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Schedule 4—Transitional, application, saving and other provisions

Schedule 4 Transitional, application, saving and other provisions

Part 1 Introduction

1  Definitions

In this Schedule:

Aged Care Act means the Aged Care Act 1997 .

Aged Care (TP) Act means the Aged Care (Transitional Provisions) Act 1997 .

Commission means the Aged Care Quality and Safety Commission.

Commission Act means the Aged Care Quality and Safety Commission Act 2018 .

Commissioner means the Commissioner of the Commission.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014 .

sanction notice means a notice given under section 67-5 of the Aged Care Act.

transferred function means any of the following functions or powers:

                     (a)  a function or power relating to the approval of a provider of aged care under Division 8 of the Aged Care Act;

                     (b)  a function or power relating to the revocation of the approval of a provider of aged care under Division 10 of that Act;

                     (c)  a function or power relating to a reportable assault within the meaning of subsection 63-1AA(9) of that Act;

                     (d)  a function or power relating to the imposition of a sanction on an approved provider for non-compliance with the provider’s responsibilities under Part 4.1, 4.2 or 4.3 of that Act;

                     (e)  a function or power relating to the reconsideration or review of a reviewable decision of a kind mentioned in item 1, 3, 54 or 55 of the table in section 85-1 of that Act;

                      (f)  a function performed, or a power exercised, under Part 6.4 of that Act to the extent that:

                              (i)  the function was performed, or the power was exercised, for the purpose of assessing whether an approved provider is complying with the provider’s responsibilities under Part 4.1, 4.2 or 4.3 of that Act; or

                             (ii)  the function or power relates to a warrant issued under section 92-3 of that Act;

                     (g)  any other function or power specified in the transition rules.

transition rules means rules made under item 36 of this Schedule.

transition time means the commencement of this Schedule.

Part 2 Approval of providers of aged care

2  Saving of approval of approved providers

(1)       This item applies if:

                     (a)  before the transition time, a person or body (the entity ) was an approved provider within the meaning of the Aged Care Act; and

                     (b)  immediately before that time, the entity’s approval is in effect and either:

                              (i)  the entity is conducting an aged care service; or

                             (ii)  the entity is an entity of a kind specified in the transitional rules.

(2)       Despite the repeal of Division 8 of the Aged Care Act by Schedule 1 to this Act, the entity is taken, after the transition time, to be an approved provider within the meaning of the Commission Act.

3  Pending applications for approval as provider of aged care

(1)       This item applies in relation to an application made under subsection 8-2(1) of the Aged Care Act if:

                     (a)  the application was made before the transition time; and

                     (b)  immediately before that time, the Secretary has not made a decision on the application.

(2)       The application is taken, after the transition time, to have been made to the Commissioner under subsection 63B(1) of the Commission Act and may be dealt with, or may continue to be dealt with, under Part 7A of that Act.

(3)       If paragraph 8-6(3)(a) of the Aged Care Act applied in relation to the application, then, after the transition time, paragraph 63F(3)(d) of the Commission Act is taken to apply in relation to the application.

(4)       If, before the transition time, a thing was done in relation to the application by the Secretary under, or for the purposes of, Division 8 of the Aged Care Act, then the thing has effect, after that time, as if it had been done by the Commissioner under, or for the purposes of, Part 7A of the Commission Act.

4  Saving of notices requiring further information in relation to approval applications

(1)       This item applies in relation to a notice given by the Secretary under subsection 8-4(1) of the Aged Care Act requiring a person to give information to the Secretary if:

                     (a)  the notice was given before the transition time; and

                     (b)  immediately before that time, the period for giving the information has not ended.

(2)       Despite the repeal of section 8-4 of the Aged Care Act by Schedule 1 to this Act, the notice continues to have effect, after the transition time, as if:

                     (a)  it were a notice given by the Commissioner under subsection 63C(1) of the Commission Act; and

                     (b)  the requirement to give information to the Secretary were a requirement to give information to the Commissioner.

5  Saving of notices requesting further information from approved providers

(1)       This item applies in relation to a notice given by the Secretary under subsection 9-2(1) of the Aged Care Act requesting an approved provider to give information to the Secretary if:

                     (a)  the notice was given before the transition time; and

                     (b)  immediately before that time, the period for giving the information has not ended.

(2)       Despite the amendments of subsection 9-2(1) of the Aged Care Act made by Schedule 1 to this Act, the notice continues to have effect, after the transition time, as if:

                     (a)  it were a notice given by the Commissioner under that subsection, as amended by Schedule 1 to this Act; and

                     (b)  the request to give information to the Secretary were a request to give information to the Commissioner.

