An Act to provide Financial Assistance in respect of Nursing Homes for disabled persons under the age of 70 years

This Act may be cited as the Nursing Homes Assistance Act 1974.

This Act shall come into operation on the day on which it receives the Royal Assent.

(1) In this Act, unless the contrary intention appears:

approved nursing home means a nursing home in respect of which an approval under section 4 is in force.

approved services means services provided by the proprietor of an approved nursing home, being services in relation to which this Act applies by virtue of an approval under subsection 6(1) that is in force.

authorized means authorized, in writing, by the Minister.

committee means a Nursing Homes Advisory Committee for a State.

Committee processing fee means the fee referred to in subsection 15F(1) payable by the proprietor of a nursing home.

common form of agreement means the form of agreement approved by the Minister under subsection 12(1).

disabled person means a person who is included in the target group for the purposes of Part II of the Disability Services Act 1986.

eligible organization means:

(a) an organization (other than an organization conducted or controlled by, or by persons appointed by, the Government of the Commonwealth or the government of a State) that is carried on otherwise than for the purpose of profit or gain to the individual members of the organization and is:

(i) an organization the principal objects or purposes of which are charitable or benevolent;

(ii) an organization of former members of the Defence Force established in every State;

(iii) a branch of an organization referred to in paragraph (ii) that is established for a State; or

(iv) an organization approved by the Minister for the purposes of this Act; and

(b) a local governing body;

and includes:

(c) a trustee or trustees under a trust established by an organization referred to in paragraph (a) or by a local governing body;

(d) a corporation established by such an organization or by a local governing body; and

(e) the trustee or trustees under a trust established for charitable or benevolent purposes and approved by the Minister for the purposes of this Act;

but does not include an organization that conducts, or has at any time conducted, a public hospital.

Government nursing home means a prescribed nursing home conducted by or on behalf of the Commonwealth or a State.

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

nursing care means nursing care given by or under the supervision of a registered nurse.

nursing home means premises used exclusively for the purpose of providing nursing home care to persons, the majority of whom are disabled persons under the age of 70 years.

nursing home care means accommodation, personal care and nursing care of a kind provided in a nursing home, and includes any prescribed service of a kind provided in a nursing home.

personal care means assistance of a personal nature given to help a person attend to his or her daily needs or carry out his or her daily routine.

premises includes a part of premises, but does not include:

(a) any premises on Crown land, whether in a State or an internal Territory;

(b) any premises on land held under a lease or licence from the Crown, whether in a State or in an internal Territory;

proprietor, in relation to a nursing home, means the organization, body or other person carrying on the nursing home.

qualified nursing home patient means a person who occupies a bed in an approved nursing home for the purpose of nursing home care.

registered nurse means:

(a) a person registered under a law of a State or Territory (other than South Australia) as a general nurse; or

(b) a person registered under a law of South Australia as a nurse.

Secretary means the Secretary to the Department.

special needs group has the same meaning as in section 39 of the National Health Act 1953.

State includes the Northern Territory.

(2) Where the Minister, having regard to the particular circumstances of the case, considers that an organization (whether an eligible organization or not) should be treated, for the purposes of this Act, as an eligible organization with respect to particular premises (whether premises within the meaning of this Act or not), the Minister shall, by instrument in writing, make a declaration accordingly.

(2A) A declaration under subsection (2) may be expressed to take effect as from a date before the making of the declaration, not being a date before the commencement of this subsection.

(2B) A reference in this Act to a nursing home to which this Act applies shall be read as a reference to:

(a) a nursing home, other than a Government nursing home, conducted by an eligible organization; or

(b) a nursing home conducted on premises to which a declaration under subsection (2) applies by the organization to which the declaration applies.

(2C) Where a nursing home is a nursing home to which this Act applies by virtue of a declaration under subsection (2), the premises on which the nursing home is conducted shall, if they are not otherwise premises within the meaning of this Act, be deemed to be, by force of this subsection, premises within the meaning of this Act.

(3) Where, by virtue of an approval under subsection 6(1) that is in force, this Act applies in relation to services provided, or to be provided, at premises by the proprietor of a nursing home for a class of persons:

(a) those premises are approved premises; and

(b) that class of persons is an approved class of persons;

in relation to those services, and to that proprietor, for the purpose of this Act.

3AA 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.

3A Approval in principle of nursing home etc.

(2) Upon application in writing by a person who is, or proposes to become, the proprietor of a nursing home, the Minister may, in his or her discretion, grant to the applicant a certificate in writing:

(a) stating that if the applicant applies under subsection 4(1) of this Act within the period of 12 months after the grant of the certificate for the approval of premises specified in the certificate as an approved nursing home and the Minister is satisfied that the premises comply, at the time of that last‑mentioned application, with the specifications (if any) set out in the certificate, that last‑mentioned application will not be refused under subsection 4(3) or (3A) of this Act;

(b) stating that if that approval is granted, the number of beds determined in relation to the nursing home for the purposes of paragraph 4(6)(a) of this Act will not be less than the number of beds specified in the certificate; and

(c) in a case where the Minister considers it appropriate to do so—stating that if that approval is granted, the admission of persons to the nursing home as qualified nursing home patients will be in accordance with a special purpose of the nursing home specified in the certificate.

(3) Upon application in writing by the proprietor of an approved nursing home who proposes to make an alteration or addition to the premises occupied by the nursing home, the purpose of which is, or the effect of which will be, to enable the number of beds available in the nursing home for qualified nursing home patients to be increased, the Minister may, in his or her discretion, grant to the applicant a certificate in writing:

(a) approving that alteration or addition;

(b) stating that if, within the period of 12 months after the grant of the certificate, the alteration or addition so approved is completed in accordance with the specifications (if any) set out in the certificate and the applicant applies under subsection 9(1) of this Act for the Minister to alter the conditions applicable to the nursing home by substituting for the number of beds determined in relation to the nursing home for the purposes of paragraph 4(6)(a) of this Act a number of beds not exceeding such other number as is specified in the certificate, that last‑mentioned application will not be refused; and

(c) in a case where the Minister considers it appropriate to do so—stating that if the Minister so alters the conditions applicable to the nursing home, the admission of persons to the nursing home as qualified nursing home patients (whether or not those patients occupy the beds to which the alteration or addition relates) will be in accordance with a special purpose of the nursing home specified in the certificate.

(3A) After the commencement of this subsection, the Minister shall not give a certificate under subsection (2) or (3).

