Commonwealth Numbered Acts Commonwealth Numbered Acts
1 Section 7-2
Repeal the section, substitute:
7-2 Payment of subsidy if approval of provider is restricted to certain aged care services etc.
(1) If:
(a) a sanction has been imposed on an approved provider under section 63N of the * Quality and Safety Commission Act; and
(b) the sanction restricts the approval of the provider to certain * aged care services conducted by the provider;
then, while the sanction is in effect, * subsidy may only be paid to the provider in respect of care provided through those services.
(2) If:
(a) a sanction has been imposed on an approved provider under section 63N of the * Quality and Safety Commission Act; and
(b) the sanction restricts the payment of * subsidies to the provision of care by the provider to certain care recipients;
then, while the sanction is in effect, subsidy may only be paid to the provider in respect of care provided to those care recipients.
Note: Both subsections (1) and (2) may apply at the same time in relation to an approved provider.
2 Subsections 9-1A(1), 9-1(1), 9-2(2), 9-3(2), 9-3A(2) and 9-3B(4) (note)
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
3 Subsection 14-1(2A)
Repeal the subsection, substitute:
(2A) The * places must not be allocated to a person if:
(a) a sanction has been imposed on the person under section 63N of the * Quality and Safety Commission Act; and
(b) the sanction prohibits the further allocation of places under this Part to the person; and
(c) the sanction is in effect.
4 Subsection 14-4(2)
Omit "under Part 4.4", substitute "by a notice given under section 63N of the * Quality and Safety Commission Act".
5 Subsections 14-5(1), 14-6(3) and 16-11(2) (note)
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
6 Paragraph 18-1(1)(b)
Omit "Part 4.4", substitute "by a notice given under section 63N of the * Quality and Safety Commission Act".
7 Subsection 18-1(3)
Repeal the subsection, substitute:
(3) If:
(a) a sanction has been imposed on a person under section 63N of the * Quality and Safety Commission Act; and
(b) the sanction suspends the allocation of a * place that has taken effect under Division 15 of this Act;
then the allocation does not have effect while the suspension is in effect.
8 Subsections 18-2(4) and 18-4(1) (note)
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
9 Paragraphs 25-4(1)(a) and (b)
Repeal the paragraphs (not including the notes), substitute:
(a) the Secretary is satisfied that the approved provider, or a person acting on the approved provider's behalf, has not conducted an appraisal or reappraisal in a proper manner; or
(b) both of the following apply:
(i) the Secretary is satisfied that the approved provider, or a person acting on the approved provider's behalf, gave false, misleading or inaccurate information in an appraisal or reappraisal connected with a classification reviewed under subsection 29-1(3);
(ii) the classification was changed under section 29-1.
10 Subsection 32-8(6) (note)
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
11 Paragraph 33-1(c)
Omit "Part 4.4", substitute "by a notice given under section 63N of the * Quality and Safety Commission Act".
12 Subsection 33-4(1) (note)
Omit "Part 4.4 (see paragraph 66-1(g))", substitute "Part 7B of the * Quality and Safety Commission Act".
13 Section 36-4 (note)
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
14 Subsection 42-2(1)
Omit "section 67A-5", substitute "section 63Q of the * Quality and Safety Commission Act".
15 Paragraph 52G-2(d)
Repeal the paragraph, substitute:
(d) an accommodation payment must not be charged by an approved provider if:
(i) a sanction has been imposed on the provider under section 63N of the * Quality and Safety Commission Act; and
(ii) the sanction prohibits the charging of an accommodation payment for the service;
16 Paragraph 52G-6(d)
Repeal the paragraph, substitute:
(d) an accommodation contribution must not be charged by an approved provider if:
(i) a sanction has been imposed on the provider under section 63N of the * Quality and Safety Commission Act; and
(ii) the sanction prohibits the charging of an accommodation contribution for the service;
17 Section 53-1
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
18 At the end of subsection 53-2(1)
Add "and the * Quality and Safety Commission Act".
19 Section 55-1
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
20 Paragraphs 63-1(1)(b) and (ba)
Repeal the paragraphs, substitute:
(b) to cooperate with any person who is performing functions, or exercising powers, in relation to the service under:
(i) Part 6.4 of this Act; or
(ii) Part 8 or 8A of the * Quality and Safety Commission Act; or
(iii) Part 2 or 3 of the * Regulatory Powers Act;
21 Paragraph 63-1(1)(k)
Repeal the paragraph, substitute:
(k) if the approved provider has given an undertaking as required by a notice given to the provider under section 63T of the Quality and Safety Commission Act--to comply with the undertaking;
(l) if the approved provider has agreed to do one or more things as required by a notice given to the provider under section 63U of the Quality and Safety Commission Act--to comply with the agreement;
22 Paragraphs 63-1AA(2)(b), (4)(b), (5)(e) and (7)(b)
Omit "Secretary", substitute " * Quality and Safety Commissioner".
23 Subsection 63-1A(2)
Omit "Sanctions Principles", substitute "Accountability Principles".
24 Paragraph 63-2(2)(f)
Omit "and" (second occurring).
25 Paragraph 63-2(2)(g)
Repeal the paragraph.
26 Part 4.4
Repeal the Part.
27 Section 84-1
Omit:
(d) powers of officers in relation to monitoring compliance and offences (see Part 6.4);
substitute:
(d) the compliance and enforcement powers (see Part 6.4);
28 Subsections 88-1(1) and (2), 88-2(1) and 88-3(1) (note)
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
29 Part 6.4
Repeal the Part, substitute:
Part 6.4 -- Compliance and enforcement powers
90-1 Simplified outline of this Part
An APS employee in the Department may be appointed as an * authorised officer.
An authorised officer may enter premises with consent of the occupier and exercise * search powers there for the purposes of the Secretary:
(a) making a decision on an application made under this Act or the Aged Care (Transitional Provisions) Act 1997 ; or
(b) determining whether the conditions to which a grant under Chapter 5 of this Act is subject have been complied with.
An authorised officer may enter premises under a warrant or with consent of the occupier and exercise monitoring powers there under Part 2 of the * Regulatory Powers Act, for the purposes of determining:
(a) whether section 25-3 (which deals with the appraisal of the level of care needed by care recipients) or sections 27-3 and 27-5 (which deal with the reappraisal of the level of care needed by care recipients) of this Act have been complied with; or
(b) whether information given in compliance, or purported compliance, with a provision of Chapter 3 of this Act or a provision of Chapter 3 of the Aged Care (Transitional Provisions) Act 1997 (which both deal with * subsidies) is correct.
An authorised officer may, under Part 3 of the Regulatory Powers Act, gather material that relates to the contravention of a * civil penalty provision in this Act.
Parts 2 and 3 of the Regulatory Powers Act are applied by this Part with suitable modifications.
The Secretary may require a person in certain circumstances to attend before an authorised officer to answer questions or provider information or documents.
