An Act to provide for Assistance by the Commonwealth towards the provision of Care for Aged Persons or Disabled Persons, and for other purposes
Part I—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Aged or Disabled Persons Care Act 1954.
2 Interpretation
(1) In this Act, unless the contrary intention appears:
aged person means a person who has attained the age of 60 years.
approved, in relation to a hostel, has the meaning given in subsection (1AA) of this section.
approved operator means an organisation in relation to which an approval under section 10AB was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force.
approved provider means an organisation in relation to which an approval under section 10GC was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force.
building includes a part of a building and an addition to a building.
capital works costs, in relation to a hostel, include, but are not limited to, the following costs:
(a) the cost of acquiring the land on which the hostel premises are, or are to be, built;
(b) the cost of acquiring, erecting, altering or extending the hostel premises;
(c) the cost of acquiring furniture, fittings or equipment for, or altering or installing furniture, fittings, or equipment on, the hostel premises;
but, if those hostel premises are, or will be, part of larger premises, another part of which is not, or will not be, a hostel, do not include any costs that the Minister considers are attributable to the other part of the larger premises.
capital works costs, in relation to a nursing home, include, but are not limited to, the following costs:
(a) the cost of acquiring the land on which the nursing home premises are, or are to be, built;
(b) the cost of acquiring, erecting, altering or extending the nursing home premises;
(c) the cost of acquiring furniture, fittings or equipment for, or altering or installing furniture, fittings or equipment on, the nursing home premises;
but, if those nursing home premises are, or will be, part of larger premises, another part of which is not, or will not be, nursing home premises, do not include any costs that the Minister considers are attributable to the other part of the larger premises.
care service standards means the standards set out in the General Conditions as standards to be met in the provision of hostel care services and personal care services.
care services means hostel care services and personal care services.
community aged care services means care services that:
(a) are provided to maintain a person in his or her own home; and
(b) are of a kind in relation to which an approval under section 10GA is in force.
Community Aged Care Services General Conditions means the conditions formulated under section 10GI.
community aged care services package means the combination of community aged care services that are to be provided to an eligible person by an organisation.
disabled person means a person who has attained the age of 16 years and who is:
(a) permanently blind; or
(b) permanently incapacitated for work.
eligible person means:
(a) an aged or disabled person who is assessed as requiring:
(i) hostel care services; or
(ii) hostel care services and personal care services;
(b) a person who was residing with a person referred to in paragraph (a) prior to the time at which that last‑mentioned person commenced to receive such services otherwise than on a temporary basis and who intends to continue to reside with that person after that time; and
(c) an aged or disabled person:
(i) who wishes to avail himself or herself, on a temporary basis, of hostel care services; or
(ii) who wishes to avail himself or herself, on a temporary basis, of hostel care services and personal care services and who is assessed as requiring such services; and
(d) an aged or disabled person who:
(i) is assessed as requiring community aged care services; and
(ii) is not living in:
(A) a hostel; or
(B) a hospital; or
(C) a nursing home within the meaning of the National Health Act 1953; or
(D) an institution carried on exclusively or primarily for the treatment of mentally ill or mentally defective persons, being an institution conducted by, or in receipt of a grant for maintenance from, a State.
financially disadvantaged person, except in section 9, means a person who, in accordance with the manner of identification provided for in the General Conditions has been identified as financially disadvantaged.
General Conditions means the General Conditions formulated under section 10F that were in force immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act).
government authority means an authority established by or under a law of the Commonwealth, a State or a Territory, but does not include a local governing body.
hostel means premises:
(a) that are fitted, furnished and equipped for the purpose of providing:
(i) relevant care services for persons who, by reason of age or disability, have a need for such services; and
(ii) accommodation for persons who reside with the first‑mentioned persons; and
(b) in which such persons are accommodated exclusively for the purpose of receiving such services or accommodation, as the case may be;
but does not include:
(c) a hospital;
(d) a nursing home within the meaning of the National Health Act 1953;
(e) an institution carried on exclusively or primarily for the treatment of mentally ill or mentally defective persons, being an institution conducted by, or in receipt of a grant for maintenance from, a State.
hostel care services means accommodation services of a kind in relation to which an approval under subsection 10A(1) was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force.
hostel place means a place in a hostel that is maintained by an organisation for one eligible person, whether separately or in company with another eligible person or other eligible persons, for the purpose of providing hostel care services and personal care services to that first‑mentioned person.
local governing body means a local governing body established by or under a law of a State or Territory.