(4) Upon application in writing by the holder of a certificate in force under subsection (2) or (3), the Minister may, in his or her discretion, vary the certificate:

(a) by deleting the period specified in the certificate (including a period substituted by virtue of a previous application or applications of this subsection) and substituting such longer period as he or she determines;

(b) by deleting the number of beds specified in the certificate (including a number substituted by virtue of a previous application or applications of this subsection) and substituting such other number as he or she determines;

(c) if specifications are set out in the certificate (including specifications substituted by virtue of a previous application or applications of this subsection)—by deleting those specifications and, if the Minister considers it appropriate to do so, by substituting such other specifications as he or she determines; or

(d) if a special purpose is specified in the certificate (including a special purpose substituted by virtue of a previous application or applications of this subsection)—by deleting that special purpose and, if the Minister considers it appropriate to do so, by substituting such other special purpose as he or she determines.

(4A) Where the Minister, pursuant to paragraph (2)(b) or (3)(b), specifies a number of beds in a certificate granted under subsection (2) or (3), the Minister may determine, in writing, that such number of those beds as is specified in the determination are approved in relation to a particular special needs group or particular special needs groups.

(4B) The Minister may, at any time, on application in writing by the holder of a certificate in force under subsection (2) or (3) or otherwise, revoke or vary a determination made under subsection (4A) in relation to the certificate.

(5) The Minister, in exercising his or her powers under subsection (2), (3), (4), (4A) or (4B), shall comply with any relevant principles in force under subsection (6).

(6) The Minister may, by instrument in writing, formulate principles to be complied with by him or her with respect to any of his or her powers under subsections (2), (3), (4), (4A) and (4B).

(7) In formulating principles under subsection (6), the Minister shall have regard to all matters he or she considers relevant, including, but without limiting the generality of the foregoing:

(a) the suitability of an applicant for a certificate under subsection (2) to be the proprietor of an approved nursing home;

(b) the need to control unnecessary growth in the numbers of approved nursing homes; and

(c) the availability of forms of care other than nursing home care within the meaning of this Act or the National Health Act 1953, including domiciliary and day care and care provided by hostels, hospitals and other institutions and by community services.

(8) A matter shall not be taken not to be a relevant matter for the purposes of subsection (7) by reason only that it is not connected with a matter of a kind referred to in paragraph 4(3)(b) of this Act or in paragraph 40AA(3)(b) of the National Health Act 1953.

(9) An application under subsection (2), (3) or (4) shall be accompanied by such further information and documents (if any) as are specified by the Minister in writing.

(10) A certificate under this section comes into force on the day on which it is granted and remains in force until the expiration of the period specified in the certificate.

(11) Upon application in writing by the holder of a certificate in force under this section, the Minister shall revoke the certificate.

(12) Where the Minister makes a decision under subsection (2), (3), (4), (4A) or (4B), the Minister shall publish a notice in the Gazette that sets out such particulars in relation to the decision as the Minister considers to be appropriate.

(13) Where the Minister makes a decision under subsection (2), (3), (4), (4A) or (4B) refusing, or otherwise than in accordance with, an application, the Minister shall give the applicant notice in writing of the decision.

(14) Without limiting the generality of the special purposes that may be specified under this section, a purpose so specified may make provision for a quota or quotas of patients of a particular kind or kinds.

4 Approval of nursing home

(1) The proprietor of a nursing home to which this Act applies may make application, in accordance with the authorized form, for approval of the premises occupied by the nursing home as an approved nursing home for the purposes of this Act.

(2) Subject to subsections (3), (3A), (3B) and (4), where:

(a) an application is made under subsection (1); and

(b) the Minister is satisfied that the premises to which the application relates are a nursing home;

the Minister shall approve the premises as a nursing home for the purposes of this Act.

(3) Where:

(a) application is made for approval of premises as an approved nursing home; and

(b) the Minister is of the opinion that approved nursing homes (including premises proposed to be approved as nursing homes under this Act) and premises approved, or proposed to be approved, as nursing homes under the National Health Act 1953 in the locality in which the premises to which the application relates are situated make adequate provision for nursing home care in that locality;

the Minister may refuse the application unless the applicant is the holder of a certificate in force under subsection 3A(2) that relates to the premises and the Minister is satisfied that the premises comply with any specifications set out in the certificate.

(3A) Where application is made under subsection (1) for approval of premises as an approved nursing home and:

(a) the applicant is not the holder of a certificate in force under subsection 3A(2) that relates to the premises; or

(b) the applicant is the holder of a certificate in force under subsection 3A(2) that relates to the premises but the Minister is not satisfied that the premises comply with any specifications set out in the certificate;

the Minister may refuse the application.

(3B) The Minister, in exercising his or her powers under subsection (3A) to refuse an application for approval of premises as an approved nursing home, shall comply with any relevant principles in force under subsection (3C).

(3C) The Minister may, by instrument in writing, formulate principles to be complied with by him or her with respect to his powers under subsection (3A) to refuse an application for approval of premises as an approved nursing home.

(3D) In formulating principles under subsection (3C), the Minister shall have regard to all matters he or she considers relevant, including, but without limiting the generality of the foregoing:

(a) the suitability of an applicant under subsection (1) to be the proprietor of an approved nursing home;

(b) the need to control unnecessary growth in the numbers of approved nursing homes; and

(c) the availability of forms of care other than nursing home care within the meaning of this Act or the National Health Act 1953, including domiciliary and day care provided by hostels, hospitals and other institutions and by community services.

(4) Where:

(a) the approval of premises as a nursing home has been revoked under section 11 of this Act or under subsection 44(2) of the National Health Act 1953‑1972 or of that Act as subsequently amended on a ground related to a failure to comply with a condition applicable to the nursing home; and

(b) the person who was the proprietor of the nursing home at any time when the condition was not complied with applies for approval of those premises, or of any other premises, as a nursing home;

the Minister may refuse the application.

(5) If the Minister does not grant an approval in accordance with an application under this section, he or she shall refuse the application and notify the applicant, in writing, accordingly.

(6) The approval of premises under this section as an approved nursing home is subject to the following conditions:

(a) a condition that the number of beds available for qualified nursing home patients will not at any time exceed such number of beds as is determined from time to time by the Minister as the approved number of beds in relation to the nursing home and that no alterations of, or addition to, the premises the purpose of which is, or the effect of which will be, to enable the number of beds in the nursing home for qualified nursing home patients to be increased will be commenced unless the proprietor of the nursing home is the holder of a certificate in force under subsection 3A(3) approving those alterations or additions;

(aa) a condition that, where the Minister determines, in writing, that the admission of persons to the nursing home as qualified nursing home patients is to be in accordance with a special purpose of the nursing home specified in the determination, the operations of the nursing home are to be carried out in a manner consistent with that determination;

(b) a condition that a person will not be admitted to the nursing home as a qualified nursing home patient unless the admission of the person to a nursing home has been approved by the Minister under section 40AB of the National Health Act 1953‑1974;

(i) ensuring that the needs of qualified nursing home patients in the nursing home are satisfactorily provided for;

(ia) ensuring that, to the extent that the principles and objectives formulated by the Minister under section 5 of the Disability Services Act 1986 are applicable in relation to the provision to qualified nursing home patients in the nursing home of:

(A) nursing home care; or

(B) any services that, as specified in the agreement entered into under section 15 by the Commonwealth with the proprietor of the nursing home, are to be provided for qualified nursing home patients in the nursing home;

that care and those services are provided in a manner that furthers those principles and objectives; or

(ii) otherwise protecting the welfare and interests of qualified nursing home patients in the nursing home.

