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1
Residential Services (Accreditation) Bill 2002
RESIDENTIAL SERVICES
(ACCREDITATION) BILL 2002
EXPLANATORY NOTES
General Outline
Objectives of the Legislation
The principal policy objectives of the Bill are to regulate the conduct of
residential services to:
protect the health, safety and basic freedoms of residents;
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encourage service providers to continually improve the way they
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conduct residential services; and
support fair trading in the residential services industry.
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Reasons for Proposed Legislation
The residents of the residential services sector are some of the most
vulnerable people in the Queensland community. As such they are more
susceptible to exploitation than most other groups in the community and
often are unable to exercise the consumer choices that might otherwise
allow them to avoid situations of long-term exploitation or abuse. With few
exceptions, they have limited incomes and many experience a range of
disadvantages (including intellectual and/or psychiatric disability, drug and
alcohol problems, brain injury, problems associated with ageing, social,
economic disadvantage, and social isolation).
In most cases residents surrender a high percentage of their relevant
pension to service providers, the amount of which does not always reflect
the level of quality or range of services provided to them and they are not
accorded protection under residential services or similar legislation.
The proposed regulation of the residential services sector is in response
to immediate concerns regarding the safety and well being of residents and
follows a number of well publicised instances of abuse of residents. It also
responds to the needs and expressed wishes of reputable service providers
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Residential Services (Accreditation) Bill 2002
to improve the image of the industry and raise substandard operating
practices to acceptable levels.
This Bill is one component of a reform package that has been developed
by the Hostel Industry Taskforce (established in 2000) and other agencies
in response to poor conditions and standards currently evidenced in the
residential services industry. The Residential Services (Accommodation
Bill) 2002 is another component of the response to the problems in this
area. It addresses concerns relating to tenancy issues. The residential
services industry is one of the few industries within the broader residential
rental market that remains without consumer protection legislation.
Alternatives to the Bill
There are no alternatives considered appropriate for achieving these
policy objectives.
How the Policy Objectives will be Achieved
The objects of the legislation are primarily achieved through establishing
standards for the provision of residential services and providing for and
encouraging continuous improvement in the delivery of residential
services. The objectives will be further achieved through establishing a
registration system ensuring that service providers and associates are
suitable and that the premises involved are safe and suitable. The
accreditation system established by the Act will ensure that minimum
standards of care are met.
Estimated Cost of Implementation
The scheme proposed in the legislation will involve administrative costs
in connection with registration, accreditation, compliance and tribunal
functions.
Implementation of the accreditation scheme will be done as a staged
process for approximately 502 supported accommodation hostels and
boarding houses and 32 aged rental complexes. Additional staff will be
required in the Accreditation Unit to be established in the Office of Fair
Trading and in the existing Investigations Unit of the Office of Fair
Trading.
There will be minimal cost recovery by payment of application fees by
service providers for registration and accreditation.
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Residential Services (Accreditation) Bill 2002
It is anticipated that the costs of implementation of the legislation will
be:
2002/3--$0.800m
2003/4--$0.950m
2004/5--$1.080m
Consistency with Fundamental Legislative Principles
Disclosure of criminal histories
The Bill provides that, in deciding a person's suitability to be the
provider of a residential service, the chief executive may have regard to the
person's criminal history. Particular regard may be had to convictions
under a residential services Act or similar law of another jurisdiction. A
residential services Act includes this Act or the Residential Services
(Accommodation) Act 2002.
Criminal history is defined as being convictions, other than spent
convictions, recorded against a person before or after the commencement
of the Act.
The Bill further provides for automatic disqualification as a suitable
person for a person convicted in the last 5 years of certain disqualifying
offences, unless the chief executive is satisfied it would be reasonable to
decide otherwise in the exceptional circumstances of the case.
It may be suggested that this provision does not have sufficient regard to
the rights and liberties of the individual. However, this legislation is
designed to protect a vulnerable group in society and it is considered that
the public interest in meeting this objective outweighs any infringement of
this principle. Additionally, the scheme is appropriately limited and
controlled.
The provisions contain safeguards for the use of information obtained
regarding a person's criminal history to ensure that overall the provisions
represent a balanced approach.
It has already been noted that the chief executive has discretion with
regard to automatic disqualification.
The Bill specifically restricts the use of criminal history information. It
must not be used for any other purpose other than the purpose for which it
was obtained. The Bill also requires the chief executive to have regard to
when the offence was committed, the nature of the offence and its
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Residential Services (Accreditation) Bill 2002
relevance to the decision and whether a person is a service provider or an
associate.
Further, the Bill ensures that a person is given a reasonable opportunity
to be heard before the chief executive uses any information in a criminal
history report. This allows a person to make representations about an
offence that may be relevant to the decision.
Criminal history reports must be destroyed after the expiry of all appeal
periods. This safeguards the privacy of individuals.
Appointment of Administrator
Part 6 of the Bill provides for the appointment of an administrator to a
registered service by the Queensland Building Tribunal. The powers of an
administrator to take over the premises of the service provider, to receive
rental payments and to enter a resident's room may be considered to not
have sufficient regard to the rights and liberties of individuals.
Again it is considered that the scheme provided in the legislation is
appropriately limited and controlled and that the overriding public interest
in protecting vulnerable residents is paramount.
The Bill provides for the appointment of an administrator in limited
circumstances and by the tribunal, an independent body. Such an
appointment may only be made where it is necessary to protect the health
or safety of residents of a service. Appropriate limitations on the exercise
of the discretion to appoint are outlined in Part 6. Only in the rarest of
circumstances would such criteria be met. One possible case is where a
service provider who is a sole operator simply fails to provide the service
and cannot be located. Depending on the nature of the particular residents
and the type of services usually provided there may be an urgent need to
empower someone to continue to provide those services.
The Bill limits the term of an administrator's appointment.
Executive officers of corporation ensuring corporation complies with Act
and responsibility for acts and omissions of representatives
The Bill effectively provides that an act or omission of a person's
representative (relating to a proceeding for an offence under the Act) is
taken to have been done by the person, if the representative was acting
within the scope of the representative's authority. The person will therefore
be taken to have committed the relevant offence unless the person can
prove that they could not, by the exercise of reasonable diligence, have
prevented the act or omission.
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Residential Services (Accreditation) Bill 2002
The Bill further provides that, if a corporation is convicted of an offence,
each executive officer of the corporation is taken to have committed the
offence of failing to ensure that the corporation complies with that
provision. This clause therefore presumes an executive officer of the
corporation to be guilty until the officer can prove that the officer took all
reasonable steps to ensure the corporation complied with the provision; or
the officer was not in a position to influence the conduct of the corporation
in relation to the offence.
These provisions effectively provide for the reversal of the onus of proof.
However, it should be noted that the matters to be proved by the defendant
are not elements of the offence. The facts that support the defence will
usually be entirely within the defendant's knowledge and impossible for
the prosecutor to prove in the negative. Given that the legislative scheme
introduced by this Bill is designed to protect the health, safety and welfare
of a vulnerable section of the community, it is appropriate that:
persons be required to oversee the conduct of their
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representatives and, in doing so, make reasonable efforts to
ensure that their employees and agents comply with the
requirements of the legislation;
an executive officer who is in a position to influence the conduct
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of a corporate licensee, be required to ensure that the corporation
complies with the legislation; and
an executive officer, who is responsible for a contravention of the
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legislation, be accountable for his or actions and not be able to
"hide" behind the corporation.
The provisions are therefore warranted to ensure that there is effective
accountability at a corporate level.
CONSULTATION
Community
The Hostel Industry Development Unit consulted extensively with all
key stakeholder groups including residents/consumers, industry and
community groups.
The Hostel Industry Development Unit Joint Advisory Council
comprised representation from relevant government agencies, industry,
peak disability organisations, Boarding House Action Group, Disability
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Residential Services (Accreditation) Bill 2002
Housing Coalition, Commerce Queensland, Brisbane City Council and the
Community Services and Health Industry Training Council.
Government
Through the Hostel Industry Task Force there have been extensive
consultations with Government Agencies including:
Department of Premier and Cabinet
Department of Tourism, Racing and Fair Trading
Department of Families
Department of Health
Department of Housing
Department of Local Government and Planning
Queensland Treasury
Disability Services Queensland
Residential Tenancies Authority
Emergency Services
Department of Justice and Attorney General
Queensland Police Service
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Division 1--Introduction
Clause 1 sets out the short title of the Act.
Clause 2 provides that the Act commences on a day to be fixed by
proclamation.
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Residential Services (Accreditation) Bill 2002
Division 2--Interpretation
Clause3 specifies that the dictionary in Schedule 2 defines particular
words used in the Act.
Clause 4 specifies the meaning of "residential service". Providing
accommodation in return for rent in one or more rooms is a key element of
a residential service. The premises must be able to accommodate 4 or more
persons to come within the meaning of this definition and therefore to be
subject to this Act. A shared facility, such as bathroom, kitchen, common
or dining rooms is another characteristic of a residential service. Each
individual resident does not have a right to occupy the whole of the
premises. It is not intended that shared tenancy arrangements, such as a
group of students sharing a house, be included in this definition.
Subclause (2) provides for the type of service where residents may be
provided with self contained units but a food or personal care service is
provided. This arrangement commonly exists for older residents and
persons in supported accommodation.
Subclause (3) allows further categories of services to be included in the
definition under a regulation provided any such service meets the two
fundamental criteria of 4 or more residents and accommodation being the
main purpose of the service.
Subclause (4) specifies that the rooms of a residential service do not have
to be in the same premises.
Subclause (5) specifically excludes certain types of services such as
those that are already covered by other legislation or accreditation schemes.
Paragraph (f) excludes services run by non-profit organisations where
the risk to residents is much lower. The Bill is primarily directed at private
operators.
Clause 5 specifies the meaning of "resident". To be a resident in a
residential service a person must occupy the room as their only or main
residence. The term does not include the service provider, relatives or
employees of the provider.
Clause 6 specifies the meaning of "service provider". The service
provider for a service is the person registered as the provider or who was
registered. Otherwise the person conducting the service is the service
provider.
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Residential Services (Accreditation) Bill 2002
Division 3--Application and object
Clause 7 provides that the Act binds all persons including the State and
the Commonwealth as far as possible. The State and Commonwealth are
not made liable for an offence under the Act.
Clause 8 provides for the object of the Act and the way the object is to be
achieved.
