Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 After subsection 25 - 1(3)
Insert:
(3A) Without limiting paragraph ( 3)(c), the Classification Principles may require the Secretary to take into account (including as part of a method or procedure specified for the purposes of subsection ( 2)) specified matters relating to care provided, or to be provided, to the care recipient, including:
(a) the manner in which the care was, is or is to be provided; or
(b) the qualifications of any person involved in providing the care.
2 Validation of Classification Principles
(1) This item applies to a thing purportedly done under the Aged Care Act 1997 at any time before the commencement of this item, to the extent that the thing purportedly done would, apart from this item, be invalid because the Classifications Principles required the Secretary to take into account a matter relating to care provided, or to be provided, to a care recipient, including:
(a) the manner in which the care was, is or is to be provided; or
(b) the qualifications of any person involved in providing the care.
(2) The thing purportedly done is as valid and effective, and is taken always to have been as valid and effective, as it would have been had subsection 25 - 1(3A) of that Act, as amended by this Part, been in force.
(3) All persons are, by force of this subitem, declared to be, and always to have been, entitled to act on the basis that the thing purportedly done is valid and effective.
(4) This item does not affect rights or liabilities of parties to proceedings for which leave to appeal to the High Court of Australia has been given on or before the day this item commences, if the fact that the Classification Principles required the Secretary to take into account the matter is in issue in the proceedings.
(5) Subject to subitem ( 4), subitems ( 1), (2) and (3) have effect in relation to:
(a) proceedings (whether original or appellate) that begin on or after the commencement of this item; and
(b) proceedings (whether original or appellate) that began before that commencement, being proceedings that had not been finally determined as at that commencement.
(6) To avoid doubt, a reference in this item to the Classification Principles includes a reference to a provision of the Classification Principles applying, adopting or incorporating any matter contained in any other instrument or writing.
(7) This item does not apply to the extent (if any) to which its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).
3 Paragraph 25 - 4(1)(b)
Omit "29 - 1; and", substitute "29 - 1.".
4 Paragraph 25 - 4(1)(c)
Repeal the paragraph.
5 At the end of subsection 25 - 4(1)
Add:
Note: See also section 27 - 3 (reappraisal required by Secretary) and Division 29A (civil penalty for incorrect classifications).
6 Before subsection 27 - 3(1)
Insert:
False, misleading or inaccurate information
7 Paragraph 27 - 3(1)(b)
Omit "and".
8 Paragraph 27 - 3(1)(c)
Repeal the paragraph.
9 Application of amendments
The amendments of subsections 25 - 4(1) and 27 - 3(1) of the Aged Care Act 1997 made by this Part apply in relation to a change of classification mentioned in paragraph 25 - 4(1)(b) or 27 - 3(1)(b) that occurs on or after the commencement of this item, whether the appraisal or reappraisal mentioned in paragraph 25 - 4(1)(a) or 27 - 3(1)(a) occurred before, on or after that commencement.
10 At the end of subsection 27 - 3(1)
Add:
Note: See also section 25 - 4 (suspending approved providers from making appraisals and reappraisals) and Division 29A (civil penalty for incorrect classifications).
11 After subsection 27 - 3(3)
Insert:
Significant decrease in care needs
(3A) The Secretary may give an approved provider a written notice requiring a reappraisal to be made of the level of care needed by a care recipient if:
(a) the approved provider provides care to the care recipient; and
(b) the Secretary reasonably suspects that the care needs of the care recipient have decreased significantly since the last appraisal under section 25 - 3, or reappraisal under section 27 - 4, of the level of care needed by the care recipient.
(3B) The Classification Principles may specify the circumstances in which the care needs of a care recipient are taken to decrease significantly.
(3C) The notice must specify a period within which the reappraisal is to be made.
Varying or revoking notice
12 Subsection 27 - 3(4)
After " subsection ( 1)", insert "or (3A)".
13 Before subsection 27 - 3(5)
Insert:
Authorised reappraisers
14 At the end of subsection 27 - 3(5)
Add "or (3A)".
15 Section 29 - 2
Repeal the section, substitute:
29 - 2 Date of effect of change
A change of a classification under subsection 29 - 1(1) is taken to have had effect from the day on which the classification took effect.
16 Application of amendments
(1) The amendment of section 29 - 2 of the Aged Care Act 1997 made by this Part applies in relation to a change of classification if the Secretary gives written notice of the change to an approved provider under subsection 29 - 1(4) of that Act on or after the commencement of this item, whether the classification took effect before, on or after that commencement.
(2) Subitem ( 1) has no effect to the extent (if any) to which:
(a) its operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph); or
(b) it imposes taxation (within the meaning of section 55 of the Constitution).