Orders means the Orders made by the Minister under section 10FH.
organisation means a person or a group of individuals.
personal care services means daily personal care services of a kind in relation to which an approval under subsection 10A(2) was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force.
relevant period means:
(a) for the purposes of Parts II and III, the period of 12 months beginning on 1 July 1989 or on 1 July of any subsequent year; and
(b) for the purposes of Part IIIA:
(i) the period of 6 months beginning on 1 January 1992; or
(ii) the period of 12 months beginning on 1 July 1992 or on 1 July of any subsequent year.
respite care place means a hostel place of a kind that is maintained for one eligible person, whether separately or in company with another eligible person or other eligible persons, for the purpose of providing care services to that first‑mentioned person.
Secretary means the Secretary of the Department.
(1AA) A reference in this Act to a hostel being approved is a reference to an approval having been in force, or having been deemed to be in force, under section 10B, in respect of the hostel, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act).
(1A) A reference in this Act to an approved hostel place or to an approved respite care place shall be taken to be a reference to a hostel place or a respite care place, as the case requires, that is included within the number of hostel places or respite care places that are specified in an agreement under section 10FA, being an agreement that was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force, as places in respect of which financial assistance by way of recurrent subsidy may, in accordance with Division 4 and that agreement, be payable.
(1B) A reference in this Act to capital works costs associated with the acquisition or erection, the demolition and reconstruction, or the alteration or extension, of a hostel shall not be taken to exclude any capital works costs referred to in any paragraph of the definition of capital works costs, in relation to a hostel, that are reasonably incurred in connection with that acquisition or erection, that demolition or reconstruction, or that alteration or extension, as the case requires.
(2) A reference in this Act to the Government of a State shall be read as including a reference to the Government of the Northern Territory.
(3) Each of the following is an eligible organisation:
(a) an organisation that is carried on otherwise than for the purpose of profit or gain to its individual members and is:
(i) a religious organisation;
(ii) an organisation the principal objects or purposes of which are charitable or benevolent;
(iii) an organisation of former members of the Defence Force established in every State;
(iv) a State branch of an organisation referred to in subparagraph (iii); or
(v) an organisation approved by the Minister for the purposes of this Act;
(b) a local governing body;
(c) the trustee or trustees under a trust established by an organisation referred to in paragraph (a) or by a local governing body;
(d) a corporation established by an organisation referred to in paragraph (a) or by a local governing body;
(e) the trustee or trustees under a trust established for charitable purposes and approved by the Minister for the purposes of this Act.
(4) Subsection (3) does not apply to an organisation to which subsection (5) applies.
(5) An organisation to which this subsection applies is an eligible organisation in relation to a particular building or particular buildings, or a part of a particular building, if the Minister has, in writing, declared the organisation to be an eligible organisation in relation to the building or buildings, or part, as the case may be.
(6) Subsection (5) applies to an organisation that:
(a) is conducted or controlled by, or by persons appointed by, the Government of the Commonwealth or of a State; or
(b) conducts, or has at any time conducted, a public hospital.
3 Purpose
(1) The purposes of this Act are to encourage and assist:
(a) the provision of suitable homes for eligible persons, being homes at which eligible persons may reside in conditions approaching as nearly as practicable normal domestic life; and
(b) the provision of accommodation at which care services may be provided for eligible persons; and
(c) the provision of community aged care services to eligible persons.
(2) The Minister and the Secretary shall, in exercising powers under this Act, have regard to the purposes of this Act.
5 Delegation
(1A) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to the Secretary, to an officer of the Department or to a person performing the duties of an office in the Department all or any of the powers of the Minister under this Act, other than this power of delegation.
(1) The Secretary may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Secretary, delegate to an officer of the Department or to a person performing the duties of an office in the Department all or any of the powers of the Secretary under this Act, other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister, or the Secretary, as the case requires.
(3) A delegation under this section does not prevent the exercise of a power by the Minister, or the Secretary, as the case requires.
5A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part II—Capital grants for nursing homes
7 Grants to eligible organisations
(1) Where the Minister grants a certificate under section 39A or 39B of the National Health Act 1953 to an eligible organisation that has also made application to the Minister under section 6 of this Act, the Minister may, in his or her discretion, on behalf of the Commonwealth, make a payment of financial assistance to that organisation by way of a grant towards the capital works costs in respect of the nursing home that is the subject of the certificate.
(2) A grant under this section shall be made at such time as is, or by such instalments and at such times as are, determined by agreement between the Minister and the eligible organization or, in the absence of agreement, by the Minister.
(3) A payment under this section shall not be made except to:
(a) a body corporate in which;
(b) trustees in whom; or
(c) any other organisation declared by the Minister under subsection 2(5) in which;
the nursing home is, or is to be, vested.
8 Terms and conditions of grant
(1) A grant to an eligible organization under section 7 may be made upon such conditions, not inconsistent with this Act, as the Minister thinks fit.
