Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Aged Care Amendment (Security and Protection) Bill 2007

Schedule 1 Investigations

   

Aged Care Act 1997

1  Paragraph 56-4(1)(e)

Repeal the paragraph, substitute:

                     (e)  comply with any requirement made of the approved provider under the Investigation Principles.

Note:       The repeal and substitution of paragraph 56-4(1)(e) of the Aged Care Act 1997 by this Schedule does not affect an obligation an approved provider had under that paragraph before its repeal to comply with a determination of a complaint by a committee. See section 8 of the Acts Interpretation Act 1901 .

2  Section 84-1

Repeal the section, substitute:

84-1   What this Chapter is about

This Chapter deals with the following matters relating to the administration of this Act:

               (a)     reconsideration and administrative review of decisions (see Part 6.1);

              (b)     protection of information (see Part 6.2);

               (c)     record-keeping obligations of approved providers (see Part 6.3);

              (d)     powers of officers in relation to monitoring compliance and offences (see Part 6.4);

               (e)     investigations of matters relating to this Act or the Principles made under section 96-1 (see Part 6.4A);

               (f)     recovery of overpayments by the Commonwealth (see Part 6.5);

               (g)     the Aged Care Commissioner, whose functions include examining certain matters relating to investigations (see Part 6.6).

3  Subsection 86-9(3)

Repeal the subsection.

4  After Part 6.4

Insert:

Part 6.4A Investigations

Division 94A Investigation Principles

94A-1   Investigation Principles

Provision for investigation of matters

             (1)  The Investigation Principles may make provision relating to the investigation of matters (including complaints) relating to this Act or the Principles made under section 96-1, including provision relating to one or more of the following:

                     (a)  which matters are to be investigated;

                     (b)  how investigations are to be conducted;

                     (c)  considerations in making decisions relating to investigations;

                     (d)  procedures for reconsideration or examination of decisions relating to investigations.

Note:          The Investigation Principles are made by the Minister under section 96-1.

Provision for action if investigation finds non-compliance

             (2)  The Investigation Principles may make provision relating to actions that may be taken (including the making of requirements of an approved provider) if it is found in an investigation that an approved provider has not complied with its responsibilities under Part 4.1, 4.2 or 4.3.

Transitional provisions relating to complaints

             (3)  The Investigation Principles may make provision of a transitional or saving nature relating to complaints that:

                     (a)  related to this Act or the Principles made under section 96-1; and

                     (b)  were being dealt with under the Committee Principles immediately before the commencement of this section.

Note:          Part 6.6 also provides for Investigation Principles to do certain things.

Relationship with other provisions

             (4)  To avoid doubt, this Part and the Investigation Principles do not affect any of the following:

                     (a)  paragraph 56-4(1)(d) (about giving people authorised to investigate complaints access to an * aged care service as specified in the User Rights Principles);

                     (b)  the User Rights Principles;

                     (c)  Part 4.4 (Consequences of non-compliance);

                     (d)  the Sanctions Principles;

                     (e)  the other Parts of this Chapter (except Part 6.6).

5  At the end of Chapter 6

Add:

Part 6.6 Aged Care Commissioner

Division 95A Aged Care Commissioner

95A-1   Aged Care Commissioner

             (1)  There is to be an * Aged Care Commissioner.

             (2)  The functions of the * Aged Care Commissioner are as follows:

                     (a)  to examine decisions that are made by the Secretary under the Investigation Principles and are identified by those Principles as being examinable by the Aged Care Commissioner, and make recommendations to the Secretary arising from the examination;

                     (b)  to examine complaints made to the Aged Care Commissioner about the Secretary’s processes for handling matters under the Investigation Principles, and make recommendations to the Secretary arising from the examination;

                     (c)  to examine, on the Aged Care Commissioner’s own initiative, the Secretary’s processes for handling matters under the Investigation Principles, and make recommendations to the Secretary arising from the examination;

                     (d)  to examine complaints made to the Aged Care Commissioner about:

                              (i)  the conduct of an * accreditation body relating to its responsibilities under the Accreditation Grant Principles; or

                             (ii)  the conduct of a person carrying out an audit, or making a support contact, under those Principles;

                            (but not a complaint about the merits of a decision under those Principles), and make recommendations to the accreditation body concerned arising from the examination;

                     (e)  to examine, on the Aged Care Commissioner’s own initiative:

                              (i)  the conduct of an accreditation body relating to its responsibilities under the Accreditation Grant Principles; and

                             (ii)  the conduct of persons carrying out audits, or making support contacts, under those Principles;

                            and make recommendations to the accreditation body concerned arising from the examination;

                      (f)  to advise the Minister, at the Minister’s request, about matters relating to any of paragraphs (a), (b), (c), (d) and (e);

                     (g)  the functions (if any) specified in the Investigation Principles.

95A-2   Appointment

             (1)  The * Aged Care Commissioner is to be appointed by the Minister by written instrument.