(6AA) Where, immediately before the date on which application was made for approval of premises as an approved nursing home, the proprietor of the nursing home was the holder of a certificate in force under subsection 3A(2) in relation to the nursing home, the Minister shall not exercise the powers under paragraph (6)(aa) to determine a special purpose in relation to the nursing home in a manner inconsistent with that certificate.

(6AB) Where the Minister, under paragraph (6)(a), determines, or has at any time determined, the approved number of beds in relation to a nursing home, the Minister may determine, in writing, that such number of those beds as is specified in the second determination are approved in relation to a particular special needs group or particular special needs groups.

(6AC) The Minister may, on application in writing made by the proprietor of a nursing home or otherwise, revoke or vary a determination made under subsection (6AB) in relation to the nursing home.

(6A) Without limiting the generality of subparagraph (6)(c)(ii), conditions determined under paragraph (6)(c) by virtue of that subparagraph may include conditions relating to the liability of the proprietor of a nursing home and other persons for any loss, injury or damage incurred or suffered by qualified nursing home patients in the nursing home.

(6B) Where, immediately before the date on which application was made for approval of premises as an approved nursing home, the proprietor of the nursing home was the holder of a certificate in force under subsection 3A(2) in relation to the nursing home, the Minister shall not exercise his or her powers under paragraph (6)(a) to determine a number of beds in relation to the nursing home in a manner inconsistent with that certificate.

(7) Where:

(a) a person is admitted to an approved nursing home as a qualified nursing home patient without the approval referred to in paragraph (6)(b) being obtained prior to the admission; and

(b) the Minister is satisfied:

(i) that the circumstances of the admission were such that it was not practicable for the prior approval to be sought; and

(ii) that, if application for approval had been made under section 40AB of the National Health Act 1953‑1974 at or before the time of the admission, the application would have been approved;

the Minister shall approve the admission but, if not so satisfied, shall refuse to approve the admission and, in either case, shall notify the person, in writing, accordingly.

(8) An approval under subsection (7) has effect, for the purposes of this Act, as if it had been given under section 40AB of the National Health Act 1953‑1974 before the admission.

(9) Without limiting the generality of directions that may be given under section 35 to a delegate of a power under subsection (7) of this section, such a direction may make provision:

(a) requiring the delegate to exercise his or her delegated powers in accordance with the views of a group of persons;

(b) for the manner in which that group is to be constituted; and

(10) Where the Minister grants under this section an approval of premises as an approved nursing home, he or she shall determine the period, which may be a period commencing before the date on which he or she grants the approval but not before the date as from which the agreement entered into between the Commonwealth and the proprietor of the nursing home for the purposes of this Act is to operate, in respect of which the approval shall, subject to this Act, be in force.

(11) Where premises that are an approved nursing home under this Act are subsequently approved as an approved nursing home under the National Health Act 1953‑1974, the approval of the premises under this Act shall be deemed to be revoked on the date as from which the approval of the premises under that last‑mentioned Act has effect.

(12) Where premises are approved as an approved nursing home under this Act as from a date earlier than the date on which the approval is granted:

(a) if a person has paid to the proprietor of the approved nursing home, in respect of nursing home care and other services provided by the proprietor of the nursing home for a qualified nursing home patient during the period that commenced on that first‑mentioned date and ended on that second‑mentioned date, charges that exceed the charges payable in respect of that care and those services in accordance with the agreement entered into by the Commonwealth and the proprietor of the nursing home for the purposes of this Act—the proprietor is liable to pay to the person an amount equal to the excess; and

(b) if the nursing home was, immediately before the approval was granted, approved as an approved nursing home under the National Health Act 1953‑1974:

(i) any moneys paid or payable to the proprietor of the nursing home under that Act in respect of the period referred to in paragraph (a) shall be deemed to be moneys advanced to the proprietor by the Commonwealth under the agreement entered into between the proprietor and the Commonwealth for the purposes of this Act in relation to the nursing home.

(13) Subject to subsection (14), the Minister shall not, after the commencement of this subsection, grant an approval under this section.

(14) The Minister may, not later than 30 June 1992, on application made under subsection (1), grant an approval under this section if:

(a) the applicant is the holder of a certificate in force under section 3A in respect of the premises to which the application relates; or

(b) the application relates to premises in respect of which an approval previously granted under this section is in force at the time when the application is made.

(15) After the commencement of this subsection, the Minister may not determine under subsection (10) a period ending after 30 June 1992.

(16) If, before the commencement of this subsection, the Minister had determined under subsection (10) a period ending after 30 June 1992, the period so determined shall, for the purposes of this Act, be taken to be a period ending at the end of 30 June 1992.

5 Application of National Health Act

(1) For the purposes of this Act:

(a) section 40AB of the National Health Act 1953‑1974 has effect on and after 1 January 1975 as if references in that section to an approved nursing home were references to a nursing home approved under Part V of that Act or under this Act, as if the reference in subsection (4AA) of that section to a determination by the Minister for the purposes of paragraph 40AA(6)(aa) of that Act were a reference to a determination by the Minister for the purposes of paragraph 4(6)(aa) of this Act, as if the reference in subsection (4AA) of that section to paragraph 39A(3)(b) of that Act were a reference to paragraph 3A(3)(b) of this Act and as if the reference in subsection (4AA) of that section to a certificate in force under section 39A of that Act were a reference to a certificate in force under section 3A of this Act;

(ab) section 40AB of the National Health Act 1953 has also effect after the commencement of this paragraph as if:

(i) any reference in subsections (2) and (3) to a person’s needing or requiring nursing care by reason of infirmity or illness, disease, incapacity or disability were a reference to that person’s needing or requiring nursing care or personal care by reason of that person’s condition as a disabled person; and

(ii) subsection (4) were omitted and the following subsection substituted:

“(4) The Minister shall not approve an application under subsection (3) on behalf of a patient if the Minister is satisfied that:

(a) having regard to the medical condition of the patient and to any other relevant circumstances, the needs of the patient would be adequately, and more suitably, provided for in a place other than an approved nursing home; and

(b) accommodation in such a place is available to the patient”; and

(b) an approval under section 40AB of the National Health Act 1953‑1974 for the admission of a person to an approved nursing home, being an approval that is in force on 1 January 1975 or is given on or after that date, has effect as if it were an approval for the admission of the person to whom the application relates to a nursing home approved under Part V of that Act or approved under this Act.

