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Part 3—Commissioner

Part 3 Commissioner

Division 1 Introduction

14   Simplified outline of this Part

There is to be a Commissioner of the Commission with functions that include:

       (a)     protecting and enhancing the safety, health, well-being and quality of life of aged care consumers; and

      (b)     promoting the provision of quality care and services by approved providers of aged care services and service providers of Commonwealth-funded aged care services; and

       (c)     the consumer engagement functions; and

      (d)     the complaints functions; and

       (e)     the regulatory functions; and

       (f)     the education functions.

The Minister is to appoint the Commissioner and may give written directions about the performance of the Commissioner’s functions.

The Commissioner may charge fees for services provided by the Commissioner in performing the Commissioner’s functions.

Division 2 Functions and powers of the Commissioner

15   Commissioner

                   There is to be a Commissioner of the Commission.

16   Functions of the Commissioner

             (1)  The Commissioner has the following functions:

                     (a)  to protect and enhance the safety, health, well-being and quality of life of aged care consumers;

                     (b)  to promote the provision of quality care and services by:

                              (i)  approved providers of aged care services; and

                             (ii)  service providers of Commonwealth-funded aged care services;

                     (c)  the consumer engagement functions;

                     (d)  the complaints functions;

                     (e)  the regulatory functions;

                      (f)  the education functions;

                     (g)  such other functions as are conferred on the Commissioner by:

                              (i)  this Act or the rules; or

                             (ii)  the Aged Care Act or the Aged Care Principles; or

                            (iii)  any other law of the Commonwealth;

                     (h)  if the Commissioner considers it is appropriate to do so in particular circumstances—to seek and consider clinical advice that is relevant to the performance of any of the above functions;

                      (i)  to provide, at the request of the Minister, advice to the Minister in relation to any of the above functions;

                      (j)  to do anything incidental or conducive to the performance of any of the above functions.

             (2)  The Commissioner has the power to do all things necessary or convenient to be done for, or in connection with, the performance of the Commissioner’s functions.

17   Consumer engagement functions of the Commissioner

                   The consumer engagement functions of the Commissioner are:

                     (a)  to develop, in consultation with aged care consumers, best practice models for the engagement of approved providers of aged care services, and service providers of Commonwealth-funded aged care services, with their aged care consumers; and

                     (b)  to promote those best practice models to such approved providers and service providers.

18   Complaints functions of the Commissioner

                   The complaints functions of the Commissioner are to, in accordance with rules, deal with complaints made, or information given, to the Commissioner about the following matters:

                     (a)  an approved provider’s responsibilities under the Aged Care Act or the Aged Care Principles;

                     (b)  the responsibilities of a service provider of a Commonwealth-funded aged care service under the funding agreement that relates to the service.

19   Regulatory functions of the Commissioner

                   The regulatory functions of the Commissioner are:

                     (a)  to accredit the following aged care services in accordance with the rules:

                              (i)  residential care services;

                             (ii)  any other aged care services of a kind specified in the rules; and

                     (b)  to conduct quality reviews of the following services in accordance with the rules:

                              (i)  home care services;

                             (ii)  any other aged care services of a kind specified in the rules;

                            (iii)  Commonwealth-funded aged care services; and

                     (c)  to monitor, in accordance with the rules, the quality of care and services provided by approved providers of the following aged care services:

                              (i)  residential care services;

                             (ii)  home care services;

                            (iii)  any other aged care services of a kind specified in the rules; and

                     (d)  to monitor, in accordance with the rules, the quality of care and services provided by service providers of Commonwealth-funded aged care services; and

                     (e)  to register, in accordance with the rules, persons as quality assessors for the purposes of performing functions, or exercising powers, under this Act or the rules.

20   Education functions of the Commissioner

                   The education functions of the Commissioner are:

                     (a)  to provide information and education about matters relating to any one or more of the Commissioner’s functions referred to in section 16 to any or all of the following:

                              (i)  approved providers;

                             (ii)  service providers of Commonwealth-funded aged care services;

                            (iii)  aged care consumers;

                            (iv)  representatives of aged care consumers;

                             (v)  the public; and

                     (b)  to collect, correlate, analyse and disseminate information relating to any one or more of the Commissioner’s functions referred to in section 16.

21   Rules may make provision for, or in relation to, the performance of a function of the Commissioner

             (1)  The rules may make provision for, or in relation to, the performance of a function conferred on the Commissioner by section 16.

Complaints functions

             (2)  Without limiting subsection (1), the rules may establish a scheme for dealing with complaints made, or information given, to the Commissioner about the following matters:

                     (a)  an approved provider’s responsibilities under the Aged Care Act or the Aged Care Principles;

                     (b)  the responsibilities of a service provider of a Commonwealth-funded aged care service under the funding agreement that relates to the service.