(2) Where the Minister makes a payment of financial assistance to an organisation by way of grant under subsection 7(1), the financial assistance is not payable to the organisation unless the organisation has entered into an agreement with the Minister that specifies the conditions on which the financial assistance is granted and under which the organisation agrees to comply with those conditions.
(2A) Where:
(a) an organisation has entered into an agreement specifying the conditions on which financial assistance under subsection 7(1) was granted; and
(b) the Minister, with the consent of the organisation, varies those conditions;
the agreement shall be taken to be varied accordingly.
(3) The conditions upon which a grant may be made under subsection (1) include, but are not limited to, conditions with respect to:
(a) the repayment of financial assistance;
(b) the giving of security for the repayment of financial assistance or the payment to the Commonwealth of amounts (whether or not exceeding the amount of financial assistance) that under the conditions are to be taken as representing the Commonwealth’s interest in:
(i) land acquired (with or without buildings);
(ii) buildings acquired, erected, altered or extended; and
(iii) equipment acquired, altered or extended;
as a result of the application of the financial assistance or of the financial assistance and other money; and
(c) the use and disposal of, and the recovery of amounts (whether or not exceeding the amount of financial assistance) that under the conditions are to be taken as representing the Commonwealth’s interest in:
(i) land acquired (with or without buildings);
(ii) buildings acquired, erected, altered or extended; and
(iii) equipment acquired, altered or installed;
as a result of the application of the financial assistance or of the financial assistance and other money.
(4) If:
(a) immediately before the commencement day, a grant of financial assistance in respect of a nursing home was payable under section 7; and
(b) on or after the commencement day, the residential care service that corresponds to the nursing home is granted extra service status under Division 32 of the Aged Care Act 1997;
the financial assistance ceases to be payable.
(5) If:
(a) immediately before the commencement day, a grant of financial assistance in respect of a nursing home was payable under section 7; and
(b) on or after the commencement day, a distinct part of the residential care service that corresponds to the nursing home is granted extra service status under Division 32 of the Aged Care Act 1997; and
(c) when the distinct part was granted extra service status, some or all of the financial assistance (the remaining amount) had not been paid;
the remaining amount is to be reduced in accordance with subsection (6).
(6) The remaining amount is to be reduced by an amount worked out using the formula:
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Note: Example: Assume the amount of the grant is $500,000, and the remaining amount is $200,000. Assume the distinct part of the residential care service that is granted extra service status contains 20 places, and the total number of places in the service is 40. The remaining amount is to be reduced by:
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(7) In this section:
commencement day means the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.
distinct part has the same meaning as in the Aged Care Act 1997.
residential care service has the same meaning as in the Aged Care Act 1997.
9 Amount of grant
(1) Subject to this section, the amount of a grant under section 7 in respect of a nursing home shall be an amount not exceeding:
(a) in a case to which paragraph (b) does not apply—80% of the capital works costs in respect of the home or 4 times the amount of the funds of the eligible organisation available for expenditure toward the capital works costs in respect of the home, whichever is the less; or
(b) in a case where the Secretary certifies, in writing, that the Secretary is satisfied that the nursing home is intended to be used exclusively or almost exclusively for the accommodation of financially disadvantaged persons—the capital works costs in respect of the home.
(1A) Subject to subsection (1B), the amount of the funds of an eligible organization available for expenditure towards the capital works costs in respect of a nursing home shall be deemed to be the sum of such part (if any) of the notional amount to be taken into account under subsection (1B) as the Minister, in his or her discretion, determines, the moneys (if any) expended, and the moneys presently available for expenditure, by the organization toward the capital works costs in respect of the home.
(1B) The notional amount to be taken into account in a calculation under subsection (1A) is the market value, at the time at which the calculation is made, of the eligible organisation’s estate or interest in the land to be used in connection with an application under section 6 or the market value of the organisation’s estate or interest in the land immediately after acquisition, whichever is the greater.
(1C) The Minister may, in his or her discretion, determine in writing that all land or particular land donated to the eligible organisation:
(a) by the Commonwealth; or
(b) by an authority established by or under a law of the Commonwealth;
shall not be taken into account for the purposes of subsection (1B).
(1D) Moneys expended in acquiring land taken into account for the purposes of subsection (1B) shall not be taken into account, for the purposes of subsection (1A), as moneys expended.
(2) The Minister shall not make, or agree to make, a grant under section 7 to an eligible organization in respect of a nursing home unless the Minister is satisfied that the sum of the moneys (if any) expended, and the moneys presently available for expenditure, by the organization towards the capital works costs in respect of the home, together with the amount of the grant, will be not less than the capital works costs in respect of the home.
(3) The Minister may determine, in writing, that a class of persons specified in the determination is a class of financially disadvantaged persons for the purposes of this section.