6  Saving of notices inviting submissions in relation to revocation of approval

(1)       This item applies in relation to a notice given by the Secretary under subsection 10-3(3) of the Aged Care Act inviting a person to make submissions to the Secretary if:

                     (a)  the notice was given before the transition time; and

                     (b)  immediately before that time, the period for making those submissions has not ended.

(2)       Despite the repeal of section 10-3 of the Aged Care Act by Schedule 1 to this Act, the notice continues to have effect, after the transition time, as if:

                     (a)  it were a notice given by the Commissioner under subsection 63K(1) of the Commission Act; and

                     (b)  the invitation to make submissions to the Secretary were an invitation to make submissions to the Commissioner.

7  Saving of notices relating to revocation of approval as a provider of aged care

(1)       This item applies in relation to a notice of the following kind if, immediately before the transition time, the notice has not taken effect:

                     (a)  a notice (the decision notice ) given by the Secretary under subsection 10-3(5) of the Aged Care Act that notifies a person of the Secretary’s decision (the revocation decision ) to revoke, under subsection 10-3(1) of that Act, the person’s approval as a provider of aged care;

                     (b)  a notice (the limitation notice ) given by the Secretary to that person under paragraph 10-3(7)(a) of that Act;

                     (c)  a notice (the revocation notice ) given by the Secretary to that person under paragraph 10-3(7)(b) of that Act.

(2)       Despite the repeal of section 10-3 of the Aged Care Act by Schedule 1 to this Act:

                     (a)  the decision notice continues to have effect, after the transition time, as if it were a notice given by the Commissioner under subsection 63L(1) of the Commission Act; and

                     (b)  the limitation notice continues to have effect, after that time, as if it were a notice given by the Commissioner under subsection 63L(5) of the Commission Act; and

                     (c)  the revocation notice continues to have effect, after that time, as if it were a notice given by the Commissioner under subsection 63L(2) of the Commission Act.

(3)       Section 63L of the Commission Act applies, after the transition time, in relation to the revocation decision, as if it were a decision of the Commissioner to revoke, under section 63J of that Act, the person’s approval as a provider of aged care.

Part 3 Responsibilities of approved providers etc.

Division 1—Transitional etc. provisions relating to the imposition of sanctions on approved providers

8  Sanctions imposed on approved providers that have not come into effect immediately before transition time etc.

(1)       This item applies in relation to a sanction imposed on an approved provider under Part 4.4 of the Aged Care Act if:

                     (a)  the sanction was imposed before the transition time; and

                     (b)  immediately before that time, either of the following apply:

                              (i)  the sanction has not come into effect in accordance with the sanction notice given in relation to the sanction;

                             (ii)  the sanction period for the sanction specified in the sanction notice given in relation to the sanction has started but not ended.

(2)       Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to this Act:

                     (a)  the sanction is taken, after the transition time, to have been imposed under section 63N of the Commission Act; and

                     (b)  the sanction notice continues to have effect, after that time, as if it were a notice given under that section; and

                     (c)  if the approved provider agreed, before that time, to do one or more things specified in the sanction notice for the purposes of section 66-2 of the Aged Care Act—the agreement continues to have effect, after that time, as if it were an agreement made for the purposes of section 63U of the Commission Act; and

                     (d)  if the approved provider agrees, after that time, to do one or more things specified in the sanction notice for the purposes of section 66-2 of the Aged Care Act—the agreement is taken to have been made for the purposes of section 63U of the Commission Act.

9  Imposition of sanctions on approved providers still under consideration by Secretary at transition time

(1)       This item applies if:

                     (a)  before the transition time, the Secretary was considering whether to impose a sanction on an approved provider under Part 4.4 of the Aged Care Act; and

                     (b)  before that time, the Secretary complied with the requirements of Division 67 of that Act in relation to the imposition of the sanction on the provider; and

                     (c)  immediately before that time, the Secretary is still considering whether to impose the sanction on the provider.

(2)       After the transition time, the Commissioner may decide to impose a sanction on the approved provider under section 63N of the Commission Act.

(3)       In deciding whether to impose a sanction on the approved provider under section 63N of the Commission Act, the Commissioner may:

                     (a)  consider any relevant thing done before the transition time by, or in relation to, the Secretary under or for the purposes of Part 4.4 of the Aged Care Act; and

                     (b)  may disregard Division 3 of Part 7B of the Commission Act if the Commissioner considers it is reasonable to do so in the circumstances.

