Commonwealth Numbered Acts Commonwealth Numbered Acts1 After section 9-3A
Insert:
9-3B Obligation to give information about ability to refund accommodation bond balances
(1) This section applies if the Secretary believes, on reasonable grounds, that an approved provider:
(a) has not refunded, or is unable or unlikely to be able to refund, an * accommodation bond balance as required by section 57-21; or
(b) is experiencing financial difficulties; or
(c) has used an * accommodation bond for a use that is not * permitted.
(2) The Secretary may request the approved provider to give the Secretary information specified in the request relating to any of the following:
(a) the approved provider's suitability to be a provider of * aged care (see section 8-3);
(b) the approved provider's financial situation;
(c) the amount of one or more * accommodation bond balances at a particular time;
(d) how * accommodation bonds have been used by the approved provider;
(e) the approved provider's policies and procedures relating to managing, monitoring and controlling the use of accommodation bonds;
(f) the roles and responsibilities of * key personnel in relation to managing, monitoring and controlling the use of accommodation bonds.
The request must be in writing.
(3) The Secretary may request the approved provider to give the specified information on a periodic basis.
(4) The approved provider must comply with the request:
(a) within 28 days after the request was made, or within such shorter period as is specified in the request; or
(b) if the information is to be given on a periodic basis--before the time or times worked out in accordance with the request.
Note: Approved providers have a responsibility under Part 4.3 to comply with this obligation. Failure to comply with a responsibility can result in a sanction being imposed under Part 4.4.
(5) An approved provider commits an offence if:
(a) the Secretary requests the approved provider to give information under subsection (2); and
(b) the approved provider is required under subsection (4) to comply with the request within a period or before a particular time; and
(c) the approved provider fails to comply with the request within the period or before the time; and
(d) the approved provider is a * corporation.
Penalty: 30 penalty units.
(6) The request must contain a statement setting out the effect of subsections (4) and (5).
2 Paragraphs 57-2(1)(k) and (ka)
Repeal the paragraphs, substitute:
(k) the approved provider must not use the accommodation bond unless the use of the bond is * permitted (see section 57-17A);
Note: For the use of bonds charged before 1 October 2011, see Part 2 of Schedule 1 to the Aged Care Amendment Act 2011 .
3 Before paragraph 57-2(1)(l)
Insert:
(ka) the approved provider must comply with the prudential requirements (see section 57-3);
4 Paragraphs 57-2(1)(n) and (na)
Repeal the paragraphs.
5 After Subdivision 57-E
Insert:
Subdivision 57-EA -- Permitted use of accommodation bonds
57-17A Permitted use of accommodation bonds
Permitted use--general
(1) A use of an * accommodation bond by an approved provider is permitted if the bond is:
(a) used for * capital expenditure (see subsection (2)); or
(b) invested in a financial product covered by subsection (3); or
(c) used to make a loan in relation to which the following conditions are satisfied:
(i) the loan is not made to an individual;
(ii) the loan is made on a commercial basis;
(iii) there is a written agreement in relation to the loan;
(iv) it is a condition of the agreement that the money loaned will only be used as mentioned in paragraph (a) or (b);
(v) the agreement includes any other conditions specified in the User Rights Principles; or
(d) used to refund * accommodation bond balances or * entry contribution balances; or
(e) used to repay debt accrued for the purposes of capital expenditure or refunding accommodation bond balances; or
(f) used to repay debt that is accrued before the commencement of this section, if the debt is accrued for the purposes of providing * aged care to care recipients; or
(g) used as permitted by the User Rights Principles.
Note 1: An approved provider, and the approved provider's key personnel, may commit an offence if the approved provider uses an accommodation bond otherwise than for a permitted use (see section 57-17B).
Note 2: This section commences on 1 October 2011 (see paragraph (f) of this subsection and section 2 of the Aged Care Amendment Act 2011 ).