(4) In this section, financially disadvantaged person means an aged or disabled person included in a class of persons determined by the Minister, under subsection (3), to be a class of financially disadvantaged persons.
Part III—Capital grants and recurrent subsidies for approved hostels
Division 3—Capital grants for eligible organisations in respect of hostels
9A Capital grants to eligible organisations
(1) Subject to subsection (2), the Minister may, upon application in writing by an eligible organisation, by instrument in writing, approve the payment to the organisation of financial assistance by way of a grant towards capital works costs in respect of a hostel operated or proposed to be operated by that organisation.
(2) Where the Minister approves the payment of financial assistance to an eligible organisation under subsection (1), the Minister shall, in the instrument of approval:
(a) specify the amount of the financial assistance as determined in accordance with guidelines formulated under section 9B;
(b) specify the time or times at which, and the instalments (if any) in which, the financial assistance is to be paid; and
(c) specify the conditions on which the financial assistance is granted.
(3) The conditions that may be specified for the purpose of paragraph (2)(c) include, but are not limited to, conditions with respect to:
(a) the amounts to be applied by the eligible organisation towards the capital works costs in respect of the hostel;
(b) the furnishing of information;
(c) the class or classes of persons to be accommodated at the hostel;
(d) compliance by the eligible organisation with conditions to which a grant of financial assistance under Division 4 is subject;
(e) the provision of certificates with respect to the fulfilment of conditions;
(f) the repayment of financial assistance;
(g) the giving of security for the repayment of financial assistance or the payment to the Commonwealth of amounts (whether or not exceeding the amount of financial assistance) that under the terms and conditions are to be taken as representing the Commonwealth’s interest in:
(i) land acquired (with or without buildings);
(ii) buildings acquired, erected, altered or extended; and
(iii) equipment acquired, altered or installed;
as a result of the application of the financial assistance or of the financial assistance and other money; and
(h) the use and disposal of, and the recovery of amounts (whether or not exceeding the amount of financial assistance) that under the conditions are to be taken as representing the Commonwealth’s interest in:
(i) land acquired (with or without buildings);
(ii) buildings acquired, erected, altered or extended; and
(iii) equipment acquired, altered or installed;
as a result of the application of the financial assistance or of the financial assistance and other money.
(4) In an instrument of approval, the Minister may comply with paragraph (2)(a) by specifying a method of calculating the amount of the financial assistance.
(5) A payment under this section shall not be made except to:
(a) a corporation in which;
(b) trustees in whom; or
(c) any other organisation declared by the Minister under subsection 2(5) in which;
the hostel is, or is to be, vested.
(6) If:
(a) immediately before the commencement day, a grant of financial assistance in respect of a hostel was payable in accordance with an approval under subsection (1); and
(b) on or after the commencement day, the residential care service that corresponds to the hostel is granted extra service status under Division 32 of the Aged Care Act 1997;
the financial assistance ceases to be payable.
(7) If:
(a) immediately before the commencement day, a grant of financial assistance in respect of a hostel was payable in accordance with an approval under subsection (1); and
(b) on or after the commencement day, a distinct part of the residential care service that corresponds to the hostel is granted extra service status under Division 32 of the Aged Care Act 1997; and
(c) when the distinct part was granted extra service status, some or all of the financial assistance (the remaining amount) had not been paid;
the remaining amount is to be reduced in accordance with subsection (8).
(8) The remaining amount is to be reduced by an amount worked out using the formula:
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Note: Example: Assume the amount of the grant is $500,000, and the remaining amount is $200,000. Assume the distinct part of the residential care service that is granted extra service status contains 20 places, and the total number of places in the service is 40. The remaining amount is to be reduced by:
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(9) In this section:
commencement day means the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.
distinct part has the same meaning as in the Aged Care Act 1997.
residential care service has the same meaning as in the Aged Care Act 1997.
9B Guidelines for capital grants
(1) The Minister shall, by written instrument, formulate guidelines for the determination of the amounts of grants of financial assistance under section 9A towards the capital works costs in respect of hostels.
(2) Guidelines formulated under subsection (1) may provide for the following matters to be taken into account in the determination of the amount of a grant towards the capital works costs in respect of a hostel:
(a) the class or classes of persons to be accommodated at the hostel;
(b) the capacity of an organisation or proposed residents to contribute to those capital works costs;
(c) the capacity of an organisation to borrow money to be applied towards those capital works costs;
(d) the geographical location of the hostel;
(e) the cost of acquiring and developing land;
(f) specified limits on the amounts of grants;
(g) any other matters the Minister considers relevant.