Table of Divisions
90 Introduction
91 Entry and search powers relating to certain applications and grants
92 Regulatory Powers
93 Notice to attend to answer questions etc.
94 Appointment of authorised officers
Division 91 -- Entry and search powers relating to certain applications and grants
(1) This section applies if the Secretary considers that it is necessary for an * authorised officer to exercise powers under this Division for the purposes of the Secretary:
(a) making a decision on an application made under this Act or the Aged Care (Transitional Provisions) Act 1997 ; or
(b) determining whether the conditions to which a grant under Chapter 5 of this Act is subject have been complied with.
(2) An * authorised officer may:
(a) enter any premises; and
(b) exercise the * search powers in relation to the premises;
for the purposes of the Secretary making the decision or determination.
(3) However, an * authorised officer is not authorised to enter premises unless the occupier of the premises has consented to the entry.
Note: An authorised officer must leave the premises if the consent ceases to have effect (see section 91-2).
(1) Before obtaining the consent of an occupier of premises for the purposes of subsection 91-1(3), an * authorised officer must:
(a) inform the occupier that the occupier may refuse to give consent or may withdraw consent; and
(b) if the occupier is an approved provider--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 this Part.
Note: Failure to comply with that responsibility may result in a sanction being imposed on the approved provider under Part 7B of the * Quality and Safety Commission Act.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
(5) If an * authorised officer entered premises because of the consent of the occupier of the premises, the officer must leave the premises if the consent ceases to have effect.
(6) If:
(a) an * authorised officer enters premises because of the consent of the occupier of the premises; and
(b) the officer has not shown the occupier the officer's identity card before entering the premises;
the officer must do so on, or as soon as is reasonably practicable after, entering the premises.
(1) If an * authorised officer enters premises in accordance with section 91-1, the following are the search powers that the officer may exercise in relation to the premises:
(a) the power to search the premises and any thing on the premises;
(b) the power to examine or observe any activity conducted on the premises;
(c) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(d) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of, any such document;
(g) the power to take onto the premises such equipment and materials as the officer requires for the purpose of exercising powers in relation to the premises;
(h) the powers set out in subsections (2) and (3).
(2) The search powers include the power to:
(a) operate electronic equipment on the premises entered in accordance with section 91-1; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it.
(3) If information that is relevant to the purposes for which the * authorised officer entered the premises under section 91-1 is found in the exercise of the power under subsection (2), the search powers include the following powers:
(a) the power to operate electronic equipment on the premises to put the information in documentary form and remove the documents so produced from the premises;
(b) the power to operate electronic equipment on the premises to transfer the information to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(4) An * authorised officer may operate electronic equipment as mentioned in subsection (2) or (3) only if the officer believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
91-4 Asking questions and seeking production of documents
(1) If an * authorised officer enters premises in accordance with section 91-1, the officer may request a person at the premises:
(a) to answer any questions put by the officer; and
(b) to produce any documents or records requested by the officer.
(2) Before the * authorised officer makes a request of an approved provider under subsection (1), the officer must inform the provider that the provider has a responsibility under paragraph 63-1(1)(b) to cooperate with a person who is performing functions, or exercising powers, under this Part.
Note: Failure to comply with that responsibility may result in a sanction being imposed on the approved provider under Part 7B of the * Quality and Safety Commission Act.
(3) A person is not required to comply with a request made under subsection (1).
Division 92 -- Regulatory powers
Provisions subject to monitoring
(1) The following provisions of this Act are subject to monitoring under Part 2 of the * Regulatory Powers Act:
(a) section 25-3 (which deals with the appraisal of the level of care needed by care recipients);
(b) sections 27-3 and 27-5 (which deal with the reappraisal of the level of care needed by care recipients).
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance, or purported compliance, with the following provisions of this Act is subject to monitoring under Part 2 of the * Regulatory Powers Act:
(a) a provision of Chapter 3 of this Act (which deals with * subsidies);
(b) a provision of Chapter 3 of the Aged Care (Transitional Provisions) Act 1997 (which deals with subsidies).
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
(3) For the purposes of Part 2 of the * Regulatory Powers Act, a provision of Division 29A of this Act is related to the provisions mentioned in subsection (1).
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(4) For the purposes of Part 2 of the * Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) an * authorised officer is an authorised applicant; and
(b) an authorised officer is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Secretary is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the * Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the Aged Care (Transitional Provisions) Act 1997 .
Persons assisting
(5) An * authorised officer may be assisted by other persons in exercising powers or performing functions under Part 2 of the * Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
Use of force in executing warrant
(6) In executing a warrant issued under Part 2 of the * Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) an * authorised officer may use such force against things as is necessary and reasonable in the circumstances; and
(b) a person assisting the officer may use such force against things as is necessary and reasonable in the circumstances.
Extension to external Territories
(7) Part 2 of the * Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), extends to the same external Territories in which this Act applies.
Note: See section 4-1 for the external Territories in which this Act applies.
92-2 Modifications of Part 2 of the Regulatory Powers Act
(1) This section applies in relation to Part 2 of the * Regulatory Powers Act as that Part applies in relation to the following:
(a) the provisions mentioned in subsection 92-1(1) of this Act;
(b) the information mentioned in subsection 92-1(2) of this Act.
Consent
(2) Before obtaining the consent of an occupier of premises who is an approved provider for the purposes of paragraph 18(2)(a) of the * Regulatory Powers Act, an * authorised officer must inform the occupier that the occupier has a responsibility under paragraph 63-1(1)(b) of this Act to cooperate with a person who is performing functions, or exercising powers, under Part 2 of the Regulatory Powers Act.
Note: See section 25 of the Regulatory Powers Act for additional rules about consent.
Securing electronic equipment etc.
(3) Sections 21, 22 and 33 of the * Regulatory Powers Act are taken to apply as if:
(a) a reference to "24 hours" in sections 21 and 22 of that Act were a reference to "48 hours"; and
(b) a reference to a "24-hour period" in sections 21 and 22 of that Act were a reference to a "48-hour period".
Asking questions and seeking production of documents
(4) The second reference to the occupier of premises in subsection 24(2) of the * Regulatory Powers Act is taken to include a reference to any other person on the premises.
(5) Before requesting a person who is an approved provider to answer a question, or produce a document, under subsection 24(2) of the * Regulatory Powers Act, an * authorised officer must inform the person that the person has a responsibility under paragraph 63-1(1)(b) of this Act to cooperate with a person who is performing functions, or exercising powers, under Part 2 of the Regulatory Powers Act.
(6) If an * authorised officer requests a person to answer a question, or produce a document, under subsection 24(2) of the * Regulatory Powers Act, the person is not required to comply with the request.
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the * Regulatory Powers Act if it is a * civil penalty provision.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(2) For the purposes of Part 3 of the * Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an * authorised officer is an authorised applicant; and
(b) an authorised officer is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Secretary is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the * Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the Aged Care (Transitional Provisions) Act 1997 .
Persons assisting
(3) An * authorised officer may be assisted by other persons in exercising powers or performing functions under Part 3 of the * Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
Use of force in executing warrant
(4) In executing a warrant issued under Part 3 of the * Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an * authorised officer may use such force against things as is necessary and reasonable in the circumstances; and
(b) a person assisting the officer may use such force against things as is necessary and reasonable in the circumstances.