PART 2--REGISTRATION
Division 1--Requirement to be registered
Clause 9 specifies that a person must not conduct a residential service in
premises unless the service is registered under the Act and the person is the
service provider for the service and the premises are the registered
premises for the service. This clause provides for a maximum penalty of
200 penalty units ($15,000).
Subclause (2) makes an offence against subclause (1) a continuing
offence and provides that a person may be charged in one or more
complaints for periods the offence continues. The maximum penalty for
each day the offence continues after a conviction against subclause (1) is 5
penalty units ($375).
Division 2--Registration process
Clause 10 sets out the application process for a person proposing to
conduct a residential service. An application may be made to the chief
executive for registration of the service. The application must be in the
approved form and accompanied by:
a signed consent from the applicant and his/her associates that a
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criminal history check be undertaken by the chief executive;
a building compliance notice and a fire safety document; and
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the fee prescribed under a regulation.
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Residential Services (Accreditation) Bill 2002
The applicant must provide any other relevant information and
documents reasonably required by the chief executive to decide the
application.
Subclause (4) specifies that the chief executive must decide the
application by registering the service or refusing to register the service.
This decision is a reviewable decision and the Act provides for a system of
review and appeal in Part 10.
Subclause (5) sets out some parameters for the exercise of the chief
executive's discretion. If the chief executive is satisfied that the applicant
and each associate are suitable persons and the premises comply with the
requirements relating to safety and suitability prescribed under a regulation
he or she must register the service.
Clause 11 provides that the chief executive must decide an application
as soon as practicable and sets a limit of 60 days as an outside timeframe.
The 60 days run from the day the application is made but can be extended
in situations where the chief executive asks for more information or
documents. The due day for deciding applications may be extended by
agreement between the chief executive and the applicant.
A failure to decide the application by the due day means that the chief
executive is deemed to have refused to register the service on the day after
the due day.
Clause 12 requires the chief executive to give the service provider a
registration certificate stating specified details immediately after
registering a residential service.
Clause 13 provides that the registration of a residential service continues
until it is cancelled under the Act.
Clause 14 provides that two or more persons may be registered as the
service providers for a residential service.
Subclause (2) specifically provides that a reference in the bill to the
service provider for a residential service where there are two or more
service providers is a reference to each of those providers.
Subclause (3) provides that subclause (2) applies subject to a contrary
intention in the Act.
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Residential Services (Accreditation) Bill 2002
Division 3--Cancellation of registration
Clause 15 sets out the circumstances in which the chief executive may
cancel the registration of a residential service. If the chief executive is
satisfied that the service provider or an associate is not a suitable person or
the premises do not comply with the prescribed building requirements;
there is no fire safety management plan or the service has ceased to be
conducted for at least 3 months, registration may be cancelled.
Subclause (2) provides for a show cause notice to be given to the service
provider where the chief executive is proposing to cancel the registration.
Notice must include the reasons for the proposed cancellation and allow the
service provider at least 30 days to give a written response stating why the
provider considers the registration should not be cancelled.
Subclause (3) provides that the chief executive must consider any
response from the service provider and may then by notice given to the
service provider cancel the registration.
Subclause (4) provides that such a cancellation takes effect on the day
stated in the notice but it must be at least 14 days after the notice is given.
Subclause (5) in cases where the chief executive decides not to cancel
the registration, the service provider must be given notice of the decision.
Subclause (6) provides that the registration may be cancelled without
complying with subclauses (1), (2) and (4) at the service provider's written
request or written agreement.
Clause 16 requires a service provider whose registration has been
cancelled to return the registration certificate to the chief executive within
14 days of the cancellation. Failure to do so constitutes an offence with a
maximum penalty of 50 penalty units ($3,750).
Division 4--Suitability of service provider and associates
Subdivision 1--Preliminary
Clause 17 provides that this division applies to the chief executive in
deciding if a service provider or an associate of a service provider is a
suitable person.
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Residential Services (Accreditation) Bill 2002
Clause 18 provides that for the purposes of this division "applicant"
means an applicant for registration of a residential service and an applicant
to become the service provider of an existing residential service. Service
provider includes an applicant.
Clause 19 specifies who is an associate of a service provider. A person
who takes part in the management of the residential service for the service
provider is an associate. Two examples are given in the Act. The key
element is that the associate is involved in the management of the service
for the service provider.
Subclause (2) specifies that merely collecting rental payments or
carrying out care taking duties for the service provider does not make a
person an associate.
Subclause (3) ensures that prospective associates of applicants are
considered where possible.
Subdivision 2--Bases for deciding suitability
Clause 20 provides that a child is not a suitable person.
Clause 21 specifies that an individual is only suitable if they have the
qualifications prescribed under a regulation.
Clause 22 provides that an individual is not a suitable person if that
individual is an undischarged bankrupt or taking advantage of a law about
bankrupt or insolvent debtors. Similar provisions apply to corporations.
Clause 23 allows the chief executive, when considering suitability, to
have regard to a person's criminal history with particular stress on any
conviction for an offence against a residential services Act or a similar law
in another jurisdiction.
If a person has been convicted within the previous 5 years of a
disqualifying offence the chief executive is obliged to determine that the
individual is not a suitable person unless the chief executive is satisfied it
would be reasonable to decide otherwise because of the exceptional
circumstances of the case. A disqualifying offence is defined in Schedule 2
as meaning a variety of offences including an offence involving fraud or
dishonesty and punishable by three or more years imprisonment; an
offence against Part 4 or 5 of the Criminal Code or offences outside
Queensland which would be offences under Part 4 or 5 of the Criminal
Code if committed in Queensland.
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Residential Services (Accreditation) Bill 2002
Subclause (3) specifies that if a person refuses to consent to the chief
executive conducting a criminal history check, the chief executive must
decide the individual is not a suitable person.
Subdivision 3--Obtaining information about criminal history
Clause 24 requires the commissioner of the police service to provide the
chief executive with a criminal history report about service providers,
associates and applicants upon receipt of a written request from the chief
executive.
Subclause (1) requires that the associate has given the chief executive
written consent to the criminal history check being performed.
Subclause (3) specifies that the commissioner must prepare the report
from information in the commissioner's possession or to which the
commissioner has access. The commissioner may be able to access
national databases which indicate whether other police services hold
relevent history about a person.
Clause 25 specifies that the information contained in the criminal history
report obtained from the commissioner of police service must not be used
for a purpose other than deciding whether the person is a suitable person
under the Act.
When making such a decision the chief executive must have regard to
specified matters such as when the offence was committed; the nature of
the offence and its relevance to the decision; and whether the person is a
service provider or an associate.
Clause 26 requires that the chief executive before using information in a
criminal history report disclose the information to the person and allow
them a reasonable opportunity to make representation about the
information.
Clause 27 provides for the destruction of criminal history reports in
certain circumstances. It specifies that the chief executive must destroy the
report as soon as practicable after the latest of three things:
for a conviction mentioned in the report--the end of the period to
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appeal against the conviction or the finalisation of an appeal
against the conviction and any appeal from that appeal;
the end of the appeal period under the Act;
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Residential Services (Accreditation) Bill 2002
the final determination of any appeal taken or any appeal from
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that appeal.
Division 5--Compliance with prescribed building requirements
Clause 28 provides that a regulation may prescribe the requirements for
the premises in which a residential service is or will be conducted to ensure
that the premises are safe and suitable. It is necessary to make such
provision in this Act to ensure that appropriate protections are in place for a
vulnerable section of the community. The general legislation relating to
building requirements does not apply the stringent safeguards to some of
the smaller premises that are considered necessary in the case of a
residential service.
Clause 29 requires local governments to certify whether premises
comply with the prescribed building requirements and requires that
notification be given of any decision made. The section authorises local
governments to charge a reasonable fee for this service.
Clause 30 applies to an appeal under the previous section and establishes
an appeal mechanism from decisions of the local government regarding
compliance with building requirements. An applicant may appeal an
adverse decision or a failure to make a decision within the specified period
of 20 days to a tribunal under the Integrated Planning Act 1997.
Clause 31 specifies that where the tribunal makes a decision on an
appeal that decision becomes, for the purposes of this Act, the decision of
the local government.
Clause 32 ensures that a decision of a local government is not invalid
merely because it was made outside the 20 day time limit or notification is
outside the time limit.
Division 6--Fire safety requirements
Clause 33 states the prescribed fire safety document required for
registration of a residential service, renewal of level 1 accreditation or
amendment of the registration of a service where new premises are
involved.
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Residential Services (Accreditation) Bill 2002
Subclause (2) provides that in the specific case of premises that are a
budget accommodation building and a development application has been
made which required a fire safety management plan and a decision notice,
stating that the application was approved, was issued in the last 12 months,
the prescribed fire safety document is a copy of the decision notice. This
provision ensures that there is no duplication of existing requirements
under other legislation relating to standards of premises. It ensures that
owners of premises have one standard to meet to satisfy fire safety
concerns.
Subclause (3) makes provision for those cases where no other legislation
requires compliance to a fire safety standard. In such cases, the prescribed
safety document for the premises is a fire safety management plan. "Fire
safety management plan" is defined in schedule 2 as meaning for premises
that are a budget accommodation building--see the Fire and Rescue
Service Act 1990, section 104FC. For other premises, section 72 of this Act
requires a person operating a residential service to have a plan complying
with the requirements prescribed under a regulation.
PART 3--ACCREDITATION
Division 1--Preliminary
Clause 34 gives a broad explanation of the accreditation scheme for
residential services. There are 3 levels of accreditation and a residential
service may be accredited at more than 1 level. The levels of accreditation
required depend on the services provided. All residential services must be
accredited at level 1. Level 2 accreditation is required where the service
provided includes the provision of a food service. If a personal care service
is to be provided, level 3 accreditation is required. A definition of
"personal care service" is provided in the dictionary in schedule 2.
Division 2--Requirement for accreditation
Clause 35 requires a person must not conduct a residential service unless
it is accredited at level 1. An application for accreditation must be made
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Residential Services (Accreditation) Bill 2002
within 6 months of registration or such time as is granted by an extension
under Section 46--the due day.
Registration of a residential service is automatically cancelled after the
due day unless the service is accredited or there is a current application for
accreditation.
Where registration is cancelled the chief executive must give written
notice to the service provider.