(3) The Minister shall not, under section 9A, approve the payment of financial assistance by way of a grant to an eligible organisation in respect of a hostel unless the Minister is satisfied that the sum of the money (if any) expended, and the money presently available for expenditure, by the organisation towards the capital works costs in respect of the hostel, together with the amount of the grant, will not be less than the capital works costs in respect of the hostel.
9C Agreements with respect to conditions of grants
(1) Where the Minister approves a grant of financial assistance to an organisation under section 9A, the financial assistance is not payable to the organisation unless the organisation has entered into an agreement with the Minister that specifies the conditions on which the financial assistance is granted and under which the organisation agrees to comply with those conditions.
(2) Where:
(a) an organisation has entered into an agreement specifying the conditions on which financial assistance under section 9A was granted; and
(b) the Minister, with the consent of the organisation, varies those conditions;
the agreement shall be taken to be varied accordingly.
Division 4—Recurrent subsidies for organisations in respect of approved hostels
10C Authority to provide financial assistance
(1) If an approved hostel was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), approved for financial assistance by way of recurrent subsidy, that approval shall be taken to constitute authority, subject to:
(a) this Division;
(b) the General Conditions; and
(c) the terms of an agreement entered into under section 10FA;
to pay financial assistance to the organisation operating the hostel, at rates determined in accordance with section 10D, in respect of the provision, by the organisation, in the hostel places and, where appropriate, in the respite care places, referred to in the agreement entered into under section 10FA, of hostel care services and personal care services being an agreement that was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force.
(3) Financial assistance shall not be paid under this Division in respect of the provision of services at premises that are a nursing home within the meaning of the National Health Act 1953.
10D Payments of financial assistance
(1) The amount of financial assistance payable to an organisation under this Division in respect of an approved hostel is as set out in the following subsections.
(2) In respect of each hostel place (other than a respite care place) that is occupied by an existing resident:
(a) who is assessed as being financially disadvantaged; and
(b) who is assessed as requiring hostel care services only; and
(c) for whom the organisation makes hostel care services available;
the financial assistance payable is an amount calculated at the rate of $2.10 per day or such higher rate as is determined by the Minister by written instrument.
(3) In respect of each hostel place (other than a respite care place) that is occupied by a new resident to whom paragraphs (2)(a), (b) and (c) apply, the financial assistance payable is an amount calculated at such rate as the Minister determines by written instrument.
(4) In respect of each hostel place (other than a respite care place) that is occupied by an existing resident:
(a) who is assessed as requiring hostel care services and personal care services; and
(b) for whom those services are made available by the organisation;
the financial assistance payable is an amount calculated at such rate determined by the Minister under subsection (9) as is applicable to that place because of the resident’s classification.
(5) In respect of each hostel place (other than a respite care place) that is occupied by a new resident:
(a) who is not a financially disadvantaged person; and
(b) who is assessed as requiring hostel care services and personal care services; and
(c) for whom those services are made available by the organisation;
the financial assistance payable is an amount calculated at such rate determined by the Minister under subsection (9) as is applicable to that place because of the resident’s classification.
(6) In respect of each hostel place (other than a respite care place) that is occupied by a new resident:
(a) who is a financially disadvantaged person; and
(b) who is assessed as requiring hostel care services and personal care services; and
(c) for whom those services are made available by the organisation;
the financial assistance payable is an amount calculated at such rate determined by the Minister under subsection (9) as is applicable to that place because of the resident’s classification.
(7) In respect of each respite care place that is occupied by an eligible person for whom the organisation provides hostel care service, the financial assistance payable is an amount calculated at such rate as the Minister determines by written instrument.
(8) In respect of each respite care place that is occupied by an eligible person who is assessed as requiring, and for whom the organisation provides, hostel care services and personal care services, the financial assistance payable is an amount calculated at such rate as the Minister determines by written instrument.
(9) The Minister must, for the purposes of subsections (4), (5) and (6), determine in writing a different rate for each subsection, taking into account the different classifications of the eligible persons that may occupy the hostel place referred to in that subsection.
(10) Without limiting subsections (2) to (9), the Minister may determine a rate for the purposes of those subsections by determining a method of calculating the rate.
(11) Payments under this Division are to be made in the manner and at the times the Minister determines.
(12) An eligible person must not be taken into account under subsection (7) or (8) in respect of a day in a benefit period if the person has already been taken into account in relation to the same hostel in respect of 63 days in the same benefit period.
(13) If the Minister, by written instrument, determines that another number, whether higher or lower, be substituted for the number 63, subsection (12) has effect as if that other number were substituted.