Extension to external Territories
(5) Part 3 of the * Regulatory Powers Act, as it applies in relation to a provision mentioned in subsection (1), extends to the same external Territories in which this Act applies.
Note: See section 4-1 for the external Territories in which this Act applies.
92-4 Modifications of Part 3 of the Regulatory Powers Act
(1) This section applies in relation to Part 3 of the * Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 92-3(1) of this Act.
Securing electronic equipment etc.
(2) Sections 51 and 74 of the * Regulatory Powers Act are taken to apply as if:
(a) a reference to "24 hours" in section 51 of that Act were a reference to "48 hours"; and
(b) a reference to a "24-hour period" in section 51 of that Act were a reference to a "48-hour period".
Asking questions and seeking production of documents
(3) The second reference to the occupier of premises in subsection 54(2) of the * Regulatory Powers Act is taken to include a reference to any other person on the premises.
(4) Before requesting a person who is an approved provider to answer a question, or produce a document, under subsection 54(2) of the * Regulatory Powers Act, an * authorised officer must inform the person that the person has a responsibility under paragraph 63-1(1)(b) of this Act to cooperate with a person who is performing functions, or exercising powers, under Part 3 of the Regulatory Powers Act.
Division 93 -- Notice to attend to answer questions etc.
93-1 Notice to attend to answer questions etc. relevant to certain matters
(1) This section applies if the Secretary believes on reasonable grounds that a person has information or documents relevant to any of the following matters (the relevant matter ):
(a) an application made under this Act or the Aged Care (Transitional Provisions) Act 1997 ;
(b) an appraisal of the level of care needed by care recipients made under section 25-3 of this Act;
(c) a reappraisal of the level of care needed by care recipients made under sections 27-3 and 27-5 of this Act;
(d) a claim by an approved provider for payment of * subsidy under Chapter 3 of this Act or Chapter 3 of the Aged Care (Transitional Provisions) Act 1997 ;
(e) whether the conditions to which a grant under Chapter 5 of this Act is subject have been complied with.
(2) The Secretary may, by written notice, require the person to attend before an * authorised officer to do either or both of the following:
(a) to answer questions relating to the relevant matter;
(b) to give such information or documents (or copies of documents) as are specified in the notice.
Notice requirements
(3) If a notice is given to a person under subsection (2), the notice must:
(a) specify the * authorised officer before whom the person is required to attend; and
(b) specify the day on which, and the time and place at which, the person is required to attend.
(4) The day specified under paragraph (3)(b) must be at least 14 days after the notice is given.
Circumstances in which a person is not required to comply
(5) A person is not required to comply with a requirement of a notice given to the person under subsection (2) if the requirement does not relate to the affairs of an approved provider that is a * corporation.
Offence
(6) A person commits an offence if:
(a) the person is given a notice under subsection (2); and
(b) the person fails to comply with a requirement of the notice; and
(c) the requirement relates to the affairs of an approved provider and the provider is a * corporation.
Penalty: 30 penalty units.
Reasonable compensation
(7) A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement of a notice given to the person under subsection (2) to give copies of documents.
93-2 Attending before authorised officer to answer questions
(1) This section applies if:
(a) a person is given a notice under subsection 93-1(2); and
(b) the notice requires the person to attend before an * authorised officer to answer questions; and
(c) the person attends before the authorised officer for that purpose.
(2) The * authorised officer may question the person on oath or affirmation and may, for that purpose:
(a) require the person to take an oath or make an affirmation; and
(b) administer an oath or affirmation to the person.
(3) The oath or affirmation to be taken or made by the person for the purposes of subsection (2) is an oath or affirmation that the statements that the person will make will be true.
Circumstances in which a person is not required to take an oath etc.
(4) A person is not required to comply with a requirement under subsection (2) to take an oath or make an affirmation for the purposes of answering questions if those questions do not relate to the affairs of an approved provider that is a * corporation.
Note: Approved providers have a responsibility under paragraph 63-1(1)(b) to cooperate with a person who is performing functions, or exercising powers, under this Part. Failure to comply with that responsibility may result in a sanction being imposed on the provider under Part 7B of the * Quality and Safety Commission Act.
Offence
(5) A person commits an offence if:
(a) the person is required by an * authorised officer to take an oath or make an affirmation for the purposes of answering questions; and
(b) the person refuses or fails to comply with the requirement; and
(c) the questions relate to the affairs of an approved provider and the provider is a * corporation.
Penalty: 30 penalty units.
Division 94 -- Appointment of authorised officers
94-1 Authorised officers must carry identity card
An * authorised officer must carry the officer's * identity card at all times when performing functions, or exercising powers, under Division 91 as an authorised officer.
Note: An authorised officer is also required to carry the officer's identity card when exercising powers under Part 2 or 3 of the * Regulatory Powers Act (see subsections 35(6) and 76(6) of that Act).
94-2 Appointment of authorised officers
(1) The Secretary may, in writing, appoint a person who is an APS employee in the Department as an * authorised officer for the purposes of this Part.
(2) The Secretary must not appoint a person as an * authorised officer under subsection (1) 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.
(3) An * authorised officer must, in performing the officer's functions or exercising the officer's powers, comply with any directions of the Secretary.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
30 Paragraph 95C-1(3)(a)
Repeal the paragraph, substitute:
(a) the * Federal Court;
31 Section 96-1 (table item 22)
Repeal the item.
32 Subparagraph 96-8(1)(b)(ii)
Omit "Secretary", substitute " * Quality and Safety Commissioner".
33 Subsection 96-8(6) (note)
Omit "Part 4.4", substitute "Part 7B of the * Quality and Safety Commission Act".
34 Clause 1 of Schedule 1 (definition of authorised officer )
Repeal the definition, substitute:
"authorised officer " means a person appointed as an authorised officer under subsection 94-2(1).
35 Clause 1 of Schedule 1
Insert:
"Federal Court " means the Federal Court of Australia.
"identity card " , in relation to an * authorised officer, means an identity card issued to the officer under section 35 or 76 of the * Regulatory Powers Act.
36 Clause 1 of Schedule 1 (definition of monitoring powers )
Repeal the definition.
37 Clause 1 of Schedule 1
Insert:
"search powers " has the meaning given by section 91-3.
38 Clause 1 of Schedule 1 (definition of section 67-5 notice time )
Repeal the definition.
Aged Care Quality and Safety Commission Act 2018
39 Section 6 (before paragraph (b))
Insert:
(ab) the functions of imposing sanctions on approved providers and lifting sanctions; and
(ac) the function of ensuring compliance with the aged care responsibilities of approved providers and provisions of this Act and the Aged Care Act ; and
40 Section 6 (paragraph beginning "This Act also")
Omit "information, confidentiality and powers to enter premises and exercise the search powers in relation to premises for certain purposes", substitute "information and confidentiality".
41 Section 7
Insert:
"accommodation bond " has the same meaning as in the Aged Care Act.
"accommodation charge " has the same meaning as in the Aged Care Act.