10  Dealing with certain pre-transition notices of non-compliance

(1)       This item applies if:

                     (a)  before the transition time, the Secretary gave a notice under subsection 67-2(1) of the Aged Care Act relating to an approved provider’s non-compliance with one or more of the provider’s responsibilities under Part 4.1, 4.2 or 4.3 of that Act; and

                     (b)  before that time, the approved provider made submissions to the Secretary in accordance with the notice and the Secretary considered that the submissions:

                              (i)  proposed appropriate action to remedy the non-compliance; or

                             (ii)  set out an acceptable reason for the non-compliance; or

                            (iii)  were otherwise satisfactory; and

                     (c)  immediately before that time, the Secretary has not given the approved provider a notice under subsection 67-4(1) of that Act in relation to the non-compliance.

(2)       After the transition time:

                     (a)  the notice is taken, for the purposes of Part 7B of the Commission Act, to be a non-compliance notice within the meaning of that Act; and

                     (b)  the Commissioner may decide to give the approved provider a notice under section 63T of that Act in relation to the non-compliance.

11  Saving of notices of intention to impose sanctions

(1)       This item applies in relation to a notice given by the Secretary under subsection 67-3(1) of the Aged Care Act inviting an approved provider to make submissions to the Secretary if:

                     (a)  the notice was given before the transition time; and

                     (b)  immediately before that time, the period for making the submissions has not ended.

(2)       Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to this Act, the notice continues to have effect, after the transition time, as if:

                     (a)  it were a notice given by the Commissioner under subsection 63S(2) of the Commission Act; and

                     (b)  the invitation to make submissions to the Secretary were an invitation to make submissions to the Commissioner.

12  Saving of notices to remedy non-compliance

(1)       This item applies in relation to a notice given by the Secretary to an approved provider under subsection 67-4(1) of the Aged Care Act if:

                     (a)  the notice was given before the transition time; and

                     (b)  immediately before that time, the period for giving the undertaking required by the notice to the Secretary has not ended.

(2)       Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to this Act, the notice continues to have effect, after the transition time, as if:

                     (a)  it were a notice given by the Commissioner under subsection 63T(2) of the Commission Act; and

                     (b)  the requirement to give the required undertaking to the Secretary were a requirement to give the required undertaking to the Commissioner; and

                     (c)  if the approved provider gives the required undertaking after the transition time—the undertaking is taken to have been given for the purposes of section 63T of the Commission Act.

13  Continued effect of undertaking given by approved provider to remedy non-compliance

(1)       This item applies in relation to an undertaking given by an approved provider for the purposes of section 67-4 of the Aged Care Act before the transition time.

(2)       Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to this Act, the undertaking continues to have effect, after the transition time, as if it were an undertaking given for the purposes of section 63T of the Commission Act.

(3)       The transition rules may provide that subitem (2) does not apply in relation to a specified undertaking.

14  Pending applications for lifting of sanctions imposed on approved providers

(1)       This item applies in relation to an application made under section 68-4 of the Aged Care Act if:

                     (a)  the application was made before the transition time; and

                     (b)  immediately before that time, the Secretary has not made a decision on the application.

(2)       The application is taken, after the transition time, to have been made to the Commissioner under section 63V of the Commission Act and may be dealt with, or may continue to be dealt with, under Division 4 of Part 7B of that Act.

(3)       If, before the transition time, a thing was done in relation to the application by the Secretary under, or for the purposes of, Division 68 of the Aged Care Act, then the thing has effect, after that time, as if it had been done by the Commissioner under, or for the purposes of, Division 4 of Part 7B of the Commission Act.

15  Saving of notices requiring further information in relation to application to lift sanctions

(1)       This item applies in relation to a notice given by the Secretary under subsection 68-5(1) of the Aged Care Act requiring a person to give information to the Secretary if:

                     (a)  the notice was given before the transition time; and

                     (b)  immediately before that time, the period for giving the information has not ended.

(2)       Despite the repeal of Part 4.4 of the Aged Care Act by Schedule 2 to this Act, the notice continues to have effect, after the transition time, as if:

                     (a)  it were a notice given by the Commissioner under subsection 63W(1) of the Commission Act; and

                     (b)  the requirement to give information to the Secretary were a requirement to give information to the Commissioner.

16  Application—Part 7B of the Commission Act

Part 7B of the Commission Act, as inserted by Schedule 2 to this Act, applies in relation to a failure of an approved provider to comply with an aged care responsibility, whether that failure occurs before, at or after the transition time.