(14) In this section, unless the contrary intention appears:
benefit period, in relation to an eligible person, is a period determined by the Minister, by written instrument, to be a benefit period for the purposes of subsection (12).
existing resident, in relation to an approved hostel, means an eligible person who:
(a) occupied a hostel place (other than a respite care place) in an approved hostel at some time during the period 6 January to 27 April 1993; and
(b) is occupying such a place in an approved hostel.
new resident, in relation to an approved hostel, means an eligible person who occupies a hostel place (other than a respite care place) in the hostel, and did not occupy such a place in an approved hostel during the period 6 January to 27 April 1993.
(15) For the purposes of the definitions of existing resident and new resident, a person occupies a hostel place in an approved hostel (other than a respite care place) if the person resides permanently in the hostel.
(16) Financial assistance is not payable in respect of a day that occurs on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.
10DAA Payments of financial assistance if a declaration under section 10FI is in force
(1) If the Minister has made a declaration in respect of a hostel under section 10FI, the Minister may, by written notice served on the proprietor, determine that the following rules apply in respect of the payment of financial assistance under section 10D, in respect of the hostel for the period that the declaration operates:
(a) as long as the person who occupied an approved hostel place or an approved respite care place in the hostel on the day the Minister made the declaration continues to occupy that place, the amount of financial assistance and the circumstances in which it becomes payable to the organisation in respect of the place, is as provided for in section 10D;
(b) in either of the following circumstances, the place is taken to be unoccupied for the purposes of section 10D:
(i) in the case where the person is occupying an approved hostel care place—if the person ceases to permanently reside in the hostel;
(ii) in the case where the person is occupying an approved respite care place—if the person leaves the hostel (other than as part of the respite care stay in the hostel) or begins residing in the hostel permanently.
(2) The place is taken to be unoccupied for the purposes of section 10D:
(a) in the case of subparagraph (1)(b)(i)—from the day after the person ceases to reside permanently in the hostel; and
(b) in the case of subparagraph (1)(b)(ii)—from either the day after the person leaves the hostel or the day the person begins residing permanently in the hostel, as the case may be.
(3) Subsection (1) cannot operate so as to make financial assistance payable to an organisation if, apart from this section and section 10D, that financial assistance would not otherwise be payable.
10FB Statements may be published in relation to certain hostels
(1) The Minister may, from time to time, prepare and publish a statement containing all or any of the relevant information in relation to each hostel approved by the Minister under section 10B.
(2) The following is relevant information for the purposes of subsection (1):
(a) information relating to whether the standards to be met by the organisation operating the hostel in the provision of services, being standards contained in the General Conditions in force from time to time, have been satisfied in the hostel;
(b) the level of services provided in the hostel by reference to these standards;
(c) the number of hostel places in the hostel and the physical size of the hostel;
(d) the location of the hostel and its proximity to community facilities, for example, public transport, shops, libraries and community centres;
(e) services provided in the hostel;
(f) fees imposed, and charges made, by the organisation operating the hostel;
(g) activities at the hostel in which residents may participate;
(h) the name of the organisation operating the hostel.
(3) Without limiting the means by which a statement may be published, a copy of the statement is to be made available for public inspection at each office of the Department.
(4) The information contained in a statement must not be such as to enable the identification of an individual resident of a hostel.
(5) Before publishing a statement under this section, the Minister must allow the organisation operating the hostel not less than 30 days to consider the statement and to make submissions to the Minister in relation to the content of the statement.
(6) Where it appears to the Minister in the light of any submission made by the organisation that the content of the statement should be altered, the Minister is to alter the statement accordingly before it is published.
(7) The Minister must not publish a statement that contains information that relates to a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.
10FC Automatic revocation of approval of certain hostels
(1) This section applies in spite of any other provision of this Act.
(2) In this section:
Commonwealth/State Disability Agreement means the Commonwealth/State Disability Agreement made on 30 July 1991 between the Commonwealth on the one part and the States and Territories on the other part.
scheduled hostel means a hostel whose name and address is specified in column 2 of an item in Schedule 2, being the hostel to which the notice of approval issued by the Minister under subsection 10B(2) and bearing the approval number specified in column 4 of that item relates.
(3) The approval of a scheduled hostel (unless sooner revoked) is, by force of this subsection, revoked immediately before the day on which the provisions (other than subclauses 1(1) and (2)) of the Commonwealth/State Disability Agreement come into force in respect of the State in which the scheduled hostel is situated.
Division 5—Hostel Standards Review Panels
10FD Establishment
The Minister may establish a Hostel Standards Review Panel for each State, the Australian Capital Territory and the Northern Territory.
10FE Functions
(1) The functions of a Hostel Standards Review Panel for a State or Territory are:
(a) to review and to report, in writing, to the Minister on the operation of an approved hostel in relation to which the Minister proposes to make a declaration under section 10FI; and
(b) to undertake such other functions as the Minister directs.