17 At the end of Part 2.4
Add:
Division 29A -- Civil penalty for incorrect classifications
(1) The Secretary may notify an approved provider in writing if the Secretary:
(a) reasonably suspects that the approved provider, or a person acting on the approved provider's behalf, gave false or misleading information in an appraisal or reappraisal connected with a classification reviewed under subsection 29 - 1(3); and
(b) changes the classification under section 29 - 1.
Note: See also sections 25 - 4 (suspending approved providers from making appraisals and reappraisals) and 27 - 3 (reappraisal required by Secretary).
(2) The Secretary may also notify an approved provider in writing if:
(a) the approved provider makes 2 or more of any of the following:
(i) an appraisal under section 25 - 3;
(ii) a reappraisal under section 27 - 4; and
(b) the Secretary changes 2 or more classifications under section 29 - 1 because the Secretary is satisfied that the appraisals or reappraisals were incorrect or inaccurate; and
(c) the Secretary is satisfied that the changes, taken together, are significant (see section 29A - 3).
(3) A notice under this section must:
(a) specify the classification or classifications the Secretary changed; and
(b) include a statement that the Secretary suspects the matter mentioned in paragraph ( 1)(a), or is satisfied of the matter mentioned in paragraph ( 2)(c), and the Secretary's reasons for this; and
(c) include a statement of the effect of section 29A - 2.
(1) An approved provider is liable to a civil penalty if:
(a) the Secretary changes a classification under section 29 - 1; and
(b) the change occurs in the following circumstances:
(i) the change occurs within 2 years (the warning period ) after the Secretary gives a notice to the approved provider under subsection 29A - 1(1) or (2);
(ii) during the warning period, the approved provider, or a person acting on the approved provider's behalf, gives false or misleading information in an appraisal under section 25 - 3, or reappraisal under section 27 - 4, connected with the classification.
Civil penalty: 60 penalty units.
(2) An approved provider is liable to a civil penalty if:
(a) the Secretary changes a classification under section 29 - 1; and
(b) the change occurs in the following circumstances:
(i) the change occurs within 2 years (the warning period ) after the Secretary gives a notice to the approved provider under subsection 29A - 1(1) or (2);
(ii) during the warning period, the approved provider makes one or more appraisals under section 25 - 3 or reappraisals under section 27 - 4;
(iii) the Secretary changes the classification as mentioned in paragraph ( a) of this subsection because the Secretary is satisfied that any of the appraisals or reappraisals mentioned in subparagraph ( ii) of this paragraph was incorrect or inaccurate;
(iv) the Secretary changes one or more other classifications under section 29 - 1 during the warning period because the Secretary is satisfied that any of the appraisals or reappraisals mentioned in subsection ( ii) of this paragraph was incorrect or inaccurate;
(v) the changes mentioned in subparagraphs ( iii) and (iv), taken together, are significant (see section 29A - 3).
Civil penalty: 60 penalty units.
(3) To avoid doubt, the approved provider may be liable to a separate civil penalty under subsection ( 1) or (2) for each classification the Secretary changes under section 29 - 1 during the warning period.
29A - 3 When changes are significant
In determining, for the purposes of paragraph 29A - 1(2)(c) or subparagraph 29A - 2(2)(b)(v), whether changes, taken together, are significant, regard must be had to the following matters:
(a) the number of classifications changed, relative to the number of care recipients to whom the approved provider provides care;
(b) the significance of each change;
(c) the frequency of the incorrect or inaccurate appraisals and reappraisals that led to the changes;
(d) any other matters specified by the Classification Principles.
18 Before subsection 85 - 5(1)
Insert:
Request for reconsideration of reviewable decision
19 After subsection 85 - 5(4)
Insert:
(4A) The person's request must comply with section 85 - 6 (application fee) if the * reviewable decision was made under subsection 29 - 1(1) (a decision to change the classification of a care recipient).
Reconsideration of reviewable decision
20 After section 85 - 5
Insert:
85 - 6 Application fee for reconsideration of decision to change classification of care recipient
(1) A request made under subsection 85 - 5(1) for reconsideration of a * reviewable decision made under subsection 29 - 1(1) (a decision to change the classification of a care recipient) must be accompanied by the application fee (if any) specified in, or worked out in accordance with, the Classification Principles.
(2) The amount of the fee must not be such as to amount to taxation.
(3) The Classification Principles may deal with other matters in relation to the fee, including the following:
(a) the circumstances in which the Secretary may waive the fee;
(b) the circumstances in which an approved provider is exempt from paying the fee;
(c) the circumstances in which the fee may be refunded, in whole or in part.