Permitted use--capital expenditure
(2) For the purposes of subsection (1), the following expenditure is capital expenditure if it is reasonable in the circumstances:
(a) expenditure to acquire land on which are, or are to be built, the premises needed for providing residential care or flexible care;
(b) expenditure to acquire, erect, extend or significantly alter premises used or proposed to be used for providing residential care or flexible care;
(c) expenditure to acquire or install furniture, fittings or equipment for premises used or proposed to be used for providing residential care or flexible care, when those premises are initially erected or following an extension, a significant alteration or a significant refurbishment;
(d) expenditure that is directly attributable to doing a thing mentioned in paragraph (a), (b) or (c);
(e) expenditure specified in the User Rights Principles.
Example: Repairs to, or maintenance of, premises (such as painting, plumbing, electrical work or gardening) would not constitute a significant alteration for the purposes of this subsection.
Permitted use--financial products
(3) For the purposes of subsection (1), the following (within the meaning of section 764A of the Corporations Act 2001 ) are financial products covered by this subsection:
(a) any deposit-taking facility made available by an ADI in the course of its banking business (within the meaning of the Banking Act 1959 ), other than an RSA within the meaning of the Retirement Savings Accounts Act 1997 ;
Note 1: ADI is short for authorised deposit-taking institution.
Note 2: RSA is short for retirement savings account.
(b) a debenture, stock or bond issued or proposed to be issued by the Commonwealth, a State or a Territory;
(c) a security, other than a security of a kind specified in the User Rights Principles;
(d) any of the following in relation to a registered scheme:
(i) an interest in the scheme;
(ii) a legal or equitable right or interest in an interest covered by subparagraph (i);
(iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii);
(e) a financial product specified in the User Rights Principles.
Permitted uses specified in User Rights Principles
(4) Without limiting paragraph (1)(g), the User Rights Principles may specify that a use of an * accommodation bond is only permitted for the purposes of that paragraph if:
(a) specified circumstances apply; or
(b) the approved provider complies with conditions specified in, or imposed in accordance with, the User Rights Principles.
Note: For paragraph (4)(a), the User Rights Principles might, for example, specify that the use of an accommodation bond is only permitted if the approved provider obtains the prior consent of the Secretary to the use of the bond.
57-17B Offences relating to non-permitted use of accommodation bonds
Offence for approved provider
(1) A * corporation commits an offence if:
(a) the corporation is or has been an approved provider; and
(b) the corporation uses an * accommodation bond; and
(c) the use of the accommodation bond is not * permitted; and
(d) both of the following apply at a particular time during the period of 2 years after the use of the bond:
(i) an insolvency event (within the meaning of the Aged Care (Bond Security) Act 2006 ) has occurred in relation to the corporation;
(ii) there has been at least one outstanding bond balance (within the meaning of that Act) of the corporation.
Penalty: 300 penalty units.
Note: The Secretary must make a default event declaration under the Aged Care (Bond Security) Act 2006 in relation to the corporation if paragraph (d) of this subsection applies (see section 10 of that Act).
Offence for key personnel
(2) An individual commits an offence if:
(a) the individual is one of the * key personnel of an entity that is or has been an approved provider; and
(b) the entity uses an * accommodation bond; and
(c) the use of the accommodation bond is not * permitted; and
(d) the individual knew that, or was reckless or negligent as to whether:
(i) the bond would be used; and
(ii) the use of the bond was not permitted; and
(e) the individual was in a position to influence the conduct of the entity in relation to the use of the bond; and
(f) the individual failed to take all reasonable steps to prevent the use of the bond; and
(g) both of the following apply at a particular time during the period of 2 years after the use of the bond:
(i) an insolvency event (within the meaning of the Aged Care (Bond Security) Act 2006 ) has occurred in relation to the entity;
(ii) there has been at least one outstanding bond balance (within the meaning of that Act) of the entity; and
(h) at the time the bond was used, the entity was a * corporation.
Penalty: Imprisonment for 2 years.
Strict liability
(3) Strict liability applies to paragraphs (1)(d) and (2)(g) and (h).
Note: For strict liability, see section 6.1 of the Criminal Code .