(3) Where premises that are an approved nursing home under the National Health Act 1953‑1974 are subsequently approved as an approved nursing home under this Act, the approval of the premises under that first‑mentioned Act shall be deemed to be revoked on the date as from which the approval under this Act has effect.

6 Approval of additional services

(1) The proprietor of a nursing home to which this Act applies may apply, in accordance with the authorized form, for approval for this Act to apply in relation to specified services provided, or proposed to be provided, for a specified class of persons by the proprietor at the nursing home or other specified premises, or at the nursing home and other specified premises, in association with the provision of nursing home care at the nursing home.

(2) Where application is made under subsection (1) and the Minister is satisfied:

(a) that the proprietor of the nursing home is able to provide, in association with the provision of nursing home care at the home, adequate services of the kind specified in the application for the class of persons so specified; and

(b) that the premises or each of the premises at which the services are being or are to be provided are or will be adequately fitted, furnished and staffed for the purposes of providing those services;

the Minister, shall, except as provided in subsection (3) and subject to subsection (3A), approve the application but, if not so satisfied, shall refuse to approve the application and, in either case, shall notify the applicant, in writing, accordingly.

(3) Where application is made under subsection (1) for approval for this Act to apply in relation to services that the applicant is providing or proposes to provide for a class of persons at particular premises and the Minister is satisfied that the services of that kind available for that class of persons in the locality in which those premises are situated (being services made available by persons or bodies other than the applicant) together with the services of that kind in relation to which the Minister proposes to approve the application of this Act (being services that are proposed to be made available by persons or bodies other than the applicant) will be adequate to meet the needs of that class of persons, the Minister may refuse to approve the application unless the applicant has, within a period of 12 months, or within such longer period as the Minister allowed, before the making of the application, informed the Minister, in writing, that the applicant proposed to make the application and the Minister had informed the applicant, in writing, that the application would not be refused.

(3A) Subject to subsections (3B) and (3C), the Minister shall not, on or after 21 August 1985, approve an application made under subsection (1).

(3B) The Minister may, on or after 21 August 1985, approve an application made under subsection (1) if the Minister had, before that date, informed the applicant under subsection (3) that the application would not be refused.

(3C) The Minister may, on or after 21 August 1985, approve an application made under subsection (1) by a proprietor of a nursing home in relation to particular services in relation to a particular class of persons in relation to particular premises if there was in force immediately before that day, or there is in force at any time on or after that day, an approval under subsection (2) in relation to a proprietor of the nursing home in relation to those services in relation to that class of persons in relation to those premises.

(4) An approval under subsection (2) for this Act to apply in relation to services is subject to the following conditions:

(a) a condition that this Act will apply only to the provision of those services for persons included in such class of persons as is determined from time to time by the Minister; and

(b) any other conditions determined by the Minister for the purpose of ensuring:

(i) that the needs of persons of that class who seek the services are satisfactorily provided for; or

(ii) that, to the extent that the principles and objectives formulated by the Minister under section 5 of the Disability Services Act 1986 are applicable to the provision of those services for persons of that class, the services are provided in a manner that furthers those principles and objectives.

(5) A class of persons determined in relation to services provided by the proprietor of an approved nursing home shall not be constituted solely by, but may include, the persons who are qualified nursing home patients at the nursing home.

(6) Where the Minister approves an application under this section by the proprietor of a nursing home, he or she shall determine the period, which may be a period commencing before the date on which he or she grants the approval but not before the date as from which the agreement entered into between the Commonwealth and that proprietor for the purposes of this Act is to operate, in respect of which the approval shall, subject to this Act, be in force.

(7) At the end of 30 June 1992, any approval then in force under this section ceases to be in force.

7 Inspection of premises and provision of information

Where an application is made under section 4 or 6, the Minister may request the applicant:

(a) to permit a person authorized by the Secretary to inspect the premises to which the application relates at any reasonable time; or

(b) to furnish specified particulars of matters related to:

(i) in the case of an application under section 4—the carrying on of the nursing home; or

(ii) in the case of an application under section 6—the provision of the services to which the application relates;

and may defer consideration of the application until the premises have been so inspected or the particulars have been furnished, as the case requires.

8 Certificate of approval

(1) Where the Minister approves premises as a nursing home, the Minister shall cause to be issued to the proprietor of the nursing home a certificate of approval in accordance with the authorized form, being a certificate that specifies the conditions applicable to the nursing home.

(2) Where the Minister approves, under section 6, the application of this Act in relation to the provision of services at premises by the proprietor of a nursing home for a class of persons, the Minister shall cause to be issued to the proprietor a certificate of approval in relation to those premises or certificates of approval in relation to each of those premises, in accordance with the authorized form, being a certificate that specifies, or certificates that specify, the conditions applicable to the application of this Act in relation to the provision of the services.

(3) The proprietor of an approved nursing home shall cause:

(a) the certificate of approval in respect of the nursing home to be displayed in a prominent position in the nursing home; and

(b) the certificate of approval relating to approved services provided at premises to be displayed in a prominent position in the premises.

Penalty: $40.

(4) Where the proprietor of an approved nursing home applies to the Minister for revocation of the approval of the home or of the approval relating to approved services, he or she shall forward the relevant certificate or certificates of approval with the application.

Penalty: $40.

(5) Where the approval of a nursing home, or the approval relating to approved services provided by the proprietor of a nursing home, is revoked or expires, the proprietor of the home shall forward the relevant certificate or certificates of approval to the Minister.

Penalty: $40.

(6) A certificate of approval shall specify the period in respect of which the approval is to be in force.

(7) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

9 Alteration of conditions applicable to a nursing home

(1) The Minister may, at any time, on application in writing made under this subsection by the proprietor of a nursing home, alter the conditions applicable to the nursing home by substituting for the number of beds determined in relation to the nursing home for the purposes of paragraph 4(6)(a) such other number as is determined by the Minister.

(1A) Where the Minister is satisfied that the average rate of utilization, by qualified nursing home patients, of the number of beds determined in relation to a nursing home for the purposes of paragraph 4(6)(a) is less than such rate as he or she determines to be the minimum rate in relation to the nursing home, the Minister may, at any time, on application in writing made under this subsection by the proprietor of the nursing home or otherwise, alter the conditions applicable to the nursing home by substituting for the number of beds determined in relation to the nursing home for the purposes of paragraph 4(6)(a) such lesser number as is determined by the Minister.