(2) The Panel is to perform its functions:
(a) at the Minister’s direction; or
(b) at the written request of an approved operator of an approved hostel in relation to which the Minister proposes to make a declaration under section 10FI.
(3) In conducting the review, the Panel is to consider whether the care service standards are being met in respect of the provision of care services.
(4) The Panel’s report is to include its findings and the reasons for those findings.
(5) In making a report referred to in paragraph (1)(a), the Panel must recommend, on the basis of its findings and the reasons for those findings:
(a) whether the Minister should make a declaration under section 10FI in respect of the approved hostel; and
(b) whether the Minister should make a determination under section 10DAA and for how long the determination should remain in force; and
(c) whether the Panel’s report should be released to the approved operator, the hostel staff and the hostel residents.
(6) A reference in this section to a Territory is a reference to the Australian Capital Territory or the Northern Territory.
10FF Powers
Subject to this Part, a Hostel Standards Review Panel has power to do all things necessary or convenient to be done in connection with the performance of its functions.
10FG Performance of a Hostel Standards Review Panel’s functions
In performing its functions, a Hostel Standards Review Panel:
(a) must act with as little formality as possible; and
(b) must act as quickly as is appropriate given the requirements of this Part and the need to properly consider a matter before it; and
(c) is not bound by the rules of evidence; and
(d) may inform itself on anything relevant to the matter before it in any way it thinks fit; and
(e) may receive information or submissions orally or by written statements; and
(f) may, in respect of a matter before it, consult such persons as it thinks fit.
10FH Minister may make Orders
The Minister may make Orders providing for the following matters:
(a) the notice requirements to be complied with before the Minister makes a declaration under section 10FI;
(b) the procedures to be followed before a Hostel Standards Review Panel conducts a review under section 10FE;
(c) the procedures to be followed by the Panel in conducting the review;
(d) the appointment, terms and conditions of appointment, resignation and termination of appointment of Panel members;
(e) the duties associated with holding office as a Panel member;
(f) any other matter relating to the establishment or the operation of a Panel in relation to which it is necessary or convenient to make an Order under this section.
Division 6—Failure to meet care service standards in the provision of care services
10FI Declaration of failure to meet standards
(1) If:
(a) an approved operator is receiving a grant of financial assistance under this Part in respect of the provision of care services in a hostel; and
(b) the operator is not meeting the care service standards in respect of the provision of the services as required by the General Conditions;
the Minister may make a declaration stating that the operator is not meeting the standards in respect of the provision of the services in the hostel and, consequently, is in breach of the General Conditions.
(2) The declaration must specify the hostel in respect of which the operator is not meeting the care service standards in the provision of care services.
(3) The Minister must provide a copy of the declaration to the operator concerned.
(4) A declaration operates from the day the Minister makes it and remains in force until the day the Minister revokes it.
(5) If the Minister is satisfied that the operator is not meeting the standards in respect of the provision of care services in the hostel, the Minister may take such action as he or she thinks fit under section 10FAA in respect of the hostel whether or not the Minister proposes to, or has taken, action under this section.
10FJ Certain matters to occur before Minister makes a declaration
(1) The Minister must not make a declaration under section 10FI in relation to a hostel unless:
(a) a Hostel Standards Review Panel has been established for the State or Territory in which the hostel is situated; and
(b) any requirements of the Orders have been complied with; and
(c) if the approved operator of the hostel has applied, under the Orders, to the Panel for a review under section 10FE of the performance of the hostel—the Minister has considered the Panel’s report on the hostel’s performance.
(2) In this section, a reference to Territory is a reference to the Australian Capital Territory or the Northern Territory.
10FK Information about Minister’s declaration may be made available to the public
If the Minister has made a declaration under section 10FI in respect of a hostel, the Minister may make public, in any way the Minister thinks fit, any or all of the following information:
(a) the name and address of the hostel (declared hostel) the subject of the declaration;
(b) the name and address of any other hostel that the operator of the declared hostel operates;
(c) the operator’s business name and address;
(d) details of the operator’s failure to meet the care service standards in respect of the provision of care services in the declared hostel;
(e) the actions taken by the Minister because of the operator’s failure to meet the standards.
Part IIIA—Community aged care services
Division 1—Preliminary
10GA Minister may approve community aged care services
The Minister may by notice published in the Gazette approve particular kinds of care services as community aged care services for the purposes of this Act.
Division 2—Financial assistance
10GH Financial assistance
(1) Financial assistance is payable in accordance with this section to an organisation if:
(a) an approval of a grant of financial assistance to the organisation under section 10GF was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force; and
(b) an agreement under section 10GG between the Minister and the organisation was in force immediately before that commencement.