"accommodation contribution " has the same meaning as in the Aged Care Act.
"accommodation payment " has the same meaning as in the Aged Care Act.
"aged care responsibility " means a responsibility of an approved provider under Chapter 4 of the Aged Care Act.
42 Section 7 (definition of authorised complaints officer )
Repeal the definition.
43 Section 7
Insert:
"authorised officer " means a person appointed as an authorised officer under subsection 75A(1).
"distinct part " , in relation to a residential care service, has the same meaning as in the Aged Care Act.
"eligible advise r " means a person other than:
(a) a disqualified individual; or
(b) an officer of the Commonwealth; or
(c) a person specified in the rules.
"extra service status " has the same meaning as in the Aged Care Act.
44 Section 7 (definition of identity card )
Repeal the definition, substitute:
"identity card " means:
(a) in relation to an authorised officer--an identity card issued to the authorised officer under section 35 or 76 of the Regulatory Powers Act; or
(b) in relation to a quality assessor--an identity card issued to the quality assessor under section 74 of this Act.
45 Section 7
Insert:
"non-compliance notice " means a notice given under subsection 63S(2).
"occupied place " of an approved provider: see subsection 63Q(5).
"Regulatory Powers Act " means the Regulatory Powers (Standard Provisions) Act 2014 .
"subsidy " has the same meaning as in the Aged Care Act.
"vacant place " of an approved provider: see subsection 63Q(4).
46 Section 14 (before paragraph (b))
Insert:
(ab) imposing sanctions on approved providers and lifting sanctions; and
(ac) ensuring compliance with the aged care responsibilities of approved providers and provisions of this Act and the Aged Care Act; and
47 Before paragraph 16(1)(b)
Insert:
(ab) the functions conferred on the Commissioner by Part 7B (which deals with imposing sanctions on approved providers that have not complied, or are not complying, with the aged care responsibilities);
(ac) to ensure compliance with:
(i) the aged care responsibilities of approved providers; and
(ii) provisions of this Act and the Aged Care Act;
48 At the end of section 52
Add:
; and (d) information about sanctions imposed under Part 7B for non-compliance with aged care responsibilities, including the nature of the non-compliance and the sanctions imposed.
49 Paragraphs 61(1)(a) to (g)
Omit "; and", substitute "; or".
50 After paragraph 61(1)(g)
Insert:
(ga) if an approved provider has appointed an eligible adviser as required by a notice given to the provider under section 63U--to the eligible adviser for the purposes of that appointment; or
51 Paragraphs 61(1)(h) and (i)
Omit "; and", substitute "; or".
52 Before Part 8
Insert:
Part 7B -- Sanctions for non-compliance with aged care responsibilities of approved providers
63M Simplified outline of this Part
The Commissioner may impose sanctions under this Part on an approved provider that has not complied, or is not complying, with one or more of the aged care responsibilities of the provider. Certain procedures must be followed if sanctions are to be imposed.
An approved provider may be asked in certain circumstances to give an undertaking or to agree to do one or more things to avoid a sanction being imposed.
Certain sanctions may be lifted by the Commissioner on application by the approved provider.
Division 2 -- Imposition of sanctions by the Commissioner
63N Commissioner may impose sanctions for non-compliance with aged care responsibilities
(1) The Commissioner may impose one or more sanctions of a kind mentioned in section 63R on an approved provider if:
(a) the Commissioner is satisfied that the provider has not complied, or is not complying, with one or more of the aged care responsibilities of the provider; and
(b) the Commissioner is satisfied that it is appropriate to impose those sanctions on the provider.
Note 1: The approved provider may request the Commissioner to reconsider the decision under Part 8B.
Note 2: In certain circumstances, the Commissioner must give a notice under section 63S before deciding to impose a sanction under this section.
Commissioner must consider certain matters
(2) In deciding whether an approved provider has not complied, or is not complying, with the aged care responsibility referred to in paragraph 63-1(1)(a) or (h) of the Aged Care Act, the Commissioner may have regard to any information provided by the Secretary in relation to that matter.
(3) In deciding whether it is appropriate to impose sanctions on an approved provider for non-compliance with one or more of the aged care responsibilities of the provider, the Commissioner must consider the following matters:
(a) whether the non-compliance is of a minor or serious nature;
(b) whether the non-compliance has occurred previously and, if so, how many times it has previously occurred;
(c) whether the non-compliance threatens the health, welfare or interests of the care recipients to whom the provider is providing care;
(d) whether the non-compliance would threaten the health, welfare or interests of care recipients to whom the provider may provide care in the future;
(e) if the provider has given an undertaking as required by a notice given to the provider under section 63T--whether or not the provider has complied with the undertaking;
(f) if the provider has agreed to do one or more things as required by a notice given to the provider under section 63U--whether or not the provider has complied with the agreement;
(g) the desirability of deterring future non-compliance;
(h) any other matters specified in the rules.
(4) However, the Commissioner must give paramount consideration to the matters specified in paragraphs (3)(c) and (d).
Notice of decision to impose sanctions
(5) If the Commissioner decides to impose, under subsection (1), one or more sanctions on an approved provider in relation to the provider's non-compliance with one or more aged care responsibilities, the Commissioner must, within 14 days after making the decision, give the provider a written notice that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) sets out the details of the provider's non-compliance; and
(d) specifies each of the sanctions and sets out the effect each sanction will have on the provider; and
(e) if a sanction is to revoke or suspend the allocation of some or all of the places allocated to the provider under Part 2.2 of the Aged Care Act--specifies the number of those places subject to the sanction; and
(f) specifies the day on which each of the sanctions comes into effect; and
(g) if a sanction is to cease to have effect on a particular day:
(i) specifies that day; and
(ii) sets out the effect of Division 4 of this Part (which deals with the lifting of sanctions).
Note: In certain circumstances, the Commissioner must comply with sections 63P and 63Q in specifying a day for the purposes of paragraph (f) of this subsection.
(6) The rules may specify matters that the Commissioner must have regard to in doing any one or more of the following:
(a) specifying a day under paragraph (5)(f) in relation to a sanction;
(b) deciding whether or not to specify a day under subparagraph (5)(g)(i) in relation to a sanction;
(c) specifying a day under subparagraph (5)(g)(i) in relation to a sanction.
(1) This section applies if:
(a) the Commissioner decides to impose, under section 63N, a sanction on an approved provider in relation to the provider's non-compliance with one or more aged care responsibilities of the provider; and
(b) the sanction is to revoke the provider's approval; and
(c) no other sanction is to be imposed on the provider in relation to the non-compliance.
(2) The Commissioner must specify a day for the purposes of paragraph 63N(5)(f) in relation to the sanction that is no later than 14 days after the date of the notice given to the approved provider under subsection 63N(5) in relation to the sanction.