21 Before Division 96
Insert:
Division 95C -- Civil penalties
95C - 1 Civil penalty provisions
Enforceable civil penalty provisions
(1) Each * civil penalty provision of this Act is enforceable under Part 4 of the * Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the * Regulatory Powers Act, the Secretary is an authorised applicant in relation to the * civil penalty provisions of this Act.
Relevant court
(3) For the purposes of Part 4 of the * Regulatory Powers Act, each of the following courts is a relevant court in relation to the * civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia;
(c) a court of a State or Territory that has jurisdiction in relation to the matter.
22 Section 96 - 1 (at the end of the cell at table item 9, column headed "Part or provision")
Add "and section 85 - 6".
23 Clause 1 of Schedule 1
Insert:
"civil penalty provision" has the same meaning as in the * Regulatory Powers Act.
"Regulatory Powers Act" means the Regulatory Powers (Standard Provisions) Act 2014 .
Part 2 -- Adviser and administrator panels
24 Paragraph 25 - 4A(1)(b)
Omit ", approved by the Secretary,".
25 Subsection 25 - 4A(2)
Repeal the subsection.
26 Subsection 25 - 4A(3)
Repeal the subsection, substitute:
(3) If the agreement requires the approved provider to appoint an adviser, the approved provider must appoint the adviser within the period specified in the agreement.
27 At the end of section 25 - 4A
Add:
(4) The Classification Principles may exclude a class of persons from being appointed as an adviser.
(5) The Classification Principles may specify matters that the Secretary must take into account in specifying, in the agreement, the period within which an approved provider that is required to appoint an adviser must appoint an adviser.
28 Paragraph 25 - 4B(1)(a)
Omit "subsection 25 - 4A(2) or (3)", substitute "subsection 25 - 4A(3)".
29 Subparagraphs 66 - 2(1)(a)(iii) and (iv)
Omit "approved by the Commonwealth".
30 Subsections 66 - 2(2) and (3)
After "Commonwealth", insert ", or a Commonwealth officer or employee,".
31 Division 66A (heading)
Repeal the heading, substitute:
Division 66A -- Appointing administrators and advisers
32 Sections 66A - 1, 66A - 2 and 66A - 3
Repeal the sections, substitute:
66A - 2 Appointment of advisers
(1) The Sanctions Principles may exclude a class of persons from being appointed as an adviser.
(2) A person is not eligible to be appointed as an adviser in accordance with this section if the person is within a class of persons that the Sanctions Principles exclude from being appointed as an adviser.
(3) If an approved provider has agreed to the appointment of an adviser in accordance with this section, the approved provider must appoint the adviser within the period specified in the agreement.
(4) The Sanctions Principles may specify matters that the Secretary must take into account in specifying a period mentioned in subsection ( 3).
66A - 3 Appointment of administrators
(1) The Sanctions Principles may exclude a class of persons from being appointed as an administrator.
(2) A person is not eligible to be appointed as an administrator in accordance with this section if the person is within a class of persons that the Sanctions Principles exclude from being appointed as an administrator.
(3) If an approved provider has agreed to the appointment of an administrator in accordance with this section, the approved provider must appoint the administrator within the period specified in the agreement.
(4) The Sanctions Principles may specify matters that the Secretary must take into account in specifying a period mentioned in subsection ( 3).
33 Application of amendments
(1) The amendments of sections 25 - 4A and 25 - 4B of the Aged Care Act 1997 made by this Part apply in relation to agreements entered into on or after the commencement of this item.
(2) The amendments of section 66 - 2 of the Aged Care Act 1997 made by this Part apply in relation to sanctions imposed on or after the commencement of this item.
Part 3 -- Approved provider obligations
34 Subsection 9 - 1(1)
Repeal the subsection, substitute:
(1) An approved provider must notify the Secretary of a change of circumstances that materially affects the approved provider's suitability to be a provider of * aged care (see section 8 - 3). The notification must occur within 28 days after the change occurs.
Note: Approved providers have a responsibility under Part 4.3 to comply with this obligation. Failure to comply with a responsibility can result in a sanction being imposed under Part 4.4.
35 Subsection 9 - 1(3)
Repeal the subsection.
36 Paragraph 9 - 1(3A)(a)
Omit "there is a change of any of an", substitute "a change of circumstances that materially affects the approved provider's suitability to be a provider of * aged care involves a change in any of the".
37 Subsections 9 - 1(6), (7) and (8)
Repeal the subsections.
38 Application of amendments
The amendments of section 9 - 1 of the Aged Care Act 1997 made by this Part do not apply in relation to a change of circumstances, or a change of key personnel, that occurred before the commencement of this item.