(1AA) The Minister may, at any time, on application in writing by the proprietor of a nursing home or otherwise, alter the conditions applicable to the nursing home by determining conditions in relation to the nursing home for the purposes of paragraph 4(6)(aa) or by revoking or varying any conditions previously determined by the Minister in relation to the nursing home for the purposes of that paragraph.

(1AB) Where the Minister, under subsection (1) or (1A), determines, or has at any time determined, a number of beds in relation to a nursing home, the Minister may determine, in writing, that such number of those beds as is specified in the second determination are approved in relation to a particular special needs group or particular special needs groups.

(1B) The Minister may, at any time, on application in writing made under this subsection by the proprietor of a nursing home or otherwise, alter the conditions applicable to the approval that relates to approved services to be provided by the proprietor of the nursing home:

(a) by substituting for the approved class of persons to whom the approval of those services relates such other class of persons as is determined by the Minister; or

(b) by determining conditions in relation to the approval under paragraph 6(4)(b) or by revoking or varying any condition previously determined by him or her in relation to that approval under that subsection.

(1C) The Minister may, at any time, on application in writing made under this subsection by the proprietor of a nursing home or otherwise, alter the conditions applicable to the nursing home by determining conditions in relation to the nursing home under paragraph 4(6)(c) or by revoking or varying any conditions previously determined by him or her in relation to the nursing home under that paragraph.

(1CA) If the applicant referred to in subsection (1) of this section is the holder of a certificate in force under subsection 3A(3), the Minister shall not exercise his or her powers under subsection (1) in a manner inconsistent with that certificate.

(1CB) The Minister shall not exercise a power under subsection (1AA) in relation to a nursing home in a manner inconsistent with:

(a) a certificate in force in respect of the home under subsection 3A(2) or (3) and containing a statement for the purpose of paragraph 3A(2)(c) or(3)(c); or

(b) a determination in force in relation to the home under subsection (1AB) or subsection 4(6AB).

(1D) Where:

(a) the proprietor of an approved nursing home applies under this section to the Minister for the Minister to alter the conditions applicable to the nursing home, or to approved services provided by the proprietor;

(b) the applicant informs the Minister, in writing, after the expiration of the period of 2 months after the day on which the application was made, that the applicant elects to apply this subsection to the application; and

(c) the Minister has neither altered the conditions, whether in accordance with the application or otherwise, nor refused the application, before being so informed;

the Minister shall, upon being so informed, be deemed to have refused the application.

(1E) Where the Minister makes a decision under this section refusing an application, he or she shall cause to be served on the applicant, either personally or by post, a notice in writing setting out that decision.

(2) Where, whether under this section or by virtue of the operation of law, the conditions applicable to an approved nursing home, or to an approval that relates to approved services provided at premises by the proprietor of a nursing home, are altered, the Minister shall cause to be issued to the proprietor of the nursing home, in place of the certificate of approval in force under this Act in relation to the nursing home or to the approved services provided at those premises, a new certificate of approval, in accordance with the authorized form, specifying:

(a) the conditions as so altered; and

(b) the date on and from which those altered conditions have effect.

(2A) A certificate of approval issued under subsection (2) shall be accompanied by a notice setting out the effect of subsection (3).

(3) Where a new certificate of approval is issued to the proprietor of a nursing home under subsection (2) in relation to the nursing home or to premises at which he or she is providing approved services, the proprietor shall forward the certificate of approval previously issued to him or her in relation to the nursing home or premises to the Minister.

Penalty for an offence against this subsection: $40.

(4) An offence under subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

11 Variation or revocation of approval

(1) The Minister may, at any time, review the approval of a nursing home, or an approval under section 6, that is then in force under this Act.

(2) If the Minister considers that the nature of an approved nursing home or of approved services to which an approval under section 6 relates has changed since the approval under review was given or was deemed to have been given, or that a condition applicable to an approved nursing home or to approved services has not been complied with, he or she may vary the nature of the approval or revoke the approval as he or she considers justified in the circumstances of the case.

(3) Upon receipt of:

(a) an application in writing by the proprietor of an approved nursing home for revocation of the approval of the home or of the approval applicable to approved services provided by the proprietor, or both; or

(b) a notice in writing given in accordance with section 30 in respect of an approved nursing home;

the Minister may revoke the approval of the nursing home or the approval applicable to those approved services, or both.

11AA Automatic revocation of approval of certain nursing homes

(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 nursing home means a nursing home whose name and address is specified in Column 2 of an item in the Schedule, being the nursing home to which the certificate of approval issued by the Minister under subsection 8(1) and bearing the approval number specified in Column 4 of that item relates.

(3) If the provisions (other than subclauses 1(1) and (2)) of the Commonwealth/State Disability Agreement come into force in respect of a State in which a scheduled nursing home is situated on a day (in this subsection called the effective day) earlier than 1 July 1992, the approval of the scheduled nursing home (unless sooner revoked) is, by force of this subsection, revoked immediately before the effective day.

11A Review of decisions

(1) In this section:

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

reviewable decision means a decision of the Minister, or of a delegate of the Minister, under subsection 4(7), section 6, subsection 9(1A) or (1B), section 11 or subsection (2) of this subsection.

(2) A person affected by a reviewable decision who is dissatisfied with the decision may, by notice in writing given to the Minister within the period of 28 days after the day on which the decision first comes to the notice of the person, or within such further period as the Minister (either before or after the expiration of that period), by notice in writing served, either personally or by post, on the person, allows, request the Minister to reconsider the decision.

(3) There shall be set out in the request the reasons for making the request.

(4) Upon the receipt of the request, the Minister shall reconsider the decision and may affirm or revoke the decision or vary the decision in such manner as he or she thinks fit.

(5) Where the Minister does not affirm, revoke or vary a decision before the expiration of the period of 42 days after the day on which he or she received the request under subsection (2) to reconsider the decision, he or she shall, upon the expiration of that period, be deemed to have affirmed the decision under subsection (4).

(6) Where the Minister affirms, revokes or varies a decision, he or she shall, by notice in writing served, either personally or by post, on the person who made the request, inform the person of the result of his or her reconsideration of the decision, set out the findings on material questions of fact, refer to the evidence or other material on which those findings were based and give his or her reasons for affirming, revoking or varying the decision, as the case may be.

(7) Applications may be made to the Administrative Appeals Tribunal for review of:

(a) reviewable decisions that have been affirmed or varied under subsection (4); or

(b) a decision under subsection (4) to revoke a reviewable decision.