             (2)  The * Aged Care Commissioner may be appointed on a full-time basis or on a part-time basis.

             (3)  The * Aged Care Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

95A-3   Acting appointments

             (1)  The Minister may appoint a person to act as the * Aged Care Commissioner:

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

                     (b)  during any period, or during all periods, when the Aged Care Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

             (2)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

95A-4   Remuneration

             (1)  The * Aged Care 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 Aged Care Commissioner is to be paid the remuneration that is prescribed by the Investigation Principles.

             (2)  The * Aged Care Commissioner is to be paid the allowances that are prescribed by the Investigation Principles.

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

95A-5   Leave of absence

Full-time Commissioner

             (1)  If the * Aged Care Commissioner is appointed on a full-time basis:

                     (a)  he or she has the recreation leave entitlements that are determined by the Remuneration Tribunal; and

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

Part-time Commissioner

             (2)  If the * Aged Care Commissioner is appointed on a part-time basis, the Minister may grant leave of absence to the Aged Care Commissioner on the terms and conditions that the Minister determines.

95A-6   Other terms and conditions

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

95A-7   Restrictions on outside employment

Full-time Commissioner

             (1)  If the * Aged Care Commissioner is appointed on a full-time basis, he or she must not engage in paid employment outside the duties of the Aged Care Commissioner’s office without the Minister’s approval.

Part-time Commissioner

             (2)  If the * Aged Care Commissioner is appointed on a part-time basis, he or she must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties.

95A-8   Disclosure of interests

                   The * Aged Care Commissioner must give written notice to the Minister of all interests, pecuniary or otherwise, that the Commissioner has or acquires that could conflict with the proper performance of the Commissioner’s functions.

95A-9   Resignation

                   The * Aged Care Commissioner may resign his or her appointment by giving the Minister a written resignation.

95A-10   Termination of appointment

             (1)  The Minister may terminate the appointment of the * Aged Care Commissioner for misbehaviour or physical or mental incapacity.

             (2)  The Minister must terminate the appointment of the * Aged Care Commissioner if:

                     (a)  the Aged Care 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 his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

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

                     (c)  the Aged Care Commissioner is appointed on a full-time basis and engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                     (d)  the Aged Care Commissioner is appointed on a part-time basis and engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office; or

                     (e)  the Aged Care Commissioner fails, without reasonable excuse, to comply with section 95A-8.

95A-11   Delegations of Aged Care Commissioner’s functions

             (1)  The * Aged Care Commissioner may delegate in writing all or any of his or her functions to an APS employee in the Department.

             (2)  In exercising his or her powers under subsection (1), the * Aged Care Commissioner is to have regard to the function to be performed by the delegate and the responsibilities of the APS employee to whom the function is delegated.

             (3)  In performing functions delegated under subsection (1), the delegate must comply with any directions of the * Aged Care Commissioner.

95A-12   Annual report

             (1)  The * Aged Care Commissioner must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the Aged Care Commissioner’s operations during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.

             (2)  The * Aged Care Commissioner must include in the report:

                     (a)  the number of decisions made by the Secretary under the Investigation Principles that the Aged Care Commissioner examined during the financial year; and

                     (b)  the number of complaints about the following matters ( examinable complaints ) that were made to the Aged Care Commissioner during the financial year:

                              (i)  the Secretary’s processes for handling of matters under the Investigation Principles;

                             (ii)  the conduct of an * accreditation body relating to its responsibilities under the Accreditation Grant Principles;

                            (iii)  the conduct of a person carrying out an audit, or making a support contact, under those Principles; and

                     (c)  the number of examinable complaints that the Aged Care Commissioner started to examine during the financial year; and

                     (d)  the number of examinable complaints that the Aged Care Commissioner finished examining during the financial year; and

                     (e)  a summary of the nature of the examinations made by the Aged Care Commissioner during the financial year of examinable complaints; and

                      (f)  the number of examinations made by the Aged Care Commissioner on his or her own initiative during the financial year; and

                     (g)  a summary of the nature of examinations made by the Aged Care Commissioner on his or her own initiative during the financial year; and

                     (h)  the number of requests for advice the Minister made to the Aged Care Commissioner during the financial year; and

                      (i)  a summary of the nature of those requests; and

                      (j)  a summary of the nature of advice given by the Commissioner to the Minister during the financial year in response to requests by the Minister; and

                     (k)  any other information required by the Investigation Principles to be included in the report.

6  Subsection 96-1(1) (after table item 16)

Insert:

 

16A

Investigation Principles

Parts 6.4A and 6.6

7  Subsection 96-2(1)

After “Department”, insert “, or to the Aged Care Commissioner,”.

Note:       The heading to section 96-2 is altered by adding at the end “ of Secretary’s powers and functions ”.

8  Subsection 96-3(2)

Repeal the subsection.

9  Clause 1 of Schedule 1

Insert:

Aged Care Commissioner means the Aged Care Commissioner holding office under Part 6.6.