would be able to pass this
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information on to the Commissioner using the information sharing provisions of the
Quality and Safety Commission Act.
Item 6 - Saving of notices inviting submissions in relation to revocation of
approval
This item means any notice issued under section 10-3 of the Aged Care Act, inviting
submissions on whether the approval of a provider should be revoked prior to the
transition date will continue to have effect, and the submissions are to be made to the
Commissioner. If an approved provider were to give information to the Secretary after
the transition time in an attempt to provide these submissions, the Secretary would be
able to pass this information on to the Commissioner using the information sharing
provisions of the Quality and Safety Commission Act.
Item 7 - Saving of notices relating to revocation of approval as a provider of
aged care
This item saves the operation of notices given by the Secretary notifying the
Secretary's decision to: revoke a provider's approval; limit an approved provider's
approval; or revoked a provider's approval. The effect of this item is to provide that a
revocation decision made prior to the transition time, will continue to take effect in
accordance with the notices given in relation to the revocation, as if these notices were
given by the Commissioner, under corresponding provisions under section 63L of the
Quality and Safety Commission Act.
This item provides that a revocation decision made prior to the transition time will
continue to take effect as per notices issued prior to the transition time, and will
continue under the new provisions of the Quality and Safety Commission Act.
Part 3--Responsibilities of approved providers etc.
Division 1--Transitional etc. provisions relating to the imposition of sanctions on
approved providers
Item 8 - Sanctions imposed on approved providers that have not come into effect
immediately before transition time
The effect of this item is to provide that any sanction imposed by the Secretary under
the Aged Care Act before the transition time and at the transition time has not as yet
come into effect or continues in effect after the transition time, is taken to have been
imposed by the Commissioner under the provisions of the Quality and Safety
Commission Act. This ensures sanctions continue in force, but also enables providers
to seek to lift these sanctions under the Quality and Safety Commission Act.
In addition, this item also provides that any agreement entered into before the
transition time by an approved provider to do certain things specified in a sanctions
notice in lieu of having the approval revoked under section 66-2 of the Aged Care
Act, or where the approved provider agrees after the transition time to do more things
specified in relation to the sanction notice, the agreement is taken to have been made
for the purposes of section 63U.
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Item 9 - Imposition of sanctions on approved providers still under consideration
by the Secretary at transition time
This item ensures where the Secretary had met all of the requirements of Division 67
of the Aged Care Act prior to the transition time, but had not yet decided whether to
impose a sanction, the Commissioner may decide to impose a sanction without
complying with the applicable provisions in Division 3 of Part 7B given these natural
justice steps would already have been undertaken by the Secretary.
Item 10 - Dealing with certain pre-transition notices of non-compliance
Part 7B of the Quality and Safety Commission Act will not contain an analogous step
to the issuing of a notice of non-compliance. Accordingly, this item does not preserve
all notices of non-compliance. However, where a notice of non-compliance has been
issued and an approved provider has made satisfactory submissions in response, the
Commissioner will be able to give a notice under section 63T to give an undertaking
to remedy the non-compliance, to avoid an administrative burden from the approved
provider needing to repeat their submissions to the Commissioner.
In other circumstances, the Commission would be required to issue a notice under
section 63S before imposing a sanction, providing a procedural fairness step for the
approved provider.
Item 11 - Saving of notices of intention to impose sanction
This item preserves any notices of an intention to issue sanctions issued by the
Secretary prior to the transition time as if they had been issued under section 63T, and
enable any submissions in response to the notice to be made to the Commissioner.
If an approved provider were to give information to the Secretary after the transition
time in an attempt to provide these submissions, the Secretary would be able to pass
this information on to the Commissioner using the information sharing provisions of
the Quality and Safety Commission Act.
Item 12 - Saving of notices to remedy non-compliance
This item saves any notices to remedy non-compliance issued by the Secretary prior
to the transition time and enables an approved provider to give an undertaking to the
Commissioner under the new provisions of the Quality and Safety Commission Act in
order to satisfy the notice. The undertaking would then have effect as if it had been
given under section 63T.
Item 13 - Continued effect of undertaking given by approved provider to remedy
non-compliance
This item saves an undertaking to take steps to remedy non-compliance given to the
Secretary before the transition time so that it continues to have effect as if it were an
undertaking under section 63T after the transition time. This means that if an
approved provider fails to comply with the undertaking, the Commissioner will be
empowered to use the powers in Part 7B to impose sanctions for this non-compliance.