Clause 36 sets out the requirements for a service provider applying to be
accredited at level 2. The due day is 6 months after a food service begins
to be provided or as extended under section 46.
Subclause (2) provides that a food service is taken to continue during
any break in the services of less then 30 days. This ensures that minor
breaks in service that may occur in a business operation do not require new
applications for accreditation to be made.
Subclause (3) prevents a service provider from providing a food service
after the due date unless accredited at level 2. To do so is an offence with a
maximum penalty of 200 penalty units ($15,000).
Subclause (4) provides that an offence is not committed where there is a
current application for accreditation on the due day.
Upon this application being withdrawn, lapsing or being granted
subsection (3) applies. Where the application is refused, subclause (3)
applies on the day stated in the notice given under section 47(6).
An offence against subsection (3) is a continuing offence. The
maximum penalty for each day the offence continues after a conviction is 5
penalty units ($375).
Clause 37 makes special provision for a case where a service provider
has been providing a food service, applies for accreditation and fails to
receive it, ceases to provide the food service and then wishes to commence
providing the service some time in the future. The provider must not start
providing a food service until at least 6 months after the day of cessation,
maximum penalty 200 penalty units ($15,000). An offence against the
section is a continuing offence with 5 penalty units applicable for each day
the offence continues after a conviction.
Clause 38 sets out the due day for a service provider applying to be
accredited at level 3. The due day is 6 months after a personal care service
begins to be provided or as extended under Section 46.
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Residential Services (Accreditation) Bill 2002
Clause 39 makes special provision for a case where a service provider
has been providing a personal care service, applies for accreditation and
fails to receive it, ceases to provide the personal care service and then
wishes to commence providing the service some time in the future. The
provider must not start providing a personal care service until at least 6
months after the day of cessation. A breach of this provision carries a
penalty of 200 penalty units ($15,000). An offence against the section is a
continuing offence with 5 penalty units applicable for each day the offence
continues after a conviction.
Clause 40 it is an offence for a service provider of an accredited service
to contravene a condition of the accreditation. The offence carries a
maximum penalty of 100 penalty points ($7,500).
Division 3--Accreditation Decisions
Clause 41 specifies the meaning of "accreditation decision". Such a
decision includes 3 elements--
whether to accredit the service at the particular level and if so for
�
what period;
or the conditions that apply; or
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whether to renew, revoke or amend the accreditation of the
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service.
Clause 42 specifies the criteria the chief executive must have regard to
when making a level 1 accreditation decision. The criteria address such
things as the extent which the service provider recognises and observes
residents' rights, the standard of registered premises and facilities, the way
the service is managed and conducted and any other matter relevant to the
first three criteria that is prescribed under the regulations.
Clause 43 specifies the relevant criteria when making a level 2
accreditation decision. The criteria in this case relates to a quantity, quality,
variety and the nutritional value of the food provided; the preparation,
delivery, service and storage of the food and any other relevant matter
prescribed under the regulations.
Clause 44 specifies the relevant criteria when making a level 3
accreditation decision as including the extent to which the service provider
provides the personal care service in a way that meets the individual needs
of the residents, protects their interests and maintains and enhances their
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Residential Services (Accreditation) Bill 2002
quality of life generally. Again, a matter relevant to such considerations
can be prescribed under the regulations.
Division 4--Accreditation Process
Clause 45 establishes a self-assessment scheme for service providers
applying for accreditation of a residential service. The chief executive
supplies such a provider with self-assessment material relevant to the
particular level of accreditation being sought. The provider commences to
provide the accommodation, food service or personal care service and uses
the self-assessment material to assess the way the service is being provided
against the criteria for that accreditation level.
Clause 46 provides for the due day for applying for accreditation.
Division 2 sets out the due day for an application for accreditation
according to the level of accreditation sought. Subclause (2) provides that
the chief executive may extend the due day for an application for
accreditation at the service provider's request. Such extension must be by
way of written notice. When making such decisions the chief executive
must have regards to factors such as the extent of the service provider's
preparations for making the application; the extent to which the service
provider has improved the service to which the accreditation relates and
any other relevant matter.
Clause 47 sets out the requirements for applying for accreditation. Once
a service provider has completed the self-assessment material an
application may be made to the chief executive for accreditation of the
residential service.
The application must meet the criteria set out in subclause (2). The
service provider must also provide any other relevant information and
documents reasonably required by the chief executive to decide the
application as required by subclause (3).
Subclause (4) requires the chief executive to make a decision to either
grant the application or refuse to accredit the service.
Subclause (5) gives the chief executive the power to grant accreditation
on conditions that the chief executive considers appropriate. Examples of
appropriate conditions are given in subclause (5).
Subclause (6) specifies what occurs where the chief executive decides to
refuse to accredit the residential service. In that case, the chief executive
must give the service provider a written notice of the decision stating a day
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Residential Services (Accreditation) Bill 2002
on which the service provider must cease conducting or providing the
particular service. This must be no sooner than seven days after the notice
is given.
Clause 48 requires the chief executive to give the service provider an
accreditation certificate where a residential service has been accredited at
level 1. The certificate must state certain matters which are set forth in
subclause (1).
Subclause (2) allows the chief executive to amend the certificate if a
residential service is subsequently accredited at level 2 or 3.
Subclause (3) requires the chief executive to amend the accreditation
certificate where the level 2 or 3 accreditation is cancelled.
Subclause (4) allows the chief executive to replace an accreditation
certificate rather than amending it under the earlier subsections.
Clause 49 specifies that accreditation of a residential service does not
have affect for a period longer than 3 years. A service can be accredited for
less than 3 years.
When deciding a period for which to accredit a residential service at
level 2 or 3, the chief executive may have regard to the due day for expiry
of another level at which the service is accredited.
This provision does not limit division 3 which relates to accreditation
decisions.
Clause 50 allows a service provider to apply to the chief executive for
renewal of the accreditation of the service.
Subclause (2) specifies that such an application must be made before the
accreditation is due to expire, but no earlier than 3 months before the
expiry date.
Subclause (3) specifies the form and other particulars that such an
application must comply with.
Subclause (4) allows the chief executive to require a service provider to
provide any other relevant information and documents where it is
reasonable to do so.
Subclause (5) requires the chief executive to decide an application for
renewal by either renewing the accreditation or refusing to renew the
accreditation. Such decisions are reviewable decisions under the Act.
Subclause (6) specifies that accreditation may be renewed for no longer
than 3 years after the expiry date.
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Residential Services (Accreditation) Bill 2002
Subclause (7) allows accreditation to continue in the case where an
application is still current on the expiry day. Accreditation continues until
the application is decided, withdrawn or lapses.
Subclause (8) if renewal of accreditation is to be refused the service
provider must be given written notice of the decision stating the day on
which the accreditation ends. This must be no sooner than 7 days after the
notice is given. The accreditation continues in force until that day.
Clause 51 allows the service provider to request an extension of the
accreditation period in order to make an application for renewal of the
accreditation. If the chief executive is satisfied that it would be reasonable
in all the circumstances to do so, the application may be granted. Such a
decision must be made before the expiry of the accreditation period.
Clause 52 sets out circumstances in which an application may lapse.
Subclause (1) provides that this section applies in the case of an application
for accreditation or renewal of accreditation.
Subclause (2) specifies the way in which the chief executive may make a
requirement under Section 47(3) or 50(4) for information to decide an
application. The chief executive must give the service provider a notice
stating the required information; the time by which the information is
required and the notice must state that if the information is not given to the
chief executive by the stated time, the application will lapse.
Subclause (3) requires the time stated be reasonable and at least 14 days
after the requirement is made.
Subclause (4) allows the chief executive to give the service provider an
extension of time where the chief executive is satisfied it would be
reasonable in all the circumstances to do so.
Subclause (5) specifies that if the service provider does not comply with
the requirement within the stated time or any extension, the application
lapses.
"Information" is defined in the dictionary as including a document.
Division 5--Dealings with accreditation
Clause 53 provides that the service provider may apply to the chief
executive for an amendment of the accreditation. The application must be
in the approved form and accompanied by any fee prescribed. The chief
executive must either amend their accreditation in the way applied for; or
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Residential Services (Accreditation) Bill 2002
amend the accreditation in another way with the applicant's written
agreement; or refuse to amend the accreditation.
A residential service provider may not use an application for amendment
to gain accreditation at a different level. This can only be done by an
application for accreditation at the new level.
Clause 54 specifies that the chief executive may amend the accreditation
of a residential service at any time without receiving an application from
the service provider if satisfied as to the matters set out in paragraphs (a) -
(d) of subclause (1).
Subclause (2) provides that before amending the accreditation of a
residential service in such circumstances the chief executive must give the
service provider a notice stating various matters set out in the subsections.
A service provider must be fully informed about the proposed amendment,
the reasons for the amendment and be given a stated time of at least 28 days
to give the chief executive a written response.
Subclause (3) provides that after considering any response from the
service provider the chief executive may make some or all of the proposed
amendment. Such a decision is a reviewable decision under the Act.
Subclause (4) provides that where the chief executive decides to not
amend the accreditation notice must be given to the service provider.
Subclause (5) if the service provider requests in writing or agrees in
writing, the chief executive may amend an accreditation without giving a
show cause notice, or may amend an accreditation in a way that has not
been stated in the show cause notice, or amend an accreditation before the
expiration of the time stated in a show cause notice, for the service
provider's response to the proposed amendment.
Clause 55 provides for the urgent amendment of accreditation if
necessary for the interests or wellbeing of the residents in an accredited
service.
Clause 56 provides that any amendment of the accreditation of a
residential service takes effect when the chief executive gives written
notice to the service provider or at a time stated in the notice.
Clause 57 sets out the circumstances in which the chief executive may
cancel the accreditation of a residential service. The section makes
provision for the chief executive to give the service provider a show cause
notice stating the relevant information before cancelling any accreditation.
The chief executive is required to consider any response given by a service
provider.
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This section also allows the chief executive to cancel the accreditation of
a residential service without complying with the normal notification
provisions in cases where the service provider requests the cancellation in
writing.
Division 6--Dealing with accreditation certificate
Clause 58 provides that where an accreditation is amended the service
provider must upon receipt of a written request from the chief executive
return the accreditation certificate to the chief executive for notation of the
amendment. Failure to do so constitutes an offence with a maximum
penalty of 5 penalty units ($375).