Division 2—Application provisions relating to Part 6.4 of the Aged Care Act

17  Application—power to enter premises and exercise search powers in relation to certain applications and grants

Section 91-1 of the Aged Care Act, as inserted by Schedule 2 to this Act, applies in relation to the following, whether made before, at or after the transition time:

                     (a)  an application under the Aged Care Act or the Aged Care (TP) Act;

                     (b)  a grant under Chapter 5 of the Aged Care Act.

18  Application—monitoring powers

(1)       Subsection 92-1(1) of the Aged Care Act, as inserted by Schedule 2 to this Act, applies in relation to the following, whether made before, at or after the transition time:

                     (a)  an appraisal under section 25-3 of the Aged Care Act;

                     (b)  a reappraisal under sections 27-3 and 27-5 of the Aged Care Act.

(2)       Subsection 92-1(2) of the Aged Care Act, as inserted by Schedule 2 to this Act, applies in relation to information given before, at or after the transition time.

19  Application—investigation powers

Subsection 92-3(1) of the Aged Care Act, as inserted by Schedule 2 to this Act, applies in relation to a contravention of a provision that occurs before, at or after the transition time.

20  Application—notices to attend to answer questions etc.

Subsection 93-1(1) of the Aged Care Act, as inserted by Schedule 2 to this Act, applies in relation to the following, whether made before, at or after the transition time:

                     (a)  an application under the Aged Care Act or the Aged Care (TP) Act;

                     (b)  an appraisal under section 25-3 of the Aged Care Act;

                     (c)  a reappraisal under sections 27-3 and 27-5 of the Aged Care Act;

                     (d)  a claim for payment of subsidy under Chapter 3 of the Aged Care Act or Chapter 3 of the Aged Care (TP) Act;

                     (e)  a grant under Chapter 5 of the Aged Care Act.

21  Saving of appointment of certain authorised officers

(1)       This item applies to a person if:

                     (a)  immediately before the transition time, the person was appointed under section 90-3 of the Aged Care Act as an authorised officer; and

                     (b)  immediately after that time, the person continues to be an APS employee in the Department.

(2)       The person is taken, after that time, to have been appointed under subsection 94-2(1) of the Aged Care Act as an authorised officer for the purposes referred to in that subsection.

Division 3—Application etc. provisions relating to Parts 8 and 8A of the Commission Act

22  Application—monitoring powers

(1)       Subsection 74B(1) of the Commission Act, as inserted by Schedule 2 to this Act, applies in relation to conduct that occurs before, at or after the transition time.

(2)       Subsection 74B(2) of the Commission Act, as inserted by Schedule 2 to this Act, applies in relation to information given before, at or after the transition time.

23  Application—investigation powers

Subsection 74D(1) of the Commission Act, as inserted by Schedule 2 to this Act, applies in relation to a contravention of a provision that occurs before, at or after the transition time.

24  Saving of appointment of authorised complaints officers

(1)       This item applies to a person who was, immediately before the transition time, appointed under subsection 73(1) of the Commission Act as an authorised complaints officer.

(2)       The person is taken, after the transition time, to have been appointed under subsection 75A(1) of the Commission Act as an authorised officer for the purposes referred to in that subsection.

(3)       An identity card issued to the person under subsection 74(1) of the Commission Act before the transition time is taken, after that time, to have been issued under section 35 or 76 of the Regulatory Powers Act.

25  Saving of appointment of certain authorised officers

(1)       This item applies to a person if:

                     (a)  immediately before the transition time, the person was appointed under section 90-3 of the Aged Care Act as an authorised officer; and

                     (b)  immediately after that time, the person becomes a member of the staff of the Commission.

(2)       The person is taken, after that time, to have been appointed under subsection 75A(1) of the Commission Act as an authorised officer for the purposes referred to in that subsection.

26  Saving of identity cards issued to quality assessors

An identity card issued to a quality assessor under subsection 74(1) of the Commission Act before the transition time is taken, after that time, to have been issued under that subsection, as amended by Schedule 2 to this Act.

Division 4—Other matters

27  Application—suspending approved providers from making appraisals and reappraisals

Paragraph 25-4(1)(a) of the Aged Care Act, as substituted by Schedule 2 to this Act, applies in relation to an appraisal or reappraisal made before, at or after the transition time.

28  Transitional—annual report

Despite the repeal of paragraph 63-2(2)(g) of the Aged Care Act by Schedule 2 to this Act, that paragraph continues to apply, after the transition time, in relation to the report for the year ending on 30 June 2020 as if that repeal had not happened.