11B Statements to accompany notification of decisions

(1) Where a reviewable decision within the meaning of section 11A is made and notice in writing of the decision is given to a person affected by the decision, that notice shall include a statement to the effect that:

(a) the person may, if he or she is dissatisfied with the decision, seek a reconsideration of the decision by the Minister in accordance with subsection 11A(2); and

(b) a person whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if he or she is dissatisfied with a decision made by the Minister upon that reconsideration affirming, revoking or varying the first‑mentioned decision, make application to the Administrative Appeals Tribunal for review of the decision so affirmed or varied or of the decision so to revoke.

(2) Where the Minister affirms, revokes or varies a decision under subsection 11A(4) and gives to a person notice in writing of the affirmation, revocation or variation of the decision, that notice shall include a statement to the effect that a person whose interests are affected by the decision may, subject to the Administrative Appeals Tribunal Act 1975, if he or she is dissatisfied with the decision so affirmed or varied or with the decision so to revoke, make application to the Administrative Appeals Tribunal for review of the decision.

(3) Any failure to comply with the requirements of subsection (1) or (2) in relation to a decision shall not be taken to affect the validity of the decision.

11C Inspection of, and of records of, approved nursing homes

(1) A person authorized in writing by the Minister to act under this section may:

(a) at any time, enter and inspect premises occupied by an approved nursing home; and

(b) at any reasonable time:

(i) enter and inspect premises in respect of which an application for approval as an approved nursing home has been made; or

(ii) inspect, make copies of, or take extracts from, any books, documents or records on premises occupied by an approved nursing home that relate to the operation of those premises as a nursing home, including, but without limiting the generality of the foregoing, any books, documents or records kept by the proprietor of the nursing home in accordance with a condition determined under paragraph 4(6)(c) or 6(4)(b).

(2) The occupier of premises referred to in subsection (1) shall provide the authorized person with all reasonable facilities and assistance for the effective exercise of his or her powers under this section.

Penalty: $1,000.

12 Common form of nursing home agreement

(1A) In this section:

adjusted deficit, in relation to the proprietor of an approved nursing home, in respect of a year or any other period, means the amount obtained by deducting from the amount that, under subsection (4), is the approved deficit of the proprietor in respect of that year or other period any approved expenditure by the proprietor in respect of that year or other period that is of one of the following kinds:

(a) expenditure on the replacement of an asset of the nursing home exceeding $1,200 in value;

(b) expenditure exceeding $1,200 on repairs, or maintenance work, carried out on an asset of the nursing home;

(c) contributions paid to a superannuation scheme on behalf of persons employed by the proprietor for the purposes of the nursing home;

(d) payments in respect of long service leave entitlements of persons referred to in paragraph (c).

approved expenditure, in relation to the proprietor of a nursing home, means expenditure in accordance with particulars of expenditure or expected expenditure approved by the Secretary under the agreement relating to the nursing home entered into with the proprietor under section 15.

relevant association means an association that:

(a) represents eligible organisations; and

(b) is specified by the Minister by notice in writing published in the Gazette as a relevant association for the purposes of this section.

(1) The Minister may, after consultation with the relevant associations, approve a form of agreement to be entered into by the Commonwealth and any proprietor of a nursing home with respect to the provision by the Commonwealth of financial assistance:

(a) in connexion with the carrying on of an approved nursing home by the proprietor; or

(b) in connexion with the carrying on of an approved nursing home by the proprietor and the provision by the proprietor, in association with the provision of nursing home care at the home, of approved services for approved classes of persons.

(2) Without limiting the generality of the matters that may be dealt with in a form of agreement approved under subsection (1), there shall be included in the form of agreement:

(a) provisions in accordance with which the Secretary may approve particulars of amounts expected to be received and of amounts expended or expected to be expended, during a year or other period approved by the Secretary, by the proprietor in connexion with:

(i) if the proprietor is providing, in association with the provision of nursing home care at the nursing home, approved services for an approved class of persons—the provision of nursing home care and other services specified in the agreement for qualified nursing home patients in the nursing home and the provision of those approved services for persons who are included in that class of persons; or

(ii) in any other case—the provision of nursing home care and other services specified in the agreement for qualified nursing home patients in the home;

(b) provisions for ascertaining the approved deficit (if any) of the proprietor in respect of a year or other period referred to in paragraph (a);

(c) provisions under which, and subject to which, the Commonwealth will be liable to pay to the proprietor an amount equal to the approved deficit of the proprietor in respect of a year or other period referred to in paragraph (a);

(d) provision for the making by the Commonwealth to the proprietor of advances on account of amounts that may become payable to him or her under the agreement and the deduction of amounts so advanced from amounts that become so payable;

(e) provisions under which the agreement will apply in relation to a particular nursing home only in respect of a period during which the home is an approved nursing home;

(f) provisions under which the agreement will apply in relation to services provided by the proprietor as set out in section 6 only in respect of a period during which the services are approved services;

(g) provisions under which a person authorized by the Secretary may inspect, at any reasonable time, an approved nursing home carried on by the proprietor and premises that are approved premises in relation to the proprietor for the purpose of ascertaining whether the conditions applicable to the approvals are being complied with;

(h) provisions under which a person authorized by the Secretary may inspect, at any reasonable time, the books, accounts and records relating to an approved nursing home carried on by the proprietor and the provision of approved services provided by the proprietor and may take copies of, or extracts from, those books, accounts and records;

(j) provisions in accordance with which either party to the agreement may terminate the agreement, including provisions with respect to the recovery by such a party of any amount due to that party upon the termination of the agreement; and

(k) such other provisions as are required under this Act to be included in the form of agreement.

(3) The form of agreement approved by the Minister under subsection (1) shall also include provisions allowing the recovery by the Commonwealth of the amount by which the sum of the advances made to the proprietor of a nursing home who is a party to the agreement exceeds at any time the sum of the amounts paid or payable to that proprietor in accordance with the agreement at that time.

(4) For the purposes of this Act, the approved deficit of the proprietor of an approved nursing home in respect of a year or other period is, if subsection (4A) does not apply, the amount by which the expenditure by the proprietor in respect of the period in connexion with the provision of nursing home care and other services (including approved services) referred to in subparagraph (2)(a)(i) or (ii), as the case requires, being expenditure in accordance with the particulars of expenditure or expected expenditure during the period approved by the Secretary under the relevant agreement, exceeds the sum of the amounts that are, under the relevant agreement, to be treated as having been received by the proprietor in connexion with the provision of that nursing home care and of those other services in respect of that period.

(4A) If the adjusted deficit of the proprietor of a nursing home in respect of a year, or other period, ending after 30 June 1989 is more than the amount that, under subsection (4B), is the prescribed amount in relation to the proprietor in respect of that year or period:

(a) the amount of the difference between that adjusted deficit and that prescribed amount shall be deducted from the amount that, under subsection (4), is the approved deficit of the proprietor in respect of that year or period; and

(b) the amount obtained shall, for the purposes of this Act, be taken to be the approved deficit of the proprietor in respect of that year or period.