Where accreditation is cancelled the accreditation certificate must be
returned within 14 days. Failure in this instance carries a maximum
penalty of 20 penalty units ($1500).
Clause 59 allows the chief executive to amend the information on the
certificate upon notification from a service provider as to a change in
details.
Clause 60 allows a service provider to apply to the chief executive for a
replacement accreditation certificate. Where the chief executive is
satisfied that the certificate has been lost, stolen, destroyed or damaged in a
way or to an extent to require its replacement, the chief executive must
grant the application.
PART 4--CHANGES AFFECTING REGISTRATION OR
ACCREDITATION
Division 1--Change of service provider
Clause 61 makes provision for becoming a service provider. Subclause
(1) states that a person may apply to the chief executive to be registered as
a service provider for a registered service.
Subclause (2) states the requirements for an application including details
of the existing service provider and a signed consent by the applicants to a
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criminal history check. Part 2 of the Act requires that service providers and
their associates be suitable persons. Criminal history is a factor that may
be considered in making this assessment.
Subclause (3) allows the chief executive to require the provision of other
relevant information and documents.
Subclause (4) requires the chief executive to decide an application by
either registering, or refusing to register the applicant. Such a decision is a
reviewable decision under the Act.
Subclause (5) requires the chief executive to register the applicant as the
service provider where the chief executive is satisfied the applicant and his
or associates are suitable persons. The criteria for determining suitability
are set out in Division 4.
Subclause (6) requires the chief executive to give notice to the applicant
of a decision to register the applicant stating the day on which the
registration has effect.
Subclause (7) provides that where the applicant and the existing service
provider have requested a particular day for the registration to take effect, if
the application has been decided by that day the notice under subsection (6)
must specify that day as the day on which the registration has effect.
Clause 62 places an obligation on the chief executive to decide
applications as soon as practicable in the first instance by the 30th day after
an application is made. This day, the due day, may be extended where the
chief executive asks for more information or documents. It is extended by
the period within which it takes the applicant to comply with the request.
The due day may also be extended by agreement between the chief
executive and applicant.
Where the chief executive does not decide an application by the due day
it is presumed that on the day after that day, the chief executive has refused
to register the applicant. This deeming provision will allow the applicant to
exercise review rights under the Act.
Clause 63 sets out circumstances where a residential service may remain
registered but a person may cease to be the service provider for that
service. This may occur where someone else applies to become the service
provider or the person is not the only service provider for the service. In
the latter case written notice must be given to the chief executive at least 7
days prior to the cessation.
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Division 2--Change of registered premises
Clause 64 establishes the application procedure where a service provider
proposes to conduct the service in premises other than the registered
premises. An application may be made to the chief executive for
amendment of registration.
Subclause (2) sets out the requirements for an application, including
details as to whether the service will be conducted in the new and the old
premises or just the new premises. In the case of new premises a building
compliance notice and a fire safety document are required.
Subclause (3) allows the chief executive to require the production of any
other relevant information and documents.
Subclause (4) requires the chief executive to decide an application by
amending, or refusing to amend the registration, to show the new premises
as the registered premises. This is a reviewable decision under the Act.
Subclause (5) provides that the chief executive must amend the
registration to show the new premises if satisfied that the application is
made correctly and complies with subsection (2).
Subclause (6) requires the chief executive to notify the service provider
in cases where the application is granted on the day in which the
registration has affect.
Subclause (7) again requires the chief executive to comply with a request
that the registration takes effect on a stated day where possible.
Clause 65 deals with the due day for deciding applications under this
division. Again the chief executive has 30 days in the first instance. Where
further information or documents are requested this time is extended.
Again the due day may be extended by agreement between the chief
executive and the applicant. Failing to make a decision by the due day
results in a deemed refusal to amend the registration.
Clause 66 sets out the circumstances in which premises may cease to be
registered premises for the service. This occurs either by an application
under section 64 for new premises to become the registered premises, or if
the premises are not the only registered premises, by written notice given
by the service provider to the chief executive at least 7 days prior to those
premises ceasing to be registered premises.
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Residential Services (Accreditation) Bill 2002
Division 3--Other changes
Clause 67(1) requires the service provider for a residential service to
comply with this section unless the service provider has a reasonable
excuse. A failure to do so carries a maximum penalty of 50 penalty units
($3,750).
Subclause (2) requires the service provider to give the chief executive a
written notice in the approved form at least 30 days before ceasing to
conduct the residential service.
Subclauses (3) and (4) make the same provision with respect to cessation
of services related to accreditation at level 2 and 3 that is a food service or a
personal care service.
Clause 68 makes provision about changes in the associates of a service
provider. Within 30 days of a person becoming an associate of a service
provider, the service provider must give the chief executive a notice about
that person unless the service provider has a reasonable excuse. Two
separate penalties are set out for an offence under this section. If a service
provider knew, or ought reasonably to have known, that the new associate
had a conviction for a disqualifying offence the maximum penalty is 100
penalty units ($7,500), in any other case the maximum penalty is 20
penalty units ($1,500).
Subclause (2) requires service providers to notify the chief executive
where an associate ceases to be an associate of a service provider. Again, a
reasonable excuse is allowed for by the provision. The maximum penalty
for a breach of this provision is 10 penalty units ($750).
Clause 69 requires a service provider give the chief executive
notification about other changes. Such changes include a change in the
criminal history of the service provider or an associate of the service
provider; obstruction, damage, renovation or other significant changes to
the registered premises. This section also places an obligation on the
service provider to notify the chief executive about changes in any matter
relevant to the continued registration or accreditation of the service.
Where a breach of this section relates to a change in the criminal history
of the service provider or an associate of the service provider, and the
change is a conviction for a disqualifying offence the maximum penalty
applicable is 100 penalty units ($7,500). In any other case the maximum
penalty is 20 penalty units ($1,500).
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Residential Services (Accreditation) Bill 2002
Subclause (2) provides that a failure to notify the chief executive when a
conviction ceases to be part of a criminal history is not a change for the
purposes of subsection (1)(a).
Subclause (3) provides protection from self-incrimination for service
providers.
Division 4--Death of service provider
Clause 70 makes provision for where the individual is the only service
provider for a registered service and that individual dies.
In such cases, the personal representative of the individual's estate is
taken to be registered as the service provider for 6 months from the date of
death (the transitional registration period). This period may be extended
upon written application of the personal representative for a further period
of 6 months.
Subclause (6) allows a person who is registered under this section in
their capacity as personal representative to apply under section 61 to be
registered in his or her personal capacity as the service provider for the
service.
Clause 71 makes provision for matters that may occur in the first 30
days of the transitional registration period. In this period, the personal
representative may by written notice surrender the registration or
accreditation of the residential service without complying with section 67.
If the chief executive is satisfied that it is necessary to do so to ensure the
health and safety of the residents, the chief executive may amend the
accreditation of the residential service by written notice without the
requirement to give a show cause notice under section 54.
Clause 72 provides for the situation where a service provider dies and
there is more than one service provider. In such cases, surviving service
providers continue as service providers.
Division 5--Notation of changes
Clause 73 provides for the registration certificate or accreditation
certificate to be returned to the chief executive for notation of a change that
has occurred under Part 4 of the Act. The maximum penalty for a breach of
this section is 5 penalty units ($375).
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Residential Services (Accreditation) Bill 2002
PART 5--OTHER MATTERS ABOUT CONDUCT OF
RESIDENTIAL SERVICE
Division 1--Fire safety management plan
Clause 74 provides that this division does not apply to premises that are
a budget accommodation building as defined by the Building Act 1975.
Such premises are adequately covered by other legislation.
Clause 75 requires that a person have a fire safety management plan
complying with requirements in the regulation for premises where a
residential service is being conducted. Failure to do so is an offence with a
maximum penalty of 100 penalty units ($7500).
Clause 76 requires that the fire safety management plan for a premises
be updated as soon as practicable, but not later than 1 month, after a change
affecting compliance with the regulation. A failure to do so is an offence
with a maximum penalty of 100 penalty units ($7500).
The section also makes it an offence for a service provider to fail to
ensure that the current fire safety management plan is implemented. The
maximum penalty is 100 penalty units ($7500).
A copy of the plan must be kept at the premises and be available for
inspection (free of charge) to the residents. The maximum penalty for a
breach of this section is 20 penalty units ($1500).
Division 2--Records
Clause 77 requires the service provider for a residential service to keep
the records prescribed under a regulation for the time prescribed under a
regulation. The maximum penalty for a breach of this provision is 10
penalty units ($750).
Clause 78 provides for residents to be given access to records about
themselves either personally or by authorising another person, or to take a
copy of the record. Subclause (3) sets out the time in which residents must
be given access to their records. Again the maximum penalty for a breach
of this provision is 10 penalty units ($750).
Clause 79 ensures the confidentiality of records kept about residents. If
records contain personal information about a resident they must be kept in
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Residential Services (Accreditation) Bill 2002
a way that ensures that no one has access to them other than an authorised
person for the service, or the residents. The maximum penalty for a breach
of this provision is 20 penalty units or ($1,500).
Subclause (2) prevents an authorised person for a residential service who
has access to personal information about residents, from disclosing any
information to anyone other than another authorised person or the resident.
Again the maximum penalty is 20 penalty units ($1,500).
Subclause (3) provides that subsections (1) and (2) do not apply to the
giving of access to a record or the disclosure of information about a
resident for a purpose of this Act or with the resident's consent or as
permitted or required by another Act.
Authorised person for the purposes of this section means the service
provider or a person employed in the service by the service provider.
Personal information about a resident means information about the
resident's health or financial affairs or such other information as is
prescribed under a regulation.
"Records of a residential service" is also defined.
Clause 80 ensures that services that are no longer registered and persons
who are no longer residents are covered by the provisions relating to
confidentiality and access to records.
Division 3--Other matters
Clause 81 specifies that a service provider must not pay an amount to or
receive an amount from another service provider for helping or allowing a
resident to change accommodation between the registered premises. The
maximum penalty for a breach of this section is 100 penalty units or
($7,500).
Clause 82 prevents service providers from exercising or purporting to
exercise powers under a power of attorney given by a resident in the service
in favour of the service provider. The maximum penalty for a breach of this
section is 100 penalty units or ($7,500).
Clause 83 requires a service provider to display at a place likely to be
seen by residents the registration certificate and accreditation certificates in
force for the service.