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Item 14 - Pending applications for lifting sanctions imposed on approved
providers
This item allows the Commissioner to continue to deal with an application to lift a
sanction after the transition time, where the Secretary was yet to make a decision on
the application before the transition time.
Item 15 - Saving of notices requiring further information in relation to
application to lift sanctions
This item means that any request for information issued by the Secretary under
section 68-5 of the Aged Care Act prior to the transition time will continue to have
effect after the transition time and the information will have to be provided to the
Commissioner. If an approved provider were to give information to the Secretary after
the transition time in purported compliance with a notice, the Secretary would be able
to pass this information on to the Commissioner using the information sharing
provisions of the Quality and Safety Commission Act.
Item 16 - Application - Part 7B of the Quality and Safety Commission Act
Part 7B of the Quality and Safety Commission Act is intended to apply to failures by
providers to comply with their aged care responsibilities whether those failures occur
before or after the transition time. This is to establish that, after the transition time, the
Commissioner can deal with all instances of non-compliance including identifying
and dealing with instances of non-compliance which occur before the transition time.
No person will be disadvantaged by the operation of this provision as the list of
sanctions and the aged care responsibilities are not substantively changed by this Bill.
Further, while the process for issuing sanctions has been simplified, Part 7B and the
provisions in Schedule 4 ensure the same kinds of statutory protections afforded to
providers for procedural fairness under the Part 4.4 of the Aged Care Act continue to
be afforded under the Part 7B of the Quality and Safety Commission Act prior to the
Commissioner issuing sanctions.
In addition, the overarching consideration of the Commissioner in imposing sanctions
is to protect the health, welfare and interests of care recipients.
Division 2--Application provisions relating to Part 6.4 of the Aged Care Act
Item 17 - Application - power to enter premises and exercise search powers in
relation to certain applications and grants
This item provides that an authorised officer under the Aged Care Act is able to
exercise their search powers in relation to applications or grants made prior to the
transition time. These authorised officers would have had search powers of a like
effect under Part 6.4 of the Aged Care Act prior to the transition time.
Item 18 - Application - Monitoring powers
This item provides that an authorised officer under the Aged Care Act is able to
exercise their monitoring powers in relation to appraisals and reappraisals made by
providers (or persons acting on behalf of providers) under Part 2.4 of the Aged Care
Act. These authorised officers would have had search powers of a like effect under
Part 6.4 of the Aged Care Act prior to the transition time.
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Item 19 - Application - Investigation powers
This item provides that an authorised officer under the Aged Care Act is able to
exercise their investigation powers in relation to a contravention of a civil offence
provision that occurred prior to the transition time. These authorised officers would
have had search powers of a like effect under Part 6.4 of the Aged Care Act prior to
the transition time.
Item 20 - Application - notices to attend to answer questions etc
Section 93-1 of the Aged Care Act enables the Secretary to give notice to a person to
attend to answer questions and provide documents to an authorised officer for certain
matters. This provision enables any outstanding notices to continue to have effect
under the amended section 93-1 where they relate to the continuing functions of the
Secretary. These matters are an application under the Aged Care Act or the Transition
Act, an appraisal or reappraisal, a claim for payment of subsidy, or a grant.
Item 21 - Saving of appointment of certain authorised officers
This item allows any officers of the Department who were authorised officers under
the Aged Care Act prior to the transition time, and are continuing to be APS
employees of the Department after the transition time, to continue to be authorised
officers after the transition time. This will enable a smooth transition for the Secretary
to continue to perform their continuing functions under the Aged Care Act.
Division 3--Application etc. provisions relating to Parts 8 and 8A of the
Commission Act
Item 22 - Application - monitoring powers
This item provides that an authorised officer under the Quality and Safety
Commission Act is able to exercise their monitoring powers in relation to conduct or
information given prior to, at or after the transition time. Authorised officers of the
Department would have had search powers of a like effect under Part 6.4 of the Aged
Care Act prior to the transition time.
Item 23 - Application - investigation powers
This item provides that an authorised officer under the Quality and Safety
Commission Act is able to exercise their investigation powers in relation to a
contravention of a provision before, at or after the transition time. Authorised officers
of the Department would have had search powers of a like effect under Part 6.4 of the
Aged Care Act prior to the transition time.
Item 24 - Saving of appointment of authorised complaints officers
Authorised complaints officers are appointed by the Commissioner under section 73
of the Quality and Safety Commission Act. After the transition time, these officers
will be taken to have been appointed as authorised officers for the purposes of the new
provisions of the Quality and Safety Commission Act, and their identity cards will
continue to have effect as if they had been issued under the new provisions.