63Q When the revocation or suspension of allocation of places is to take effect
(1) This section applies if:
(a) the Commissioner decides to impose, under section 63N, a sanction on an approved provider in relation to the provider's non-compliance with one or more aged care responsibilities of the provider; and
(b) the sanction is to revoke or suspend a particular number of places (the affected places ) allocated to the provider under Part 2.2 of the Aged Care Act; and
(c) immediately before the date (the sanction notice date ) of the notice given to the provider under subsection 63N(5) in relation to the sanction, the affected places are not all vacant places of the provider.
(2) If the sanction relates to an affected place that is a vacant place of the approved provider, the Commissioner must specify, for the purposes of paragraph 63N(5)(f), the sanction notice date as the day on which the sanction comes into effect for the vacant place.
(3) If the sanction relates to an affected place that is an occupied place of the approved provider, the Commissioner must specify, for the purposes of paragraph 63N(5)(f), the first day after the day on which the provider ceases to provide aged care to a care recipient in respect of the occupied place as the day on which the sanction comes into effect for the occupied place.
(4) A vacant place of the approved provider is a place allocated to the provider under Part 2.2 of the Aged Care Act in respect of which the provider is not providing aged care to a care recipient immediately before the sanction notice date.
(5) An occupied place of the approved provider is a place allocated to the provider under Part 2.2 of the Aged Care Act in respect of which the provider is providing aged care to a care recipient immediately before the sanction notice date.
Note: A care recipient who is on leave under section 42-2 of the Aged Care Act from a residential care service is taken to be provided with residential care by the approved provider of the service (see subsection 42-2(1) of that Act).
63R Kinds of sanctions that may be imposed on approved providers
The following are the kinds of sanctions that may be imposed on an approved provider under section 63N:
(a) revoking or suspending the approval of the provider;
(b) restricting the approval of the provider to the aged care services conducted by the provider at a specified time;
(c) restricting the payment of subsidies under the Aged Care Act to the provision of care to care recipients to whom the provider is providing care, through one or more, or all, specified aged care services, at a specified time;
(d) revoking or suspending the allocation of some or all of the places allocated to the provider under Part 2.2 of the Aged Care Act;
(e) varying the conditions to which the allocation of some or all of the places allocated to the provider under Part 2.2 of the Aged Care Act is subject under section 14-5 or 14-6 of that Act;
(f) prohibiting the further allocation of places under Part 2.2 of the Aged Care Act to the provider;
(g) revoking or suspending the extra service status in respect of a residential care service, or a distinct part of a residential care service, conducted by the provider;
(h) prohibiting the granting of extra service status in respect of a residential care service, or a distinct part of a residential care service, conducted by the provider;
(i) prohibiting the charging of an accommodation payment, or an accommodation contribution, for:
(i) one or more, or all, specified residential care services conducted by the provider; or
(ii) one or more, or all, specified flexible care services conducted by the provider;
(j) prohibiting the charging of an accommodation bond, or an accommodation charge, for the entry (within the meaning of the Aged Care Act) of care recipients to:
(i) one or more, or all, specified residential care services conducted by the provider; or
(ii) one or more, or all, specified flexible care services conducted by the provider;
(k) if the provider has charged an amount of accommodation payment or accommodation contribution that is more than the amount the provider is permitted to charge under Division 52G of the Aged Care Act--requiring the provider to refund, in accordance with that Division and within a specified period, an amount equal to the excess amount charged by the provider;
(l) restricting, during a specified period, the use by the provider of a refundable deposit, or an accommodation bond, to one or more specified uses that are permitted under Division 52N of the Aged Care Act;
(m) if the provider is required under Division 52P of the Aged Care Act to refund an amount in accordance with that Division and the provider has not done so--requiring the provider to refund the amount in accordance with that Division within a specified period;
(n) requiring the provider to repay any or all of the amount of a grant paid to the provider under Chapter 5 of the Aged Care Act;
(o) any other sanctions specified in the rules.
Division 3 -- Notices that must, or may be given, before sanctions are imposed
63S Commissioner must notify approved provider of intention to impose sanctions on the provider
(1) This section applies if the Commissioner is satisfied that:
(a) an approved provider has not complied, or is not complying, with one or more of the aged care responsibilities of the provider (other than the responsibility referred to in paragraph 63-1(1)(k) or (l) of the Aged Care Act); and
(b) there is no immediate and severe risk to the safety, health and well-being of care recipients to whom the provider is providing care as a result of the non-compliance.
(2) Before the Commissioner decides to impose, under section 63N, one or more sanctions on the approved provider in relation to the non-compliance, the Commissioner must, by written notice, notify the provider that the Commissioner is considering imposing those sanctions on the provider in relation to the non-compliance.
(3) The notice must:
(a) set out details of the approved provider's non-compliance; and
(b) set out the reasons why the Commissioner is considering imposing, under section 63N, one or more sanctions on the provider in relation to the non-compliance; and
(c) set out the kinds of sanctions that the Commissioner is considering imposing on the provider and the effect those sanctions, if imposed, would have on the provider; and
(d) set out broadly what action the Commissioner requires the provider to take to remedy the non-compliance; and
(e) invite the provider to make submissions, in writing, to the Commissioner in relation to the matter within:
(i) 14 days after receiving the notice; or
(ii) if a shorter period is specified in the notice--that shorter period; and
(f) inform the provider that the Commissioner may, after considering any submissions made by the provider:
(i) give the provider a notice under section 63T in relation to the non-compliance; or
(ii) decide to impose, under section 63N, one or more sanctions on the provider in relation to the non-compliance.
(4) The Commissioner must consider any submissions made by the approved provider in accordance with the notice.
63T Approved provider may be required to give undertaking about remedying non-compliance
(1) This section applies if:
(a) an approved provider is given a non-compliance notice in relation to the provider's non-compliance with one or more aged care responsibilities of the provider; and
(b) the provider makes submissions to the Commissioner as required by the notice; and
(c) the Commissioner considers that the submissions:
(i) propose appropriate action to remedy the non-compliance; or
(ii) set out an acceptable reason for the non-compliance; or
(iii) are otherwise satisfactory.
(2) The Commissioner may, by written notice:
(a) require the approved provider to give the Commissioner an undertaking in relation to the non-compliance that complies with subsection (3) within:
(i) 14 days after receiving the notice; or
(ii) if a shorter period is specified in the notice--that shorter period; and
(b) inform the provider that the Commissioner may decide to impose, under section 63N, one or more sanctions on the provider in relation to the non-compliance if:
(i) the provider does not give the required undertaking; or
(ii) the provider does not comply with any such undertaking given by the provider.
(3) An undertaking given by an approved provider in relation to the provider's non-compliance with one or more aged care responsibilities of the provider must:
(a) be given in writing; and
(b) be in a form approved by the Commissioner; and
(c) describe and acknowledge the non-compliance; and
(d) set out what action the provider proposes to take to remedy the non-compliance; and
(e) set out the period within which such action is to be taken; and
(f) include a statement acknowledging that the Commissioner may decide to impose, under section 63N, one or more sanctions on the provider if the provider does not comply with the undertaking; and
(g) meet any other requirements specified in the rules.
Note: Approved providers have a responsibility under paragraph 63-1(1)(k) of the Aged Care Act to comply with the undertaking. Failure to comply with that responsibility may result in a sanction being imposed under section 63N of this Act.