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Residential Services (Accreditation) Bill 2002
The maximum penalty for a breach of this offence is 5 penalty units
($375).
PART 6--APPOINTMENT OF ADMINISTRATOR
Division 1--Appointment
Clause 84 provides that the Queensland Building Tribunal may appoint a
person as administrator to a registered service.
Clause 85 sets out the criteria the tribunal must consider before
appointing an administrator and the process for commencing such a
procedure. The chief executive may apply to the tribunal for an order
appointing a stated person to a registered service.
The tribunal must be satisfied that the order is necessary to protect the
health or safety of the residents in the service and the proposed appointee is
suitable and eligible for appointment under section 86
.Subclause (4) sets out the matters the tribunal must have regard to in
making its decision. It is clear from the matters listed that the primary
objective of the appointment is to protect residents who couldn't otherwise
look after themselves.
Clause 86 sets out the criteria the tribunal must consider when
determining if an administrator is a suitable and eligible person for
appointment.
Subclause (2) specifies the types of persons ineligible for appointment as
an administrator.
Subclause (3) requires a proposed appointee to disclose to the tribunal
any conflicts of interest, criminal history and whether or not they are
ineligible for appointment. The maximum penalty for failing to disclose a
criminal history is 100 penalty units ($7,500). In any other case the
maximum penalty is 20 penalty units ($1500).
Clause 87 deals with the terms of appointment and sets out the matters
that must be contained in the appointment.
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Residential Services (Accreditation) Bill 2002
Clause 88 provides that when the tribunal appoints an administrator, the
chief executive must give a copy of the order to the service provider, unless
the chief executive knows that the service provider has a copy already.
Clause 89 ensures that the chief executive keeps residents informed
about the appointment of an administrator and gives examples of the ways
in which this may occur.
Clause 90 provides that an administrator may be appointed for a period
of not more than 3 months, which may be extended for a further 3 months
if the Tribunal is satisfied that it is necessary. Residents must be informed
about any extension of an administrator's period of appointment.
Division 2--Function and powers
Clause 91 sets out the function of an administrator. The function is
basically to provide services to residents, under the terms of appointment,
that the service provider has agreed to provide in the course of a residential
service. The provision requires that the instrument of appointment state the
services to be provided and the way in which or the extent to which those
services are to be provided.
Clause 92 gives the administrator the powers to carry out his or her
function including the power to enter any part of the registered premises,
other than a resident's room; the same right of entry to a resident's room
that the service provider has under Part 7 of the accommodation Act; to use
the facilities in the premises and to use food or other goods of the premises
that are intended for use or are ordinarily used to provide the relevant
services.
Clause 93 authorises the administrator to give written notices to
residents regarding payment of rental due to the service provider under the
accommodation agreement.
When an administrator requires a resident to make a rental payment
under this section, it is taken that a requirement in the accommodation
agreement to pay the service provider becomes a requirement to pay the
administrator.
Subclause (3) provides for the action that an administrator may take if a
resident fails to pay rent.
Subclause (4) limits the administrator to requiring amounts that are
reasonably required to carry out his or her functions.
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Residential Services (Accreditation) Bill 2002
Subclause (5) requires the administrator to give residents receipts and to
make a copy of the receipt or other record of payment.
Subclause (6) specifies that the administrator may only use any money
collected under this section to carry out the administrator's functions.
Subclause (7) requires the administrator to immediately pay any amount
that is not needed to carry out the administrator's function to the service
provider.
Subclause (8) requires the administrator to pay the service provider any
remaining amount received under this section that is left at the end of the
administrator's appointment.
Subclause (9) specifies that subsections (7) and (8) apply subject to
section 98. Section 98 allows the chief executive to recover the cost of
appointing an administrator from the service provider.
Subclause (10) defines "accommodation agreement".
Clause 94 provides an administrator is subject to the chief executive's
direction in performing the administrator's function and exercising the
powers given under this part.
Clause 95 requires an administrator to comply with a request to produce
the instrument of appointment before exercising or proposing to exercise a
power under this part.
Clause 96 makes it an offence for a person to obstruct an administrator
in the exercise of a power without reasonable excuse. The maximum
penalty for a breach of this provision is 10 penalty units ($750).
Subclause (2) provides that where a person has obstructed the
administrator and the administrator wishes to proceed with the exercise of
the power, the administrator must warn the person that it is an offence to
obstruct the administrator without reasonable excuse and that their conduct
is considered an obstruction.
Subclause (3) specifies that obstruct includes hinder and attempt to
obstruct.
Division 3--Other matters
Clause 97 establishes that an administrator is entitled to be paid the
reasonable amount of remuneration agreed with the chief executive.
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Residential Services (Accreditation) Bill 2002
Clause 98 makes the service provider liable for remuneration and other
costs where an administrator is appointed.
Subclause (1) provides that the chief executive may give the service
provider a written demand for the amount of an administration cost.
Subclause (2) provides that the chief executive may recover the amount
as a debt owed to the State.
Subclause (3) allows the chief executive to recover such cost at any time
during or after the appointment from an amount held by the administrator
under section 93.
Subclause (4) defines "administration costs" as meaning the
remuneration paid to the administrator and any other reasonable cost
incurred in carrying out the administrator's function.
Clause 99 requires an administrator to give the chief executive a record
of all receipt and payments under section 93 and such other reports that the
chief executive requires. In turn, the chief executive must give a copy of
each record or report to the service provider.
Clause 100 gives a person a right to claim compensation from the chief
executive, if that person incurs loss or damage because of the exercise or
purported exercise under this Act. The jurisdiction in which compensation
may be claimed is determined by the amount of compensation being
claimed. The court may order compensation only if satisfied it is just to
make the order in the circumstances of the particular case.
Clause 101 provides that where a service provider can not be located
after making reasonable inquiries, any requirement on the chief executive,
an administrator or under the Queensland Building Tribunal Act 2000 to
give to or serve a document on that service provider does not apply.
PART 7--ASSOCIATED ACCREDITATION OFFICERS
Clause 102 allows the chief executive to appoint associated accreditation
officers. Before doing so the chief executive must be satisfied that the
person has the necessary expertise or experience to be an associated
accreditation officer or that the person has satisfactorily completed the
training approved by the chief executive.
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Residential Services (Accreditation) Bill 2002
Clause 103 specifies that an associated accreditation officer has the
function of helping the chief executive to make accreditation decisions. It
is anticipated that associated accreditation officers will be industry or
community representatives and that their inclusion in the assessment
process will help foster a culture of continuous improvement within the
industry.
Clause 104 requires associated accreditation officers to disclose any
interests, financial or otherwise that could conflict with the proper
performance of their duties to the chief executive.
Subclause (2) requires that the chief executive must ensure that the
officer does not take part or take further part in helping make the
accreditation decision unless the chief executive is satisfied that the interest
does not conflict with the proper performance of the officer's function.
Subclause (3) requires associated accreditation officers who carry out
activities from time to time to represent the interests of service providers
generally or residents generally to disclose the nature of these activities to
the chief executive.
Subclause (4) requires a person who has an interest of the nature
outlined in the earlier subsections to disclose the interest or the nature of
the activities to the chief executive before being appointed as an associated
accreditation officer.
PART 8--INVESTIGATION AND ENFORCEMENT
Division 1--Authorised officers
Clause 105 provides that the purpose of this part is to provide for
monitoring and enforcing compliance with the Act.
Clause 106 allows the chief executive to appoint a person as an
authorised officer where the chief executive is satisfied the person has the
necessary expertise or experience.
Clause 107 provides that an authorised officer holds office on the
conditions stated in the officer's instrument of appointment, or a signed
notice given to the officer or a regulation.
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Residential Services (Accreditation) Bill 2002
Subclause (2) specifies that the conditions, however imposed, may limit
the officer's powers under this Act.
Subclause (3) specifies that a signed notice is a notice signed by the chief
executive.
Clause 108 specifies when an authorised officer ceases to hold office.
Subclause (1) sets out these specific circumstances in which an authorised
officer may cease to hold office. However subclause (2) specifies that this
does not limit the ways an authorised officer may cease to hold office.
Clause 109 provides that an authorised officer may resign by signed
notice given to the chief executive.
Subclause (2) provides that if the officer resigning holds another office
which is conditional upon his or her appointment as an authorised officer,
then he or she must also resign from that other office.
Clause 110 provides that the chief executive must issue an identity card
to each authorised officer. The card must contain a recent photo of the
officer, a copy of the officer's signature and identify the person as an
authorised officer under this Act and state an expiry date for the card. This
section specifies that a single identity card may be issued to a person for
this Act and for other purposes.
Clause 111 deals with the return of an identity card where a person
ceases to be an authorised officer within a specified time unless the person
has a reasonable excuse. A breach of this section carries a maximum
penalty of 10 penalty units or ($750).
Clause 112 is the provision that requires an authorised officer to produce
their identity card before exercising a power under the Act. Alternatively
the authorised officer can have the identity card displayed so it is clearly
visible when exercising a power under the Act.
Subclause (2) allows the production of the identity card at the first
reasonable opportunity where it is not practicable to comply with the
previously outlined requirements.
Subclause (3) specifies that an authorised officer is not exercising a
power in relation to a person merely because the officer has entered a place
as mentioned in section 113(1)(b) or (3). These provisions allow entry to a
place where it is a public place and the entry is made when it is open to the
public or in circumstances where the officer has entered a place for the
purpose of seeking the occupiers consent to enter that place.
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Division 2--Powers of authorised officers
Subdivision 1--Entry of places
Clause 113 sets out the circumstances in which an authorised officer
may enter a place. Entry may occur where the occupier of the place
consents to the entry; or it is a public place and the entry is made when it is
open to the public; or the entry is authorised by a warrant.
Subclause (2) deems the service provider for registered premises to be
the occupier for all parts of the premises other than a room occupied by a
person as their place of residence.
Subclause (3) allows an authorised officer to enter certain places without
the occupier's consent or a warrant, where they are doing so for the purpose
of asking the occupier for consent to enter. In such cases, an officer may
enter land around a building to the extent that is necessary to contact the
occupier or the part of the place that the officer reasonably considers
members of the public ordinarily are allowed to enter when they wish to
contact the occupier.
Subdivision 2--Procedure for entry
Clause 114 sets out the procedure for entry where an authorised officer
intends to ask an occupier of a place to consent to that entry.