(4B) The prescribed amount in relation to the proprietor of an approved nursing home in respect of a year, or other period, ending after 30 June 1989 (in this subsection called the later year and later period respectively) is:

(a) if the average number of beds occupied per day by qualified nursing home patients in the nursing home during the later year or later period is less than the average number of beds occupied per day by qualified nursing home patients in the nursing home during the year, or (if applicable) other period approved by the Secretary under paragraph (2)(a), ending on 30 June 1989:

(i) the amount calculated by using the formula:

where:

AD is the adjusted deficit of the proprietor in respect of the year, or other period, ending on 30 June 1989;

EAS is so much of the approved expenditure of the proprietor on the provision of approved services at the nursing home in respect of the year, or other period, ending on 30 June 1989 that is not expenditure of a kind referred to in paragraphs (a), (b), (c) and (d) of the definition of adjusted deficit in subsection (1A);

ANB1 is the average number of beds occupied per day by qualified nursing home patients in the nursing home during the year, or other period, ending on 30 June 1989; and

ANB2 is the average number of beds occupied per day by qualified nursing home patients in the nursing home during the later year or later period; or

(ii) if a determination under subsection (4C) is in force—the amount calculated under subparagraph (i) increased in the manner set out in the determination; or

(b) if paragraph (a) does not apply:

(i) the amount equal to the adjusted deficit of the proprietor in respect of the year, or (if applicable) other period approved by the Secretary under paragraph (2)(a), ending on 30 June 1989; or

(ii) if a determination under subsection (4C) is in force—the amount referred to in subparagraph (i) increased in the manner set out in the determination.

(4C) If the Minister, having regard to relevant economic indicators, is satisfied that prescribed amounts under subsection (4B) in respect of a year, or other period, ending after 30 June 1989 should be higher than amounts obtained under subparagraph (4B)(a)(i) or (b)(i), the Minister may, by written notice, determine that, in determining prescribed amounts under subsection (4B) in respect of that year or other period, any amount obtained under either of those subparagraphs should be increased in the manner set out in the determination.

(5) After consultation as provided in subsection (1), a form of agreement approved by the Minister under that subsection may be varied, or the approval of such a form may be terminated, by the Minister at any time.

13 Fees

(1) The form of agreement between the Commonwealth and the proprietor of a nursing home approved by the Minister under subsection 12(1) shall include provisions under which the proprietor of the home is required to charge a fee, in respect of the nursing home care and other services specified in the agreement provided for a qualified nursing home patient in the nursing home:

(a) if a succeeding paragraph does not apply in relation to the patient—at the rate of $32 per week or at such other rate as is determined by the Minister;

(b) if the patient is entitled to be provided with medical treatment in respect of incapacity due to war service in accordance with a determination made by a Deputy Commissioner of Repatriation—at such rate per week as the patient is liable to pay for nursing home care in accordance with the conditions determined by the Repatriation Commission in relation to the provision of medical treatment for him or her in respect of his or her incapacity;

(c) if the Secretary is satisfied that, by reason of special circumstances, the person responsible for the payment of the fee ought to pay a fee at a rate less than the rate referred to in paragraph (a)—at such lower rate as the Secretary approves; or

(d) if the patient has received or established his or her right to receive, or at the time at which payment of the fee is due it appears to the proprietor that the patient may be entitled to receive, in respect of the nursing home care to which the fee relates, a payment by way of compensation or damages (including a payment in settlement of a claim for compensation or damages) under the law of the Commonwealth or of a State or Territory—at the rate applicable to the patient in accordance with the rate determined by the Minister.

(1A) A determination by the Minister under subsection (1) shall be made by notice in writing.

(2) The form of agreement between the Commonwealth and the proprietor of a nursing home approved by the Minister under subsection 12(1) shall also include provisions:

(a) under which the proprietor shall not charge any fee in respect of the provision of any approved services provided by him or her for persons included in the approved class of persons; and

(b) under which the Secretary may determine that the whole or a part of a payment that a patient has received or is entitled to receive in settlement of a claim for compensation or damages shall be regarded as being in respect of the nursing home care of the patient during a period specified in the determination.

14 Appeals

(1) The form of agreement between the Commonwealth and the proprietor of a nursing home approved by the Minister under subsection 12(1) shall contain provisions in accordance with which the Minister shall, upon request by the proprietor, review:

(a) the particulars of a kind referred to in paragraph 12(2)(a) approved by the Secretary in respect of the proprietor; or

(b) the amount determined by the Secretary to be the approved deficit of the proprietor in respect of a year or other period;

including provisions under which the Minister shall be required, before giving his or her decision with respect to the review, to obtain and consider the report of the Nursing Homes Advisory Committee for the State in which the nursing home is situated concerning the matters under review.

(2) For the purposes of this section:

(a) the Australian Capital Territory shall be deemed to be part of New South Wales; and

(b) the Northern Territory shall be deemed to be part of South Australia.

15 Agreement with proprietor of nursing home

(1) The Secretary may, on behalf of the Commonwealth, enter into an agreement, in accordance with the common form of agreement, with the proprietor of an approved nursing home or a nursing home in respect of which application has been made under subsection 4(1).

(2) In the event of a variation of the common form of agreement under section 12, an agreement entered into under subsection (1) of this section shall be deemed to be varied accordingly.

(3) In the event of the Minister terminating his or her approval of the common form of agreement, agreements under this section that were in force immediately before the termination of that approval shall remain in force unless and until a fresh form of agreement is approved under section 12 or the agreement is terminated in a manner provided for in the agreement.

(4) An agreement entered into by the proprietor of a nursing home under this section on or before 30 April 1975 may be expressed to apply to and in relation to:

(a) the carrying on of an approved nursing home by the proprietor; or

(b) the carrying on of an approved nursing home by the proprietor and the provision of approved services by the proprietor;

during a period that commenced before the date on which the agreement is entered into but not before 1 January 1975.

15A Request for review

(1) A request to the Minister for a review referred to in subsection 14(1):

(a) is to be made only on the appropriate authorised form; and

(b) is to be made within 42 days after the day on which notice of the Secretary’s decision is served on the proprietor of the nursing home.

(2) The request is to be taken not to have been made if the proprietor does not, in the request, authorise the deduction of:

(a) the lodgment fee of $500 or, if the Minister has, by notice, fixed another amount, that other amount; and

(b) the Committee processing fee;

from any amount or amounts payable to the proprietor under an agreement entered into under section 15 or under Part VA of the National Health Act 1953.

(3) Where a proprietor has, in a request, authorised the deduction of the lodgment fee payable by the proprietor from any such amount or amounts, the amount of the lodgment fee may be deducted accordingly.