(2) Financial assistance is payable, at the rate determined by the Minister by written instrument, for the community aged care services packages made available in accordance with the agreement by the organisation to eligible persons assessed as requiring community aged care services.
(3) The Minister may determine a rate by determining a method of calculating the rate.
(4) Payments of financial assistance must be made in the manner and at the times determined by the Minister.
(5) Financial assistance is not payable in respect of a day that occurs on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.
Part IV—Miscellaneous
10H Review of decisions
(1) In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
Tribunal means the Administrative Appeals Tribunal.
(2) An organisation affected by a decision of the Minister:
(a) under section 10AB refusing to approve the organisation as an approved operator of hostels; or
(b) under section 10AC revoking the approval of the organisation as an approved operator of hostels; or
(c) under subsection 10FAA(2) revoking or suspending the approval of a hostel or varying an agreement entered into under section 10FA in respect of a hostel; or
(d) under section 10GC refusing to approve the organisation as an approved provider of community aged care services; or
(e) under section 10GD revoking the approval of the organisation as an approved provider of community aged care services; or
(f) under section 10GK revoking the approval of a grant of financial assistance to the organisation; or
(g) under section 10GM, varying an agreement entered into under section 10GG;
may apply, in writing, to the Minister for a reconsideration of that decision by the Minister.
(3) The application must be made within 28 days after the organisation receives notice of the decision.
(4) If the organisation applies for reconsideration of the decision, the Minister may affirm or revoke the decision or vary it as he or she thinks fit.
(5) An application may be made to the Tribunal for review of a decision of the Minister under subsection (4).
(6) Within 28 days after the Minister makes a decision of a kind referred to in subsection (4), the Minister must cause the following material to be given to the organisation:
(a) a copy of the decision;
(b) a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision;
(c) a statement that, except where subsection 28(4) of that Act applies, the organisation may request a statement under section 28 of that Act.
(7) Failure to comply with subsection (6) does not affect the validity of the Minister’s decision.
(8) Without prejudice to the effect of the repeal of section 10AB, 10AC, 10FAA, 10GC, 10GD, 10GK or 10GM on a decision of the Minister of a kind referred to in subsection (1) of this section, that repeal does not affect:
(a) a reconsideration of that decision under this section; or
(b) any review by the Administrative Appeals Tribunal following an application under subsection (7) of this section.
10J Agreements may be entered into with transferees of building etc.
(1) Where:
(a) either of the following subparagraphs applies:
(i) financial assistance to an organisation by way of a grant towards the capital works costs in respect of a hostel has been made or approved under this Act on conditions with respect to the use or disposal of any land, building or equipment;
(ii) an organisation has entered into an agreement under this subsection under which the organisation is required to comply with conditions with respect to the use of disposal of any land, building or equipment; and
(b) the organisation has transferred, or proposes to transfer, the whole or a part of the organisation’s interest in the land, building or equipment to another organisation;
the Minister may enter into an agreement with the last‑mentioned organisation under which that organisation is required to comply, or will, upon the transfer being effected, be required to comply, with conditions, whether with respect to the use or disposal of the land, building or equipment or otherwise.
(2) Where an agreement under subsection (1) between the Minister and an organisation is in force, the Minister may vary the agreement with the agreement of the organisation.
10JA Statements that are false or misleading
(1) This section applies in relation to the following applications:
(a) an application under section 6 for financial assistance;
(b) an application under section 9AB for an approval in principle for financial assistance;
(c) an application under section 9AC to transfer an approval in principle;
(d) an application under section 9A for approval of the payment of financial assistance;
(e) an application under section 10AB for approval as an approved operator of hostels;
(f) an application under section 10B for approval of a hostel for financial assistance;
(g) an application under section 10GC for approval as an approved provider of community aged care services;
(h) an application under section 10GF for financial assistance;
(i) an application under section 10GN to transfer community aged care services packages.
10JB Submissions that are false or misleading
A person must not make a submission under section 10AC or 10GD that is false or misleading in a material particular.
Penalty: Imprisonment for 5 years.
10K Certain instruments are disallowable instruments
The following Instruments are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901:
(a) a determination under subsection 9(3);
(b) principles formulated under subsection 9AB(13);
(c) guidelines formulated under subsection 9B(1);
(d) principles formulated under subsection 10B(7);
(e) an instrument under subsection 10D(1), (5) or (6);
(f) General Conditions formulated under subsection 10F(1);
(fa) Orders made under section 10FH;
(g) principles formulated under section 10GF;
(h) an instrument under section 10GH;
(i) Community Aged Care Services General Conditions formulated under subsection 10GI(1).
11 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving affect to this Act.
Part Part IIIA - Aged or Disabled Persons Care Act 1954 - Community aged care services | Zoe