Subclause (2) provides that the officer must tell the occupier the purpose
of the entry and the fact that the occupier is not required to consent before
asking for that consent.
Subclause (3) allows the authorised officer to ask the occupier to sign an
acknowledgment of the consent in cases where consent is given.
Subclause (4) specifies the matters that must be set forth in such an
acknowledgment.
Subclause (5) requires that in cases where the occupier signs the
acknowledgment the authorised officer must immediately give a copy to
the occupier.
Subclause (6) provides that where an issue arises in a proceeding about
consent and an acknowledgment from the occupier for the entry is not
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Residential Services (Accreditation) Bill 2002
produced in evidence, the onus of proof is on the person relying on the
lawfulness of the entry to prove that the occupier consented.
Clause 115 allows an authorised officer to apply to a magistrate for a
warrant for a place. Subclause (2) provides that the application must be
sworn and state the grounds on which the warrant is sought. Subclause (3)
states that the magistrate may refuse to consider an application that does
not contain all the information about the application in the way that the
magistrate requires that information.
Clause 116 provides that the magistrate may issue a warrant only if
satisfied there are reasonable grounds for suspecting there is a particular
thing or activity (the "evidence") that may provide evidence of an offence
against this Act and the evidence is at the place or may be at the place
within the next 7 days.
Subclause (2) specifies the matters that must be stated in the warrant.
Clause 117 relates to special warrants. In urgent or special
circumstances, which may be for example, the officer's remote location, an
authorised officer may apply for a special warrant by phone, fax, radio or
other form of communication. Subclause (2) provides that before applying
for the special warrant the authorised officer must prepare and application
stating the grounds on which the warrant is sought.
Subclause (3) allows the authorised officer to apply for the special
warrant before the application is sworn. This provision takes into account
the difficulties of having documents sworn in remote locations.
Subclause (4) requires the magistrate to promptly fax a copy of the
special warrant to the authorised officer where reasonably practicable if it
is issued.
Subclause (5) outlines what a magistrate must do where it is not
reasonably practicable to fax a copy to the authorised officer. The
provision also outlines what the authorised officer must do in such cases.
The procedure ensures that the terms of the special warrant are recorded
and that the date and time the warrant is issued is also recorded.
Subclause (6) allows an authorised officer to rely on the authority of a
warrant that has been faxed or where a warrant form has been properly
completed under the previous sections.
Subclause (7) requires the authorised officer at the first reasonable
opportunity to send to the magistrate the sworn application and in cases
where a warrant form has been completed--the completed warrant form.
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On receiving the documents the magistrate must attach them to the special
warrant.
Subclause (9) places the onus of proof on the person relying on the
lawfulness of the exercise of the power to prove a special warrant where the
warrant is not produced in evidence.
Clause 118 provides the procedure where an authorised officer named in
a warrant is intending to enter a place under the warrant. Before entering
the place, the authorised officer must do or make a reasonable attempt to do
specified things--
� produce or display an identity card or other evidence of his or her
appointment as an authorised officer;
� give the person a copy of the warrant, facsimile warrant or
warrant form as the case may be;
� tell the person the officer is permitted by the warrant to enter the
place;
� give the person an opportunity to allow the officer immediate
entry without using force.
Subclause (3) allows an authorised officer to enter immediately where he
or she believes that the effective execution of the warrant will be frustrated
if the procedures outlined in subclause (2) are followed.
Subdivision 3--Powers after entry
Clause 119 sets out the general powers an authorised officer may
exercise after entering a place.
Subclause (2) specifies that an authorised officer may not exercise the
powers under this section where the officer is only entering a place to get
the occupier's consent.
Subclause (3) sets out the things that an authorised officer may do for
monitoring or enforcing compliance with this Act. In addition to outlining
the physical actions and things that an officer may do, the section requires
the occupier of the place or a person at the place give the officer reasonable
help in exercising the officer's powers or information to help the officer
find out whether the Act is being complied with.
Clause 120 ensures that the privacy of residents at registered premises is
preserved as far as practicable.
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Clause 121 makes it an offence for a person who does not give
reasonable help or information when required to do so, unless the person
has a reasonable excuse. The maximum penalty for such an offence is 50
penalty units or ($3,750).
Subdivision 4--Power to seize evidence
Clause 122 provides that the owner of a seized thing includes the person
entitled to possession of it for the purposes of this division.
Clause 123 provides that where an authorised officer enters a place that
may be entered without the occupier's consent and without a warrant, the
officer may seize a thing if the officer reasonably believes that thing is
evidence of an offence against this Act. This provision allows an officer
who has entered a public place that is open to the public to seize evidence.
Clause 124 applies where an officer is entering a place pursuant to the
consent of an occupier or a warrant. Where the authorised officer enters
the place with the occupier's consent, the officer may seize a thing at the
place if he or she reasonably believes the thing is evidence of an offence
against this Act and seizure is consistent with the purpose of entry as told
to the occupier when asking for consent. Subclause (3) specifies that
where an officer enters the place with the warrant the officer may seize the
evidence for which the warrant was issued. Subclause (4) specifies that in
either case, the authorised officer may seize anything at the place where he
or she reasonably believes the thing is evidence of an offence against the
Act, and the seizure is necessary to prevent the thing being hidden, lost,
destroyed or used to continue or repeat the offence.
Subclause (5) allows an authorised officer to seize a thing where the
officer reasonably believes it has just been used in committing an offence
against this Act.
Clause 125 specifies what an authorised officer may do with an item that
has been seized and how it must be secured.
Clause 126 makes it an offence for a person to tamper with a seized
thing.
Clause 127 sets out powers to support seizure.
Clause 128 sets out the requirements for an authorised officer who has
seized things to leave receipts. A receipt must be given either to the person
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from whom it was seized or if that is not practicable be left at the place of
seizure in a conspicuous position and in a reasonably secure way.
Receipts given under this section must describe generally each thing
seized, and its condition. Where it is not practicable or unreasonable
having regard to the thing's nature, condition and value to give a receipt, it
does not have to be given.
Clause 129 provides that a thing that has been seized under this part is
forfeited to the State in certain circumstances. A thing would be seized
where the authorised officer could not find its owner. An authorised
officer is required to make inquiries that are reasonable in all the
circumstances.
The section envisages that there may be circumstances where it is not
reasonable to to make such inquiries. It may also be unreasonable to return
a thing to its owner in all circumstances. An example of such
circumstances is given in this section. Subclause (2) states that regard must
be had to the thing's nature, condition and value in deciding whether it is
reasonable to make inquiries or efforts and what inquiries or efforts
including the period over which they are made are reasonable. It is clear
from both subsections that there will be cases where it is not reasonable to
make any inquiries or efforts.
Subclause (3) provides that upon forfeiture of a thing to the State, that
thing becomes the State's property and may be dealt with by the chief
executive as he or she considers appropriate.
Subclause (4) specifies that the chief executive may destroy or dispose of
the thing.
Subclause (5) provides a limitation on the way the chief executive may
deal with a thing that has been forfeited to the State. The chief executive
must not deal with a thing in a way that could prejudice the outcome of an
appeal to the tribunal under this Act, or another appeal of which the chief
executive is aware.
Clause 130 sets out the time period for the return of seized things that
are not forfeited. Such things must be returned to the owner at the end of 6
months, or where a proceeding for an offence involving the thing is started
within 6 months at the end of that proceeding and any appeal from the
proceeding.
Subclause (2) specifies that despite subsection (1), unless the thing is
forfeited, it must be immediately returned to its owner where the authorised
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officer stops being satisfied that it is necessary as evidence or that it is
necessary to prevent the thing being used to continue or repeat the offence.
Clause 131 allows owners to inspect and in the case of a document to
copy things that have been seized unless it is impracticable or unreasonable
to allow such inspection or copying.
Subdivision 5--Power to obtain information
Clause 132 specifies the circumstances in which an authorised officer
may require a person to state the person's name and residential address.
Subclause (1) provides that the section applies where an authorised officer
finds a person committing an offence against the Act, or reasonably
suspects the person is committing or has just committed an offence against
this Act.
Subclause (2) provides that the authorised officer may require the person
to state their name and residential address.
Subclause (3) gives the authorised officer the power to require the person
to give evidence of the correctness of the stated name or residential address
if the officer reasonably suspects the details to be false.
Subclause (4) requires a person who is required to provide information
under this section, to comply unless the person has a reasonable excuse.
The maximum penalty for non-compliance is 50 penalty units ($3,750).
Subclause (5) provides that if a person was required to provide details of
name and residential address by an authorised officer who suspected the
person was committing, or had committed an offence against this Act, or
the person was required to give evidence of the correctness of the stated
name or residential address and that person is not proved to have
committed the offence, then no offence has been committed against
subsection (4).
Clause 133 deals with the power to require information. Subclause (1)
specifies that the section applies if an authorised officer reasonably
believes an offence against the Act is being committed or has been
committed and that a person may be able to give information about the
offence. In such circumstances, the authorised officer may give notice to a
person requiring them to give information about the offence to the officer
at a stated reasonable place and at a stated reasonable time. Failure to
comply with such a notice without reasonable excuse carries a maximum
penalty of 50 penalty units or ($3,750).
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Clause 134 gives an authorised officer the power to require production
of documents from a service provider. These documents must be made
available for inspection or produced for inspection at a reasonable time and
place nominated by the officer. The documents that this section applies to
are, those required to be kept by the service provider under this Act or the
service provider's registration certificate or accreditation certificate.
The authorised officer may keep the document to copy it.
If the authorised officer copies a document that is required to be kept
under this Act, or part of that document, the officer may require the service
provider to certify the copy as a true copy of the document. The officer is
required to return any document kept for copying to the service provider as
soon as practicable.
Clause 135 makes it an offence for a service provider who has been
required to make available or produce for inspection documents, to fail to
comply with that requirement without reasonable excuse. The maximum
penalty is 50 penalty units or ($3,750).
Subclause (2) provides that despite section 136 relating to self-
incrimination, it is not a reasonable excuse for an individual not to comply
with a requirement to produce or make available a document, to state that
complying with the requirement might tend to incriminate the individual.
Division 3--Miscellaneous
Clause 136 provides that this section applies where an authorised officer
makes a requirement of an individual and under a provision of this part, it
is an offence for the individual to fail to comply with the requirement
unless the individual has a reasonable excuse.