(1) This section applies if:
(a) the Commissioner is satisfied that an approved provider has not complied, or is not complying, with one or more of the aged care responsibilities of the provider (other than the responsibility referred to in paragraph 63-1(1)(l) of the Aged Care Act); and
(b) the Commissioner is satisfied that:
(i) there is an immediate and severe risk to the safety, health and well-being of care recipients to whom the provider is providing care as a result of the non-compliance; or
(ii) if the provider made submissions to the Commissioner in relation to the non-compliance as required by a non-compliance notice given to the provider--the submissions do not satisfy any of subparagraphs 63T(1)(c)(i), (ii) or (iii); or
(iii) if the provider is required by a notice given to the provider under section 63T to give the Commissioner an undertaking in relation to the non-compliance--the provider has failed to give the undertaking; or
(iv) if the provider has given an undertaking as required by a notice given to the provider under section 63T--the provider has failed to comply with the undertaking; and
(c) the Commissioner is considering imposing, under section 63N, a sanction on the provider for the non-compliance; and
(d) the sanction (the revocation sanction ) is the revocation of the approval of the provider.
(2) Before the Commissioner decides to impose, under section 63N, the revocation sanction on the approved provider in relation to the non-compliance, the Commissioner may, by written notice:
(a) require the provider to agree, in writing, to do any one or more things specified in the notice; and
(b) inform the provider that, if the provider does not agree to do those specified things in accordance with the notice, the Commissioner will impose the revocation sanction on the provider in relation to the non-compliance.
Note: Approved providers have a responsibility under paragraph 63-1(1)(l) of the Aged Care Act to comply with the agreement. Failure to comply with that responsibility may result in a sanction being imposed under section 63N of this Act.
(3) For the purposes of subsection (2), the following are the kinds of things that the Commissioner may require an approved provider to do in a notice given under that subsection:
(a) to provide, at the provider's expense and within the period specified in the notice, such training as is specified in the notice for the provider's officers, employees and agents;
(b) to provide, within the period specified in the notice, such security as is specified in the notice for any debts owed by the provider to the Commonwealth;
(c) to appoint, within the period specified in the notice, an eligible adviser who has appropriate qualifications, skills or experience to assist the provider to comply with the provider's aged care responsibilities in relation to either or both of the following matters:
(i) the care and services provided by the provider;
(ii) the governance and business operations of the provider;
(d) to give an eligible adviser appointed by the provider for that purpose all the necessary information required by the adviser to provide that assistance;
(e) to transfer, within the period specified in the notice, any or all of the places allocated to the provider under Part 2.2 of the Aged Care Act to another approved provider;
(f) to do any other things specified in the rules.
(4) The rules may specify matters that the Commissioner must take into account in specifying a period in a notice given under subsection (2) for the purposes of paragraph (3)(c).
Division 4 -- Lifting of sanctions imposed on approved providers
63V Application for lifting of sanction imposed on approved provider
(1) If:
(a) a sanction has been imposed on an approved provider under section 63N; and
(b) the notice given to the provider under that section specified a day on which the sanction is to cease to have effect; and
(c) the sanction is still in effect;
the provider may apply to the Commissioner for the sanction to be lifted.
(2) The application must:
(a) be made in writing; and
(b) be in a form approved by the Commissioner; and
(c) be accompanied by any documents or information specified by the Commissioner; and
(d) be accompanied by any fee specified by the Commissioner.
(3) The approved provider may, in writing, withdraw the application at any time before the Commissioner makes a decision on the application.
63W Request for further information
(1) If:
(a) an approved provider makes an application under subsection 63V(1); and
(b) the Commissioner needs further information to make a decision on the application;
the Commissioner may, by written notice, request the provider to give further information to the Commissioner within a specified period.
(2) The specified period must not be shorter than 28 days after the notice is given.
(3) However, the specified period may be shorter than 28 days after the notice is given if the circumstances specified in the rules apply in relation to the application.
(4) The Commissioner may, at the approved provider's request, extend the specified period.
(5) If the approved provider does not give the requested further information within:
(a) if the specified period has been extended under subsection (4)--the period as so extended; or
(b) otherwise--the specified period;
the application is taken to be withdrawn at the end of the period.
Note: If the application is taken to be withdrawn under this subsection, the approved provider may make another application under section 63V.
(6) A notice given under subsection (1) must set out the effect of subsection (5).
63X Commissioner must decide whether to lift sanction imposed on approved provider
(1) If an approved provider makes an application under subsection 63V(1) in relation to a sanction imposed on the provider, the Commissioner must decide whether to lift the sanction within:
(a) if a request for further information in relation to the application has been made under subsection 63W(1)--28 days after receiving the further information; or
(b) otherwise--28 days after receiving the application.
Note: See Part 8B for the reconsideration of a decision not to lift the sanction.
(2) The Commissioner must lift the sanction imposed on the approved provider if the Commissioner is satisfied that it is appropriate for the sanction to be lifted.
(3) In deciding whether it is appropriate for the sanction imposed on the approved provider to be lifted, the Commissioner must have regard to:
(a) whether the approved provider is complying with the aged care responsibilities of the provider; and
(b) any other matters specified in the rules.
63Y Notification of decision relating to lifting of sanction imposed on approved provider
Decision to lift sanction
(1) If the Commissioner decides, under section 63X, to lift a sanction imposed on an approved provider, the Commissioner must, within 14 days after making the decision, give written notice of the following to the provider:
(a) the decision;
(b) the day on which the sanction will cease to be in effect;
(c) any other matters specified in the rules.
Decision not to lift sanction
(2) If the Commissioner decides, under section 63X, not to lift a sanction imposed on an approved provider, the Commissioner must, within 14 days after making the decision, give written notice of the following to the provider:
(a) the decision;
(b) the reasons for the decision;
(c) how the provider may apply for reconsideration of the decision.
Secretary must be given copy of notice
(3) The Commissioner must, as soon as is practicable, give the Secretary a copy of a notice given under subsection (1) or (2).
53 Part 8 (heading)
Repeal the heading, substitute:
Part 8 -- Entry and search powers relating to provider approval applications etc.
54 Section 64
Omit "powers of authorised complaints", substitute "powers of authorised".
55 Section 64
Omit:
The Commissioner is to appoint authorised complaints officers. The Commissioner must also ensure that identity cards are issued to authorised complaints officers and quality assessors.
substitute:
The Commissioner must cause identity cards to be issued to quality assessors.
56 Division 2 of Part 8 (heading)
Omit " complaints ".
57 Before section 65
Insert:
(1) This section applies if:
(a) an application for approval as a provider of aged care is made under section 63B; and
(b) the Commissioner considers that, for the purposes of making a decision on the application, it is necessary for an authorised officer to exercise powers under this Division.
(2) An authorised officer may:
(a) enter any premises; and
(b) exercise the search powers in relation to the premises;
for the purposes of the Commissioner making a decision on the application.
(3) However, an authorised officer is not authorised to enter premises unless the occupier of the premises has consented to the entry.