6 Paragraph 57A-2(1)(l)
Repeal the paragraph.
7 Paragraph 63-1(1)(c)
Omit "and 9-3A(2)", substitute ", 9-3A(2) and 9-3B(4)".
8 Clause 1 of Schedule 1
Insert:
"capital expenditure" has the meaning given by subsection 57-17A(2).
9 Clause 1 of Schedule 1
Insert:
"permitted" : for when the use of an * accommodation bond is permitted , see section 57-17A.
Part 2 -- Transitional and application provisions
10 Interpretation
A term used in this Part of this Schedule has the same meaning as in the Aged Care Act 1997 .
11 Transitional--general
Use of accommodation bonds charged before commencement
(1) Despite section 57-2 (basic rules about accommodation bonds) of the Aged Care Act 1997 , as amended by item 2 of this Schedule, an approved provider must not use an accommodation bond that is charged before the commencement of this Schedule other than:
(a) in the case of a bond charged for entry to a residential care service--for a purpose related to providing aged care to care recipients; or
(b) in the case of a bond charged for entry to a flexible care service--for a purpose related to providing flexible care to care recipients; or
(c) in any case--for a use of the bond permitted within the meaning of section 57-17A of that Act (as amended by item 5 of this Schedule).
Note 1: This Schedule commences on 1 October 2011 (see section 2 of this Act).
Note 2: For the use of accommodation bonds charged on or after commencement, see item 12 of this Schedule.
Use of income derived from accommodation bonds or retention amounts
(2) The amendment of the Aged Care Act 1997 by item 4 of this Schedule applies to income derived from an accommodation bond, or a retention amount, irrespective of whether the bond was charged, or the retention amount received, before, on or after the commencement of this Schedule.
Note: Item 4 of this Schedule amends the Aged Care Act 1997 to remove restrictions on the use of income received from accommodation bonds and retention amounts.
Use of income derived from accommodation charges
(3) The amendment of the Aged Care Act 1997 by item 6 of this Schedule applies to the payment of an accommodation charge irrespective of whether the payment was received before, on or after the commencement of this Schedule.
Note: Item 6 of this Schedule amends the Aged Care Act 1997 to remove restrictions on the use of accommodation charges.
12 Application--use of accommodation bonds charged after commencement
Application of new rule
(1) The amendment of the Aged Care Act 1997 by item 2 of this Schedule applies to accommodation bonds charged on or after the commencement of this Schedule.
Note 1: This Schedule commences on 1 October 2011 (see section 2 of this Act).
Note 2: Item 2 of this Schedule amends the Aged Care Act 1997 to require accommodation bonds to be used only as permitted within the meaning of section 57-17A of that Act.
Use of accommodation bonds within 2 years after commencement
(2) However, subitems (3) and (4) apply if:
(a) an accommodation bond is charged by an approved provider on or after the commencement of this Schedule; and
(b) the bond is used by the approved provider during the period of 2 years starting at the commencement of this Schedule; and
(c) the bond is used for a purpose relating to providing:
(i) in the case of a bond charged for the entry of a care recipient to a residential care service--residential care; or
(ii) in the case of a bond charged for the entry of a care recipient to a flexible care service--flexible care; and
(d) the approved provider complies with any requirement of the User Rights Principles imposed for the purposes of this paragraph.
(3) Subsections 57-17B(1) and (2) of the Aged Care Act 1997 (offences relating to non-permitted use of accommodation bonds), as inserted by item 5 of this Schedule, do not apply in relation to the use of the accommodation bond by the approved provider.
Note: A defendant bears an evidential burden in relation to the matters in this subitem (see subsection 13.3(3) of the Criminal Code ).
(4) For the purposes of Part 4.4 of the Aged Care Act 1997 (consequences of non-compliance), the approved provider is taken to have complied with the provider's responsibilities under Part 4.2 of that Act (user rights) in relation to the use of the bond (despite paragraph 57-2(1)(k) of that Act (use of bond must be permitted), as substituted by item 2 of this Schedule).