Subclause (2) provides that the individual does not commit an offence
against the provision unless when making the requirement the authorised
officer warns the individual it is an offence to fail to comply with the
requirement without reasonable excuse.
Subclause (3) provides that it is a reasonable excuse for the individual to
fail to comply with the requirement if compliance might incriminate the
individual.
Clause 137 sets out the procedure that applies where property is
damaged as a result of the exercise or purported exercise of a power under
the Act.
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Clause 138 provides that a person may claim compensation from the
chief executive if that person incurs loss or damage because of the exercise
or purported exercise of a power under this part.
Subclause (2) provides that compensation may be claimed for loss or
damage incurred in complying with a requirement made of a person under
this part. This provision does not limit the general provision relating to
compensation under subclause (1).
Subclause (3) provides that compensation may be claimed and ordered
to be paid in a proceeding either in an appropriate court or for an offence
against this Act brought against the person claiming compensation.
Subclause (4) provides that a court may order compensation to be paid
only if satisfied it is just to make the order in the circumstances of that
particular case.
Clause 139 makes it an offence for a person to alter a current registration
certificate or an accreditation certificate without the chief executive's
written authorisation. Maximum penalty for this offence is 10 penalty
units or ($750).
Clause 140 provides that a person must not state anything to an
authorised officer that the person knows is false or misleading in a material
particular. A breach of this provision carries a maximum penalty of 50
penalty units or ($3,750).
Clause 141 makes it an offence to give an authorised officer a document
containing information that is false or misleading in a material particular.
The maximum penalty is 50 penalty units or ($3,750). No offence is
committed if the person when giving the document tells the authorised
officer how it is false or misleading and if the person has or can reasonably
obtain the correct information, gives the correct information.
Clause 142 provides that it is an offence for a person to obstruct an
authorised officer in the exercise of a power without a reasonable excuse.
The maximum penalty for such an offence is 100 penalty units or ($7,500).
Where a person has obstructed an authorised officer and the officer wishes
to proceed with the exercise of the power, the officer must warn the person
that it is an offence to obstruct the officer without reasonable excuse and
that the officer considers the person's conduct an obstruction. Obstruct
includes hinder and attempt to obstruct.
Clause 143 a person must not pretend to be an authorised officer. The
maximum penalty for this offence is 80 penalty units or ($6,000).
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PART 9--COMPLIANCE PROCESSES
Division 1--Injunctions
Clause 144 allows the chief executive to apply to the District Court for
an injunction and empowers the court to grant an injunction against a
person at any time.
Clause 145 sets out the grounds on which an injunction may be granted
under this Division. An injunction may be granted with respect to both
existing and future conduct. The grounds for granting an injunction all
relate to a contravention of the Act or conduct surrounding a contravention
of the Act. Injunctions may be granted for conduct that is an attempt to
contravene the Act; aiding, abetting, counselling or procuring a person to
contravene the Act; inducing or attempting to induce in any way a person to
contravene the Act; being involved knowingly in a contravention even
indirectly in a contravention or conspiring with others to contravene the
Act.
Clause 146 provides that the court's power to grant an injunction
restraining a person from certain conduct is not limited by considerations
as to whether or not it appears to the court that the person intends to
continue the conduct or whether the conduct has occurred in the past.
Subclause (2) makes the same provision where an injunction is sought to
direct a person to do something.
Subclause (3) makes provision for interim injunctions while an
application is being decided.
Subclause (4) empowers the court to vary or rescind an injunction at any
time.
Clause 147 allows the court to grant an injunction in the terms
considered appropriate.
Subclause (2), without limiting subclause (1), provides a specific power
to prohibit a person from conducting a residential service for a particular
stated period or on particular terms and conditions.
Subclause (3) empowers the court to grant an injunction requiring a
person to take action to remedy adverse consequences of the contravention
of the Act. This may include disclosing information or publishing
advertisements.
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Clause 148 provides that if the chief executive applies for an injunction
no undertaking as to damages or costs may be required or paid.
Division 2--Undertakings
Clause 149 provides a scheme where the chief executive, in cases where
he or she believes the Act has been contravened, can seek an undertaking,
by notice in writing, from the service provider that the act or omission will
not continue or be repeated.
Clause 150 prevents the chief executive from taking offence proceedings
against a service provider who has given an undertaking to stop conduct
that is a series of acts or omissions, the chief executive has accepted that
undertaking and the conduct has in fact stopped. Offence proceedings may
not commence unless the undertaking is withdrawn under section 151.
Clause 151(1) provides that the section applies where the chief executive
has accepted an undertaking.
Subclause (2) specifies that if the chief executive agrees the service
provider may vary or withdraw the undertaking.
Subclause (3) specifies the circumstances in which the chief executive
may vary or withdraw the undertaking. The chief executive's discretion in
this regard is limited to circumstances where he or she had a reasonable
belief that the service provider contravened the Act in another way before
the undertaking was accepted and had the chief executive known that, the
undertaking would not have been accepted in its existing form.
Subclause (4) allows the chief executive to withdraw the undertaking
where he or she reasonably believes it is no longer necessary.
Subclause (5) ensures that the chief executive gives the service provider
written notice of any variation or withdrawal of the undertaking.
Subclause (6) provides that the variation or withdrawal takes effect when
the service provider receives notification.
Clause 152 requires the chief executive to keep a register containing a
copy of each undertaking which is to be accessible by the public upon
payment of the prescribed fee.
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Division 3--Compliance notice
Clause 153 establishes a scheme whereby the chief executive can issue
compliance notices to service providers where he or she has a reasonable
belief that the Act is being contravened or the contravention is likely to be
continued or repeated. The compliance notice requires the service provider
to remedy the contravention.
The provision ensures that the service provider is fully informed about
the provision the chief executive believes has been breached and how it is
being or has been breached. The notice must specify the time by which the
breach must be remedied and that it is an offence to fail to comply with a
notice without reasonable excuse.
Subclause (4) requires further that the compliance notice must state the
steps the chief executive reasonably believes are necessary to remedy the
contravention.
Subclause (5) requires compliance with the notice in the absence of a
reasonable excuse. The maximum penalty for a breach of this provision is
the maximum penalty for a breach of the relevant provision.
Subclause (6) provides that if it is an offence to contravene the relevant
provision, a service provider cannot be prosecuted for that offence unless
the service provider has failed to comply with a compliance notice and has
no reasonable excuse.
Subclause (7) specifies that the compliance notice may refer to other
matters the chief executive considers appropriate. The example given
relates to the power to amend or cancel accreditation.
PART 10--REVIEWS AND APPEALS
Division 1--Reviewable decisions
Clause 154 provides that Schedule 1 states the decisions of the chief
executive that are reviewable decisions and for each decision the person
who may seek to have that decision reviewed ("the interested person").
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Clause 155 requires the chief executive to give notice to the interested
person after making a reviewable decision. The notice must set out the
reasons for the decision; the timeframe for applying for a review of the
decision (28 days after receipt of the notice); how to apply for review and
the existence of further appeal rights to the Queensland Building Tribunal
where the matter is not resolved on review.
Subclause (2) specifies that this notice may also contain details required
to be given under another section of the Act.
Subclause (3) provides for the case where the interested person cannot
be located after making reasonable inquiries. In this case the requirement
to give a notice does not apply.
Division 2--Review of decision
Clause 156 provides that interested persons may apply to the chief
executive for a review of a reviewable decision within 28 days of receiving
a notice about the decision under section 155. The time for applying for a
review may be extended by the chief executive.
The section details the administrative requirements of making an
application.
Clause 157 provides that the application does not stay the decision
although the chief executive has the discretion to give the interested person
a notice staying the operation of the decision for a stated period. The chief
executive may impose the conditions considered appropriate.
Subclause (4) gives an applicant the right to apply to the Queensland
Building Tribunal for a stay of the decision. The tribunal may grant the
stay to secure the effectiveness of the decision and any later appeal. The
tribunal also may grant the stay on any conditions it considers appropriate
and for a specified period providing such period does not extend beyond
the time the review decision is made and any subsequent time allowed for
appeal.
Clause 158 sets out the way that a review decision must be dealt with.
The provision ensures that a more senior officer than the original decision-
maker reviews the decision unless the decision was made by the chief
executive originally.
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The section allows 28 days after receipt of the application for a decision
to be made. The decision must confirm, amend or substitute another
decision for the original decision.
Immediately upon making the decision the chief executive must notify
the interested person as to the review decision, the reasons for the review
decision, that within 28 days they can appeal to the Queensland Building
Tribunal and how the person may appeal.
If a review decision is not made within 28 days of receiving an
application the original decision is taken to be confirmed.
Division 3--Appeal against decision
Clause 159 provides for an appeal right for an interested person after
receiving a decision notice. The appeal lies to the Queensland Building
Tribunal. An appeal must be commenced within 28 days although the
tribunal may extend this time period.
The provision also allows a person to appeal where the chief executive
has made a review decision but not given a notice.
Subclause (3) requires an appellant to attach a copy of the notice of
decision to the application filed under section 29 of the Queensland
Building Tribunal Act 2000, which is the manner in which applications are
made to the tribunal.
Clause 160 provides that an appeal to the Queensland Building Tribunal
is by way of rehearing on the evidence that was before the chief executive.
The appeal is a review of the original decision made by the chief executive.
Subclause (2) provides that a person may adduce fresh evidence in
certain circumstances with the leave of the tribunal. This ensures that
despite the operation of section 160(1) requiring that the appeal be a review
of the chief executive's decision, an appellant is not unjustly dealt with.
The section requires that fresh evidence was not known or could not
reasonably have been expected to have been known by the interested
person at the time of the original decision or review decision. Such
evidence may also be adduced where it would be unfair in the special
circumstances of the case not to admit it. These provisions reflect the
standard approach taken with respect to fresh evidence on appeal.
Subclause (3) sets out options for the tribunal where it decides to allow
fresh evidence to be adduced. The proceedings may be adjourned to allow
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the chief executive to reconsider or the proceedings may continue taking
into account the new evidence as well as the evidence that was before the
chief executive.
Subclause (4) requires the tribunal to grant the chief executive an
adjournment, for a stated reasonable time, to reconsider the decision if the
chief executive requests such an adjournment.
Making provision for the chief executive to reconsider decisions in the
light of fresh evidence ensures that matters do not proceed to a full
consideration by the tribunal unless absolutely necessary.