Note: An authorised officer must leave the premises if the consent ceases to have effect (see section 66).
58 Section 65
Omit "complaints officer" (wherever occurring), substitute "officer".
59 Subsection 66(1)
Omit "65(3), an authorised complaints", substitute "64A(3) or 65(3), an authorised".
60 Paragraph 66(1)(b)
Omit "paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a person who is exercising powers", substitute "paragraph 63-1(1)(b) of the Aged Care Act to cooperate with a person who is performing functions, or exercising powers,".
61 Subsection 66(1) (note)
Omit "Part 4.4 of the Aged Care Act", substitute "Part 7B".
62 Subsection 66(5)
Omit "complaints".
63 Paragraph 66(6)(a)
Omit "complaint".
64 Subsection 67(1)
Omit "complaints officer enters premises in accordance with section", substitute "officer enters premises in accordance with section 64A or".
65 Subsection 67(2)
Omit "complaints".
66 Subsection 67(2)
Omit "paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a person who is exercising powers", substitute "paragraph 63-1(1)(b) of the Aged Care Act to cooperate with a person who is performing functions, or exercising powers,".
67 Subsection 67(2) (note)
Omit "Part 4.4 of the Aged Care Act", substitute "Part 7B".
68 Paragraph 69(1)(b)
Omit "paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a person who is exercising powers", substitute "paragraph 63-1(1)(b) of the Aged Care Act to cooperate with a person who is performing functions, or exercising powers,".
69 Subsection 69(1) (note)
Omit "Part 4.4 of the Aged Care Act", substitute "Part 7B".
70 Subsection 70(2)
Omit "paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a person who is exercising powers", substitute "paragraph 63-1(1)(b) of the Aged Care Act to cooperate with a person who is performing functions, or exercising powers,".
71 Subsection 70(2) (note)
Omit "Part 4.4 of the Aged Care Act", substitute "Part 7B".
72 Paragraph 71(1)(a)
Repeal the paragraph, substitute:
(a) an authorised officer enters premises in accordance with section 64A or 65; or
73 Subsection 71(2)
Omit "complaints".
74 Paragraph 72(1)(a)
After "section", insert "64A,".
75 Paragraph 72(3)(a)
Omit "complaints officer entered the premises in accordance with section", substitute "officer entered the premises in accordance with section 64A or".
76 Subsection 72(5)
Omit "complaints".
77 Division 5 of Part 8 (heading)
Repeal the heading, substitute:
78 Section 73
Repeal the section, substitute:
73 Authorised officers must carry identity card
An authorised officer must carry the officer's identity card at all times when performing functions, or exercising powers, under this Part as an authorised officer.
79 Section 74 (heading)
Repeal the heading, substitute:
74 Identity cards for quality assessors
80 Subsection 74(1)
Repeal the subsection, substitute:
(1) The Commissioner must cause an identity card to be issued to a person who is a quality assessor.
81 Subsection 74(3)
Repeal the subsection (not including the heading).
82 Subsection 74(5)
Omit "(3) or".
83 Subsection 74(6)
Omit "Subsections (3) and (4) do", substitute "Subsection (4) does".
84 Subsection 74(7)
Repeal the subsection (not including the heading).
85 After Part 8
Insert:
Part 8A -- Enforcement of responsibilities of approved providers
74A Simplified outline of this Part
An authorised officer may enter premises under a warrant or with consent of the occupier and exercise monitoring powers there under Part 2 of the Regulatory Powers Act, for the purposes of determining the following:
(a) whether a provision of Chapter 4 of the Aged Care Act has been, or is being, complied with;
(b) whether information given in compliance or purported compliance with a provision of that chapter is correct.
An authorised officer may, under Part 3 of the Regulatory Powers Act, gather material that relates to the contravention of offences against:
(a) this Act or the Aged Care Act; or
(b) the Crimes Act 1914 or the Criminal Code that relates to this Act or the Aged Care Act.
Parts 2 and 3 of the Regulatory Powers Act are applied by this Part with suitable modifications.
The Commissioner may require a person in certain circumstances to attend before an authorised officer to answer questions or give certain information or documents.
Division 2 -- Regulatory powers
Provisions subject to monitoring
(1) A provision of Chapter 4 of the Aged Care Act is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether Chapter 4 of the Aged Care Act (which deals with the responsibilities of approved providers) has been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with a provision of Chapter 4 of the Aged Care Act is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
(3) For the purposes of Part 2 of the Regulatory Powers Act, a provision of the Aged Care Act that is referred to in Chapter 4 of the Aged Care Act is related to the provision mentioned in subsection (1) and the information mentioned in subsection (2).
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(4) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to the provision mentioned in subsection (1) and the information mentioned in subsection (2):
(a) an authorised officer is an authorised applicant; and
(b) an authorised officer is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Commissioner is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act, the Aged Care Act or the Aged Care (Transitional Provisions) Act 1997 .
Persons assisting
(5) An authorised officer may be assisted by other persons in exercising powers or performing functions under Part 2 of the Regulatory Powers Act in relation to the provision mentioned in subsection (1) and the information mentioned in subsection (2).
Use of force in executing warrant
(6) In executing a warrant issued under Part 2 of the Regulatory Powers Act, as it applies in relation to the provision mentioned in subsection (1) and the information mentioned in subsection (2):
(a) an authorised officer may use such force against things as is necessary and reasonable in the circumstances; and
(b) a person assisting the officer may use such force against things as is necessary and reasonable in the circumstances.
Extension to external Territories
(7) Part 2 of the Regulatory Powers Act, as it applies in relation to the provision mentioned in subsection (1) and the information mentioned in subsection (2), extends to the external Territories other than the Territory of Ashmore and Cartier Islands.
74C Modifications of Part 2 of the Regulatory Powers Act
(1) This section applies in relation to Part 2 of the Regulatory Powers Act as that Part applies in relation to the following:
(a) the provision mentioned in subsection 74B(1) of this Act;
(b) the information mentioned in subsection 74B(2) of this Act.
Consent
(2) Before obtaining the consent of an occupier of premises who is an approved provider for the purposes of paragraph 18(2)(a) of the Regulatory Powers Act, an authorised officer must inform the occupier that the occupier 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 2 of the Regulatory Powers Act.
Note: See section 25 of the Regulatory Powers Act for additional rules about consent.
Securing electronic equipment etc.
(3) Sections 21, 22 and 33 of the Regulatory Powers Act are taken to apply as if:
(a) a reference to "24 hours" in sections 21 and 22 of that Act were a reference to "48 hours"; and
(b) a reference to a "24-hour period" in sections 21 and 22 of that Act were a reference to a "48-hour period".
Asking questions and seeking production of documents
(4) The second reference to the occupier of premises in subsection 24(2) of the Regulatory Powers Act is taken to include a reference to any other person on the premises.
(5) Before requesting a person who is an approved provider to answer a question, or produce a document, under subsection 24(2) of the Regulatory Powers Act, an authorised officer must inform the person that the person 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 2 of the Regulatory Powers Act.