Part 4 Reconsideration and review of decisions

29  Request for reconsideration of pre-transition decisions relating to approval etc.

(1)       This item applies in relation to a decision of a kind mentioned in item 1, 3, 54 or 55 of the table in section 85-1 of the Aged Care Act if:

                     (a)  the decision was made before the transition time; and

                     (b)  immediately before that time, the period (the reconsideration period ) referred to in subparagraph 85-5(3)(a)(i) of that Act during which a person (the relevant person ) may make a request for the reconsideration of the decision has not ended.

(2)       Sections 74K and 74L of the Commission Act apply, after the transition time, in relation to the decision as if:

                     (a)  the decision were a reviewable decision of the same kind; and

                     (b)  the relevant person were the affected person for the reviewable decision; and

                     (c)  paragraph 74K(2)(c) of that Act were replaced with the following paragraph:

                    “(c)  be given to the Commissioner before the end of the reconsideration period.”.

30  Pending requests for reconsideration of pre-transition decisions relating to approval etc.

(1)       This item applies in relation to a request (the pending request ) made under subsection 85-5(1) of the Aged Care Act for the reconsideration of a decision (the original decision ) of a kind mentioned in item 1, 3, 54 or 55 of the table in section 85-1 of that Act if:

                     (a)  the pending request was made before the transition time; and

                     (b)  immediately before that time, the Secretary has not made a decision on the pending request.

(2)       The pending request is taken, after the transition time, to be a request made to the Commissioner under section 74K of the Commission Act and may be dealt with, or may continue to be dealt with, under Part 8B of that Act as if:

                     (a)  the original decision were a reviewable decision of the same kind; and

                     (b)  the person who made the request were the affected person for the reviewable decision.

(3)       If, before the transition time, a thing was done by the Secretary in relation to the pending request, then the thing has effect, after that time, as if it had been done by the Commissioner.

31  Reconsideration of pre-transition decisions relating to approval etc. at the Commissioner’s own initiative

(1)       This item applies if a decision of a kind mentioned in item 1, 3, 54 or 55 of the table in section 85-1 of the Aged Care Act is made before the transition time.

(2)       Section 74M of the Commission Act applies, after the transition time, in relation to the decision as if:

                     (a)  the decision were a reviewable decision of the same kind; and

                     (b)  the person to whom the decision relates were the affected person for the reviewable decision.

32  Review by the Administrative Appeals Tribunal of certain pre-transition decisions

(1)       This item applies to a decision made by the Secretary under subsection 85-4(4) or 85-5(5) of the Aged Care Act if:

                     (a)  the decision was made before the transition time; and

                     (b)  immediately before that time, both of the following apply:

                              (i)  an application for review of the decision by the Administrative Appeals Tribunal has not been made;

                             (ii)  the time for a person to make such an application has not ended (including any extensions of that time under section 29 of the Administrative Appeals Tribunal Act 1975 ).

(2)       Section 74N of the Commission Act applies, after the transition time, in relation to the decision as if it were a reconsideration decision of the Commissioner.

Part 5 Provisions relating to transferred functions

33  Transfer of records

(1)       This item applies to any records or documents that:

                     (a)  relate to a transferred function; and

                     (b)  immediately before the transition time, were in the possession of the:

                              (i)  the Secretary; or

                             (ii)  an APS employee in the Department; or

                            (iii)  an authorised officer within the meaning of section 90-3 of the Aged Care Act; or

                            (iv)  a delegate or subdelegate of the Secretary.

(2)       The records and documents are to be transferred to the Commissioner after the transition time.

34  Protected information

(1)       This item applies to information that:

                     (a)  relates to a transferred function; and

                     (b)  immediately before the transition time, was protected information within the meaning of section 86-1 of the Aged Care Act.

(2)       For the purposes of the Commission Act, the information is taken, after the transition time, to be protected information within the meaning of that Act.

35  Legal proceedings

If:

                     (a)  the Secretary is a party to proceedings in any court or tribunal; and

                     (b)  the proceedings relate to a transferred function; and

                     (c)  immediately before the transition time, the proceedings are still pending;

the Commissioner is substituted for the Secretary, from that time, as a party to those proceedings.

Part 6 Rules

36  Rules

(1)       The Minister may, by legislative instrument, make rules prescribing matters:

                     (a)  required or permitted by this Schedule to be prescribed by the rules; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.

(2)       Without limiting subitem (1), the rules may prescribe matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.

(3)       To avoid doubt, the rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  directly amend the text of this Act.

(4)       This Schedule (other than subitem (3)) does not limit the rules that may be made for the purposes of subitems (1) and (2).