Clause 161 provides that the tribunal may confirm, vary or reverse the
review decision and make consequential orders. The tribunal may also set
aside whole or part of the review decision and return the matter wholly or
partly to the chief executive with directions, as it considers appropriate.
Clause 162 allows the tribunal to stay the operation of the review
decision and prescribes the limits to the exercise of this discretion.
Unless the tribunal specifically stays the operation of the review decision
it continues in force.
Clause 163 provides that any decision made by the tribunal on appeal is,
for the purposes of the Act, a decision of the chief executive.
PART 11--LEGAL PROCEEDINGS
Division 1--Evidence
Clause 164 provides that this division applies to a proceeding under the
Act. This includes appeals to the Queensland Building Tribunal under the
Act.
Clause 165 provides that the appointment of the chief executive, an
associated accreditation officer or an authorised officer or their authority to
do anything under the Act need not be proven unless a party, by reasonable
notice, requires that it be done.
Clause 166 removes the need to prove the signature of the chief
executive officer or an authorised officer.
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Clause 167 outlines other evidentiary aids relating to certificates given
by the chief executive for a range of administrative matters.
Division 2--Offence proceedings
Clause 168 provides that proceedings for an offence under the Act must
be taken in a summary way under the Justices Act 1886. The proceedings
must start within 1 year after the offence was committed or 6 months after
the offence comes to the complainant's knowledge but within 2 years of the
commission of the offence, whichever period is the later.
Clause 169 removes the need to present evidence about the
complainant's knowledge in proceedings for an offence under the Act. A
statement about the knowledge of the complaint, which starts the
proceedings, is evidence of the matter stated.
Clause 170 provides that where an offence is defined as involving false
or misleading information or statements, it is not necessary to specify
which it was.
Clause 171 applies to proceedings for an offence under the Act. This
provision makes a person responsible for the actions or omissions of their
representative, where that act is done within the scope of the
representative's actual or apparent authority, unless it can be proven that
the person could not by the exercise of due diligence have prevented the act
or omission.
Where it is relevant to an offence to prove a person's state of mind and
the act or omission is done by a representative of the person, acting within
the scope of the actual or apparent authority, then it is enough to show that
the representative had the state of mind.
For the purposes of the section "representative" and "state of mind" are
defined in subclause (4). "State of mind" includes the person's reasons for
the intention, opinion, belief or purpose as well as the actual intention,
opinion, belief or purpose.
Clause 172 requires the executive officers of a corporation to ensure the
corporation complies with the Act. It makes the executive officers of a
corporation liable for offences committed by the corporation. The
maximum penalty for such an offence is the maximum penalty applicable
to individuals in such circumstances.
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Evidence of the conviction of a corporation of an offence is evidence that
the executive officers breached this section. However, it is a defence for an
executive officer to demonstrate due diligence where the officer was able to
influence the corporation. Alternatively it is a defence for an executive
officer to prove that he or she was not in a position to influence the conduct
of the corporation.
PART 12--MISCELLANEOUS
Division 1--Reprisals
Clause 173 establishes the meaning of "taking a reprisal". A person
takes a reprisal if they cause, attempt or conspire to cause detriment to
another person because they believe that other person or someone else has
made a complaint or given information to the chief executive about the way
a residential service is conducted.
Subclause (2) includes inducing a person to cause a detriment in the
concept of detriment.
Clause 174 makes it an offence for a person to take a reprisal with a
maximum penalty of 100 penalty units or $7,500. This provision is
considered necessary to protect residents who may wish to complain about
the service provider.
Clause 175 makes a reprisal a tort and a person who takes a reprisal
liable in damages to anyone who suffers detriment as a result. A court may
grant any appropriate remedy that it can grant for a tort. If a matter goes to
trial it must be decided by a judge sitting without a jury. Whether such a
matter goes to the Supreme or District court is determined by the amount of
damages being claimed in accordance with the jurisdiction of the courts.
Division 2--Reporting matters of concern to other entities
Clause 176 places an obligation on public service officers carrying out
functions or exercising powers under the Act to report, to the chief
executive, matters that it is reasonably believed are contraventions of the
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accommodation Act. This obligation exists unless the officer knows or
reasonably supposes that the chief executive is aware of the matter or the
officer reasonably believes the contravention is trivial.
The provision is an exception to the rules about confidentiality that apply
under section 180.
The section does not apply to associated accreditation officers who are
not public servants. It is not intended that industry peers or residents
advocates who may be associated accreditation officers be obliged to report
matters to the chief executive.
Clause 177 applies to persons carrying out functions or exercising
powers under a prescribed Act who become aware of contraventions of this
Act or of matters that adversely affect the health, safety or wellbeing of a
resident in a residential service.
The matter must be reported to the chief executive unless the person
knows or reasonably supposes that the chief executive knows.
The acts that are prescribed acts for the purposes of this section are set
out in subclause (3).
Clause 178 allows the chief executive to give to the chief executive of a
department responsible for residential services in another State or territory,
information about a particular residential service if relevant.
Division 3--Other matters
Clause 179 requires the chief executive to keep a register of residential
services. The details that must be kept on the register and the way it may
be kept are outlined in the section. The register may be inspected or a
certificate obtained with information from the register upon payment of the
prescribed fee.
Clause 180 sets out the confidentiality requirements that are placed on
persons acting under the Act. This provision applies to departmental staff,
including the chief executive, as well as to associated accreditation and
authorised officers. The provision restricts the use that can be made of any
confidential information that is gained in the course of administering the
Act. The circumstances in which such information can be disclosed are set
out in subclause (2), including the normal exceptions for production of
documents to a court and under other legislation such as the Freedom of
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Information Act 1992. The maximum penalty for breaching this section is
50 penalty units ($3,750).
Subclause (3) defines "confidential information". Information about a
person that is publicly available is exempt from this definition.
Clause 181 allows the chief executive to delegate his or her powers
under the Act with the limitation on the discretion that it must be to an
appropriately qualified public service officer. The section specifies that the
delegation may include a power of subdelegation.
Clause 182 provides protection from civil liability for acts or omissions
made honestly and without negligence under the Act. The liability for such
acts or omissions instead attaches to the State, which ensures that any
persons affected by such acts, or omissions are not prevented from seeking
redress. The section specifies the officers protected.
Clause 183 provides for the approval of forms by the chief executive.
Clause 184 provides the regulation making power for the Act.
PART 13--TRANSITIONAL
Division 1--Preliminary
Clause 185 sets out the definitions for the transitional provisions.
Division 2--Registration of continuing service
Clause 186 provides that existing residential service providers must
apply for registration by the "due day" which is 2 years after this Part
commences, except where a personal care service is provided as part of the
service currently and is continued to be provided after the commencement
date. In this case application for registration must be made within 1 year
after the Part commences.
Clause 187 provides that section 9, which requires a residential service
to be registered, does not apply until the day after the due day. The due day
is the applicable day under section 186.
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Subclause (2) provides for the situation where an application to register
the service may be current on the due day but not decided. The section
specifies when section 9 will apply depending on what happens with the
application.
Clause 188 provides for the lapsing of applications in certain
circumstances. The application must have been made on or before the due
day. The section allows the chief executive to request further information,
including documents. If the applicant fails to comply with this request
within the required time and it has been made in accordance with the
requirements regarding notification set out in the section then the
application will lapse.
Clause 189 applies to an application to register a continuing service
made on or before the due date. This provision allows such services to be
registered even if the prescribed building requirements under section 9 are
not fully met, providing the premises are safe and substantially comply and
the requirements regarding suitability of individuals are complied with.
Clause 190 applies where the chief executive is satisfied as to the matters
outlined in the previous section but the building does not fully comply with
the building requirements.
Such premises may be registered, subject to appropriate conditions to
ensure that the premises are improved to a level that complies with the
requirements. A time frame may be imposed for the improvements to be
completed. This provision will ensure that service providers do not face
onerous requirements in order to be registered and will allow individual
circumstances to be taken into account.
Subclause (4) applies the provisions of part 3, division 5 to cancellation,
amendment or change of conditions to premises registered under this
section.
Subclause (5) makes it an offence for a service provider to contravene a
condition on which the service is registered with a maximum penalty of
100 penalty units or $7,500.
Clause 191 makes provision for where an application is made to register
a continuing service and the chief executive refuses the application. The
chief executive must give certain notices before the service provider is
required to cease operating.
Clause 192 requires that details of applications to register continuing
services be kept on the register for a certain period of time.
53
Residential Services (Accreditation) Bill 2002
Division 3--Accreditation of continuing services
Clause 193 applies this division to the accreditation of a continuing
service.
Clause 194 provides that for services with no food or personal care
service, immediately before the commencement of this part, the due date
for making application for level 1 accreditation is 4 years after the
commencement of this part.
Clause 195 applies this section to services which immediately before the
commencement of the part, provided a food service but not a personal care
service.
Subclause (2) provides that for section 35, the due day for applying for
the level 1 accreditation is 3 years after the commencement of this part.
Subclause (3) specifies that for section 36, the due day for applying for
level 2 accreditation is 3 years after the commencement of this part.
Clause 196 applies this section to services which immediately before the
commencement of the part, provided a personal care service but not a food
service.
Subclause (2) provides that for section 35, the due day for applying for
the level 1 accreditation is 2 years after the commencement of this part.
Subclause (3) specifies that for section 38, the due day for applying for
level 3 accreditation is 2 years after the commencement of this part.
Clause 197 applies this section to services which immediately before the
commencement of the part, provided a personal care service and a food
service.
Subclause (2) provides that for section 35, the due day for applying for
the level 1 accreditation is 2 years after the commencement of this part.
Subclause (3) specifies that for section 36, the due day for applying for
level 2 accreditation is 2 years after the commencement of this part.
Subclause (4) specifies that for section 38, the due day for applying for
level 3 accreditation is 2 years after the commencement of this part.
Clause 198 ensures that minimum safety standards are met in all
premises used for residential services by requiring all applications for level
1 accreditation of a continuing service to be accompanied by a current
building compliance notice from the local government and the prescribed
fire safety document.
54
Residential Services (Accreditation) Bill 2002
SCHEDULE 1
The schedule sets out the reviewable decisions under the Act and the
persons who are interested persons for the purposes of the Act. Interested
persons are given rights to apply for review of decisions and to appeal.
SCHEDULE 2
The schedule provides the dictionary for the Act.
� State of Queensland 2002