             (3)  Without limiting subsection (2), the rules may make provision in relation to any one or more of the following:

                     (a)  how complaints about a matter referred to in that subsection may be made, managed and resolved;

                     (b)  how information given to the Commissioner about a matter referred to in that subsection may be dealt with;

                     (c)  the roles, rights and responsibilities of complainants, approved providers, service providers of Commonwealth-funded aged care services and any other relevant persons;

                     (d)  the considerations relevant to resolving such complaints or dealing with such information;

                     (e)  the actions that may be taken to address such complaints, or to deal with such information, which may include requiring an approved provider or service provider of a Commonwealth-funded aged care service to do something;

                      (f)  the review or reconsideration of decisions made under the scheme.

Regulatory functions

             (4)  Without limiting subsection (1), the rules may make provision for or in relation to:

                     (a)  the accreditation of an aged care service referred to in paragraph 19(a); and

                     (b)  the circumstances in which an aged care service is taken to be accredited for the purposes of the rules; and

                     (c)  the conduct of quality reviews of a service referred to in paragraph 19(b); and

                     (d)  the monitoring of the quality of care and services provided by approved providers of an aged care service referred to in paragraph 19(c); and

                     (e)  the monitoring of the quality of care and services provided by service providers of Commonwealth-funded aged care services; and

                      (f)  the registration of persons as quality assessors for the purposes of performing functions, or exercising powers, under this Act or the rules; and

                     (g)  the functions to be performed, or the powers to be exercised, by quality assessors; and

                     (h)  the review or reconsideration of decisions relating to the accreditation of an aged care service or the registration of a quality assessor.

             (5)  Without limiting paragraph (4)(d), the rules may do any or all of the following:

                     (a)  require approved providers of aged care services to have a written plan for continuous improvement in the quality of care and services they provide;

                     (b)  make provision in relation to the setting of timetables for improvement in the quality of care and services provided by approved providers of aged care services;

                     (c)  make provision in relation to forms of contact between approved providers of aged care services, and the Commissioner or a quality assessor, for specified purposes;

                     (d)  provide for the conduct of audits of aged cares services in specified circumstances.

             (6)  Without limiting paragraph (4)(e), the rules may do any or all of the following:

                     (a)  require service providers of Commonwealth-funded aged care services to have a written plan for continuous improvement in the quality of care and services they provide;

                     (b)  make provision in relation to the setting of timetables for improvement in the quality of care and services provided by service providers of Commonwealth-funded aged care services;

                     (c)  make provision in relation to forms of contact between service providers of Commonwealth-funded aged care services, and the Commissioner or a quality assessor, for specified purposes;

                     (d)  provide for the conduct of audits of Commonwealth-funded aged care services in specified circumstances.

22   Minister may give directions to the Commissioner

             (1)  The Minister may, by legislative instrument, give written directions to the Commissioner about the performance of the Commissioner’s functions.

Note:          Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).

             (2)  A direction given by the Minister under subsection (1):

                     (a)  must be of a general nature only; and

                     (b)  must not relate to a particular aged care consumer, approved provider or service provider of a Commonwealth-funded aged care service.

             (3)  The Commissioner must comply with a direction under subsection (1).

             (4)  Subsection (3) does not apply to the extent that the direction relates to the Commissioner’s performance of functions, or exercise of powers, under the following Acts in relation to the Commission:

                     (a)  the Public Service Act 1999 ;

                     (b)  the Public Governance, Performance and Accountability Act 2013 .

23   Fees

             (1)  The Commissioner may charge fees for services provided by the Commissioner in performing the Commissioner’s functions.

             (2)  A fee must not be such as to amount to taxation.

Division 3 Appointment of the Commissioner

24   Appointment

             (1)  The Commissioner is to be appointed by the Minister by written instrument, on a full-time basis.

Note:          The Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901 .

             (2)  The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

25   Acting Commissioner

                   The Minister may, by written instrument, appoint a person to act as the Commissioner:

                     (a)  during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 .

Division 4 Terms and conditions of appointment

26   Remuneration and allowances

             (1)  The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is specified in the rules.

             (2)  The Commissioner is to be paid the allowances that are specified in the rules.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

27   Leave of absence

             (1)  The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

28   Other paid work

                   The Commissioner must not engage in paid work outside the duties of the Commissioner’s office without the Minister’s approval.

29   Other terms and conditions

                   The Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined, in writing, by the Minister.

30   Resignation

             (1)  The Commissioner may resign the Commissioner’s appointment by giving the Minister a written resignation.

             (2)  The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.

31   Termination of appointment

             (1)  The Minister may terminate the appointment of the Commissioner:

                     (a)  for misbehaviour; or

                     (b)  if the Commissioner is unable to perform the duties of the office because of physical or mental incapacity.

             (2)  The Minister may terminate the appointment of the Commissioner if:

                     (a)  the Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with the Commissioner’s creditors; or

                            (iv)  makes an assignment of the Commissioner’s remuneration for the benefit of the Commissioner’s creditors; or

                     (b)  the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Commissioner engages, except with the Minister’s approval, in paid work outside the duties of the Commissioner’s office (see section 28); or

                     (d)  fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.