23DFGiving an acceptance of approved pathology authority undertaking

#### 23DF Giving an acceptance of approved pathology authority undertaking (1) Where: (a) an undertaking for the purposes of this section, in accordance with the appropriate approved form, is signed by or on behalf of a person (including a State, the Northern Territory or a public authority); and (b) the person gives the undertaking to the Minister together with an application for the Minister’s acceptance of the undertaking; the Minister may, subject to subsections (4), (5) and (6): (c) accept the undertaking on behalf of the Commonwealth and determine the period (being a period ending not later than 12 months after the day on which the undertaking comes into force) for which the undertaking is to have effect; or (d) refuse to accept the undertaking. (2) An application under subsection (1) shall: (a) be in writing; (b) be in accordance with the approved form; and (c) contain such particulars as are determined by the Minister under subsection (13) for the purposes of this subsection. (3) Without limiting the generality of subsection (2), a determination prescribing the particulars to be contained in an application for the purposes of that subsection may, in the case of an application by a body corporate, prescribe particulars of the directors, shareholders and officers of the body corporate. (4) The Minister shall not accept an undertaking given by a person for the purposes of this section if a determination by a Medicare Participation Review Committee of the kind referred to in subparagraph 124FC(1)(e)(v) is in force in respect of the person. (5) The Minister shall not accept an undertaking given by a person for the purposes of this section if the Minister is satisfied that: (a) if the undertaking were accepted, the person who gave the undertaking would be likely to carry on the whole or a part of the practice or business of a prescribed person; and (b) the acceptance of the undertaking would be likely to have the effect of allowing a person to avoid, in whole or in part, the financial consequences of the disqualification, or the likely disqualification, of that prescribed person. (6) The Minister shall not accept an undertaking given by a person for the purposes of this section unless the Minister is satisfied that the person is a fit and proper person to be an approved pathology authority. (7) In determining, for the purposes of subsection (6), whether a person is a fit and proper person to be an approved pathology authority, the Minister shall have regard to: (a) whether the person is a relevant person; (b) where a Medicare Participation Review Committee has made a determination in relation to the person under section 124F, 124FB, 124FC or 124FF—the terms of that determination; (c) where the Determining Authority has made a final determination under section 106TA in relation to the person—the terms of that final determination; (d) in a case where the person conducts, or intends to conduct, a business of rendering pathology services: (i) the persons who derive, or who can reasonably be expected to derive, whether directly or indirectly, financial benefit from the conduct of that business; and (ii) whether any of those persons is a relevant person; (e) whether the person is or has been: (i) associated with a relevant person; or (ii) in a position to control the operations of a body corporate that: (A) is, or has been, an approved pathology authority; and (B) is a relevant person; (f) in a case where the person is a body corporate—whether any officer of the body corporate, or any person who is in a position to control the body corporate, is or has been: (i) associated with a relevant person; or (ii) in a position to control the operations of a body corporate that: (A) is, or has been, an approved pathology authority; and (B) is a relevant person; (g) such matters as are prescribed for the purposes of this paragraph; and (h) such other matters as the Minister considers relevant. (8) Where a person gives an undertaking under subsection (1), the Minister may, by notice in writing given to the person, require the person to give the Minister, within such period (being a period ending not earlier than 28 days after the day on which the notice is given) as is specified in the notice, such information in relation to the undertaking, or the application that accompanied the undertaking, as is specified in the notice. (9) Without limiting the generality of subsection (1), where: (a) the Minister gives a person notice under subsection (8) in relation to an undertaking given by the person under subsection (1); and (b) the person does not give the Minister the information specified in the notice before the end of the period specified in the notice; the Minister may refuse to accept the undertaking. (10) Where the Minister accepts or refuses to accept an undertaking given under subsection (1), the Minister shall give notice in writing of the acceptance or refusal to the person who gave the undertaking. (11) If the Minister accepts an undertaking given by a person under subsection (1), the Minister must give to the person a notice that: (a) specifies: (i) the day on which the undertaking comes into force; and (ii) the period determined by the Minister under paragraph (1)(c) as the period for which the undertaking is to have effect; and (b) includes a statement to the effect that, subject to the Administrative Review Tribunal Act 2024, application may be made to the Administrative Review Tribunal, by or on behalf of a person whose interests are affected by the decision, for review of the decision of the Minister determining the period for which the undertaking is to have effect. (11A) The notice under subsection (11): (a) subject to section 23DGA, may not specify, as the day on which the undertaking comes into force, a day earlier than the day on which the undertaking was accepted; and (b) if, when the undertaking was accepted by the Minister, an undertaking (in this subsection called the previous undertaking) previously given by the person under subsection (1) was in force—must specify, as the day on which the undertaking comes into force, the day immediately after the day on which the previous undertaking ceases, or ceased, to be in force. (12) Where the Minister refuses to accept an undertaking given by a person under subsection (1), the notice given to the person under subsection (10) shall include: (a) a statement to the effect that the person may apply to the Minister under subsection 23DO(1) for reconsideration of the decision of the Minister refusing to accept the undertaking; and (b) a statement to the effect that if a person whose interests are affected by the decision of the Minister on the reconsideration is dissatisfied with that decision, that person may, subject to the Administrative Review Tribunal Act 2024, apply to the Administrative Review Tribunal. for review of that decision. (13) The Minister may, by legislative instrument, determine particulars for the purposes of subsection (2). (17) Any failure to comply with the requirements of subsection (11) or (12) in relation to a decision does not affect the validity of the decision. (18) In this section, public authority means an authority (being a corporation) established by a law of the Commonwealth, of a State, of an internal Territory or of Norfolk Island.