Item 25 - Saving of appointment of certain authorised officers
This item provides that an officer of the Department that was an authorised officer
under the Aged Care Act at the transition time, will be taken to be an authorised
officer for the purposes of the Quality and Safety Commission Act if they become a
member of the staff of the Commission at the transition time. This will enable the
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Commission to continue operations, including exercising monitoring and investigation
powers, around the transition time.
Item 26 - Saving of identify cares issued to quality assessors
The identity cards issued to quality assessors under section 74 of the Quality and
Safety Commission Act prior to the transition time will continue to be able to be used
by quality assessors after the transition time.
Division 4--Other matters
Item 27 - Application - suspending approved providers from making appraisals
and reappraisals
This item provides that appraisals and reappraisals made prior to, at or after the
transition time are required to be made in a proper manner or the Secretary can
suspend their ability to make appraisals or reappraisals. No provider will be
disadvantaged by this requirement as approved providers have also had a
responsibility to conduct appraisals and reappraisals in a proper manner under
paragraph 63-1(1)(h) of the Aged Care Act, and the Secretary has been able to impose
sanctions for non-compliance with this responsibility.
Item 28 - Transition - annual report
Section 63-2 requires the Minister to make an annual report on the operation of the
Aged Care Act. Under paragraph 63-2(2)(g), the Minister is required to include details
about the sanctions imposed on providers during the year. This item provides that the
report for the financial year 2019-20 will include details of any sanctions issued prior
to the transition time. Details of any sanctions imposed after this date will be included
in the annual report of the Commission, in compliance with the requirements of the
Public Governance, Performance and Accountability Act 2014.
Part 4--Reconsideration and review of decisions
Item 29 - Request for reconsideration of pre-transition decisions relating to
approval
This item enables a person who has been affected by a reviewable decision by the
Secretary under the Aged Care Act relating to a transferred function, where the period
for seeking a review of that decision has not expired at the transition time, to apply for
a reconsideration under the new provisions of the Quality and Safety Commission
Act. To ensure no person is disadvantaged, the period for making the request for
reconsideration will continue to be the original reconsideration period as determined
under the Aged Care Act.
Item 30 - Pending requests for reconsideration of pre-transition decisions
relating to approval etc
Where a request for reconsideration of a decision by the Secretary is made under
subsection 85-5(1) but is yet to be determined at the transition time, this item enables
the reconsideration to be continued under section 74K of the Quality and Safety
Commission Act.
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Item 31 - Reconsideration of pre-transition decisions relating to approval etc. at
the Commissioner's own initiative
This item enables reviewable decisions that are made in the performance of a
transferred function that would have been subject to reconsideration by the Secretary
on the Secretary's own initiative under subsection 85-4(1) of the Aged Care Act, to
continue to be subject to reconsideration on the Commissioner's own initiative under
subsection 74M(1) of the Quality and Safety Commission Act.
Item 32 - Review by the Administrative Appeals Tribunal of certain pre-
transition decisions
This item allows a person affected by a reviewable decision made by the Secretary
prior to the transition time, to apply to the Administrative Appeals Tribunal for a
review, where the time period for making an application for review has not expired as
if the Secretary's reconsideration decision had been made by the Commissioner under
the Quality and Safety Commission Act.
Part 5--Provisions relating to transferred functions
Item 33 - Transfer of records
To operationally support the transferred functions in the Commission after the
transition time, this item provides that the records and documents of the Department
relate to a function transferring to the Commission at the transition time, become
records and documents of the Commission.
Item 34 - Protected information
Where information acquired in the course of performing a transferred function or
exercising transferred powers is protected information for the purposes of the Aged
Care Act prior to the transition time, this information will become protected
information under the Quality and Safety Commission Act, and subject to the
protections set out in that Act (including an offence for its unauthorised use or
disclosure). This item ensures the same protections continue to apply to information
such as the personal information of care recipients and information about the affairs of
an approved provider or an applicant for approval.
Item 35 - Legal proceedings
This provision enables the Commissioner to be substituted into any legal proceedings
underway at the transition time where the legal proceedings relate to a transferred
function. For example, if a former approved provider had requested a review of a
decision by the Secretary to revoke their approval in the Administrative Appeals
Tribunal and the proceedings were still underway at the transition time, the
Commissioner would become the party representing the Commonwealth in these
proceedings at the transition time.
Part 6--Rules
Item 36 - Rules
This item enables the Minister to make Rules to further deal with transitional matters,
in the event that further saving and application provisions are needed to affect the
transfer of functions to the Commissioner. Any Rules made under these provisions
would be a legislative instrument.
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