(6) If an authorised officer requests a person to answer a question, or produce a document, under subsection 24(2) of the Regulatory Powers Act, the person is not required to comply with the request.
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:
(a) an offence against this Act or the Aged Care Act; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Aged Care Act.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(2) For the purposes of Part 3 of the Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an authorised officer is an authorised applicant; and
(b) an authorised officer is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Commissioner is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act, the Aged Care Act or the Aged Care (Transitional Provisions) Act 1997 .
Persons assisting
(3) An authorised officer may be assisted by other persons in exercising powers or performing functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
Use of force in executing warrant
(4) In executing a warrant issued under Part 3 of the Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an authorised officer may use such force against things as is necessary and reasonable in the circumstances; and
(b) a person assisting the officer may use such force against things as is necessary and reasonable in the circumstances.
Extension to external Territories
(5) Part 3 of the Regulatory Powers Act, as it applies in relation to a provision mentioned in subsection (1), extends to the external Territories other than the Territory of Ashmore and Cartier Islands.
74E Modifications of Part 3 of the Regulatory Powers Act
(1) This section applies in relation to Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 74D(1) of this Act.
Securing electronic equipment etc.
(2) Sections 51 and 74 of the Regulatory Powers Act are taken to apply as if:
(a) a reference to "24 hours" in section 51 of that Act were a reference to "48 hours"; and
(b) a reference to a "24-hour period" in section 51 of that Act were a reference to a "48-hour period".
Asking questions and seeking production of documents
(3) The second reference to the occupier of premises in subsection 54(2) of the Regulatory Powers Act is taken to include a reference to any other person on the premises.
(4) Before requesting a person who is an approved provider to answer a question, or produce a document, under subsection 54(2) of the Regulatory Powers Act, an authorised officer must inform the person that the person 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 3 of the Regulatory Powers Act.
Division 3 -- Notice to attend to answer questions etc.
(1) If the Commissioner believes on reasonable grounds that a person has information or documents relevant to whether an approved provider, or a former approved provider, is complying with an aged care responsibility of the provider or former provider, the Commissioner may, by written notice, require the person to attend before an authorised officer to do either or both of the following:
(a) to answer questions relating to that matter;
(b) to give such information or documents (or copies of documents) as are specified in the notice.
Notice requirements
(2) If a notice is given to a person under subsection (1), the notice must:
(a) specify the authorised officer before whom the person is required to attend; and
(b) specify the day on which, and the time and place at which, the person is required to attend.
(3) The day specified under paragraph (2)(b) must be at least 14 days after the notice is given.
Circumstances in which a person is not required to comply
(4) A person is not required to comply with a requirement of a notice given to the person under subsection (1) if the requirement does not relate to the affairs of an approved provider, or former approved provider, that is a corporation.
Offence
(5) A person commits an offence if:
(a) the person is given a notice under subsection (1); and
(b) the person fails to comply with a requirement of the notice; and
(c) the requirement relates to the affairs of an approved provider or former approved provider; and
(d) the provider or former provider is a corporation.
Penalty: 30 penalty units.
Reasonable compensation
(6) A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement of a notice given to the person under subsection (1) to give copies of documents.
74G Attending before authorised officer to answer questions
(1) This section applies if:
(a) a person is given a notice under subsection 74F(1); and
(b) the notice requires the person to attend before an authorised officer to answer questions; and
(c) the person attends before the authorised officer for that purpose.
(2) The authorised officer may question the person on oath or affirmation and may, for that purpose:
(a) require the person to take an oath or make an affirmation; and
(b) administer an oath or affirmation to the person.
(3) The oath or affirmation to be taken or made by the person for the purposes of subsection (2) is an oath or affirmation that the statements that the person will make will be true.
Circumstances in which a person is not required to take an oath etc.
(4) A person is not required to comply with a requirement under subsection (2) to take an oath or make an affirmation for the purposes of answering questions if those questions do not relate to the affairs of an approved provider, or former approved provider, that is a corporation.
Note: Approved providers have 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 this Part. Failure to comply with that responsibility may result in a sanction being imposed on the provider under Part 7B of this Act.
Offence
(5) A person commits an offence if:
(a) the person is required by an authorised officer to take an oath or make an affirmation for the purposes of answering questions; and
(b) the person refuses or fails to comply with the requirement; and
(c) the questions relate to the affairs of an approved provider or former approved provider; and
(d) the provider or former provider is a corporation.
Penalty: 30 penalty units.
86 Section 75
After "such as", insert "the appointment of authorised officers,".
87 After section 75
Insert:
75A Appointment of authorised officers
(1) The Commissioner may, in writing, appoint a person who is a member of the staff of the Commission as an authorised officer for either or both of the following purposes:
(a) the purposes of this Act;
(b) the purposes of the rules.
(2) The Commissioner must not appoint a person as an authorised officer under subsection (1) unless the Commissioner is satisfied that the person has suitable training or experience to properly perform the functions, or exercise the powers, of an authorised officer.
(3) An authorised officer must, in performing the officer's functions or exercising the officer's powers, comply with any directions of the Commissioner.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
88 Subsection 76(1)
After "this Act", insert "(other than Part 7B)".
89 Subsection 76(1) (note)
Repeal the note.
90 After subsection 76(1)
Insert:
(1A) The Commissioner may, in writing, delegate to the following all or any of the Commissioner's functions or powers under Part 7B:
(a) a member of the staff of the Commission;
(b) an APS employee in the Department.
(1B) However, the Commissioner must not delegate a function or power to a person under subsection (1) or (1A) unless the Commissioner is satisfied that the person has suitable training or experience to properly perform the function or exercise the power.
91 At end of section 76
Add:
Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
Aged Care (Transitional Provisions) Act 1997
92 Subsection 42-2(1)
Omit "section 67A-5 of the Aged Care Act 1997 ", substitute "section 63Q of the * Quality and Safety Commission Act".
93 Paragraph 57-2(1)(o)
Repeal the paragraph, substitute:
(o) the approved provider must not charge an accommodation bond if:
(i) a sanction has been imposed on the approved provider under section 63N of the * Quality and Safety Commission Act; and
(ii) the sanction prohibits the charging of an accommodation bond for the entry;
94 Paragraph 57A-2(1)(m)
Repeal the paragraph, substitute:
(m) the approved provider must not charge an accommodation charge if:
(i) a sanction has been imposed on the approved provider under section 63N of the * Quality and Safety Commission Act; and
(ii) the sanction prohibits the charging of an accommodation charge for the entry;
95 Subparagraphs 11A(8)(a)(i), (b)(i) and (ba)(i)
Omit "Part 4.4 of the Aged Care Act 1997 ", substitute "Part 7B of the Aged Care Quality and Safety Commission Act 2018 ".
Veterans' Entitlements Act 1986
96 Subparagraphs 5LA(8)(a)(i), (b)(i) and (ba)(i)
Omit "Part 4.4 of the Aged Care Act 1997 ", substitute "Part 7B of the Aged Care Quality and Safety Commission Act 2018 ".