(4) A notice under paragraph (2)(a) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

15B Request for review may be withdrawn

Where the proprietor of a nursing home has requested the Minister to review a decision, the request may, at any time before the Minister has confirmed or varied the decision, be withdrawn by notice in writing signed by the proprietor and lodged with the Secretary.

15C Refund of lodgment fee

(1) Where:

(a) a proprietor has requested the Minister to review a matter; and

(b) the lodgment fee has been deducted under subsection 15A(3) from any amount or amounts payable to the proprietor;

the lodgment fee is to be refunded to the proprietor if:

(c) the request is withdrawn under section 15B before the end of the period of 42 days after the last day on which such a request could have been made; or

(d) the decision is varied by the Minister in a manner wholly or substantially favourable to the proprietor.

(2) If, before the lodgment fee has been deducted under subsection 15A(3):

(a) the request is withdrawn under section 15B within the period referred to in paragraph (1)(c); or

(b) the decision is varied by the Minister in a manner that is wholly or substantially favourable to the proprietor;

the lodgment fee is not to be so deducted.

15D Referral of request to a Nursing Homes Advisory Committee

(1) Where a request for a review has not been withdrawn under section 15B, the Minister must, not earlier than the end of the period of 42 days after the last day on which such a request could have been made, refer the matter to the appropriate Nursing Homes Advisory Committee in accordance with the agreement under section 15.

(2) The Minister must not refer the matter to the Committee unless the proprietor has provided the Minister with:

(a) a statement setting out fully and in detail the reasons for the request; and

(b) a copy of such accounts, books, documents and records as are relevant to the review of the decision by the Minister; and

(3) The Minister may, by notice published in the Gazette, specify information or documents that are to be provided to the Minister for the purposes of a review.

(4) The Minister may, by notice in writing given to the proprietor, require the proprietor to supply to the Minister such further information or documents as the Minister considers necessary for the purpose of deciding the request and the Minister may refuse to refer the matter to the Committee until that information or those documents, as the case requires, are supplied to the Minister.

15E Report of Committee

Without limiting the generality of the matters that may be included in the report of the Committee, such a report is to contain a report of the days, and the hours in those days, during which the Committee met to examine the matter that is the subject of the report and is to specify the fee payable by the proprietor of the nursing home to which the report relates, being the fee calculated under section 15F.

15F Committee processing fee

(1) The amount of the Committee processing fee is to be:

(a) if the relevant period does not exceed 4 hours—the prescribed amount; or

(b) if the relevant period exceeds 4 hours:

(i) in respect of each period of 4 hours included in the relevant period—the prescribed amount; and

(ii) if the relevant period includes an additional period of less than 4 hours—the prescribed amount in respect of that additional period.

(2) The amount of the Committee processing fee is not to exceed $1,000 per day, or, if the Minister has, by notice, fixed another amount, that other amount.

(3) Where a proprietor has in a request for review, authorised the deduction of the Committee processing fee payable to the proprietor from any amount or amounts payable to the proprietor, the amount of the Committee processing fee may be deducted from the payment of any such amount or amounts.

(4) The Committee processing fee may be recovered by the Commonwealth in a court of competent jurisdiction as a debt due and payable to the Commonwealth.

(5) A notice referred to in subsection (2) and in the definition of prescribed amount in subsection (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(6) In this section:

prescribed amount means $500 or, if the Minister has, by notice, fixed another amount, that other amount.

relevant period means the period, or the aggregate of the periods, during which the Committee met to examine the matter that is the subject of the Committee’s report.

15G Ministerial review of decisions

The Minister must, after such investigation of the matter as the Minister considers necessary, either confirm or vary the decision of the Secretary, and advise the proprietor accordingly.

15H Refund of Committee processing fee etc.

Where:

(a) a proprietor has requested the Minister to review a decision; and

(b) the decision is varied in a manner that is wholly or substantially favourable to the proprietor;

then:

(c) if the Committee processing fee has been deducted under subsection 15F(3)—the fee must be refunded to the proprietor; and

(d) if the Committee processing fee has not been so deducted—the fee must not be deducted.

16 Nursing Homes Advisory Committee

(1) So far as is required for the purposes of this Act, there shall be for each State an advisory committee, called the Nursing Homes Advisory Committee for the State, which shall consist of:

(a) a Chairman; and

(b) 2 other members;

who shall be appointed by the Minister.

(2) Subject to this Act, a member of a committee holds office for a period of 3 years.

(3) An act or decision of a committee is not affected by reason only of there being a vacancy in the membership of the committee.

17 Functions of committee

The functions of the committee for a State are to inquire into, and report to the Minister concerning, any matter referred to the committee by the Minister in accordance with the agreement between the Commonwealth and the proprietor of an approved nursing home situated in the State.

18 Remuneration and allowances

(1) A member of a committee shall be paid such remuneration as is determined by the Remuneration Tribunal.

(2) A member of a committee shall be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973‑1974.

19 Resignation of member

A member of a committee may resign his or her office by writing under his or her hand delivered to the Minister.

20 Termination of appointment

The Minister may terminate the appointment of a member of a committee for misbehaviour or physical or mental incapacity.

21 Acting appointment

(1) Where the Chairman of a committee is, or is expected to be, unable (whether on account of illness or otherwise) to exercise the functions of his or her office, or there is a vacancy in the office of Chairman of a committee, the Minister may appoint a person to be acting Chairman during the absence or until the filling of the vacancy.

(2) If a member of a committee is at any time appointed acting Chairman of a committee, his or her office shall, during the period of his or her appointment, be deemed, for the purposes of subsection (3), to be vacant.

(3) Where a member of a committee other than the Chairman is, or is expected to be, unable (whether on account of illness or otherwise) to attend meetings or sittings of the committee, or there is a vacancy in the office of a member of a committee, the Minister may appoint a person to be an acting member during that absence or until the filling of the vacancy.

(4) The Minister may:

(a) determine the terms and conditions of appointment of a person appointed under this section; and

(b) at any time terminate such an appointment.

(5) A person appointed under subsection (1) to be acting Chairman, or a person appointed under subsection (3) to be an acting member of a committee, has all the powers and functions of the Chairman or of a member, as the case may be.

(6) The validity of any act of a committee shall not be called in question in any proceedings on a ground arising from the fact that the occasion for the appointment of a person purporting to be appointed under this section had not arisen or that an appointment under this section had ceased to have effect.

22 Meetings of committee

(1) The Chairman of a committee shall convene such meetings of the committee as are necessary for the efficient conduct of its affairs.

(2) The Chairman of a committee shall preside at all meetings of a committee at which he or she is present.

(3) In the event of the absence of the Chairman of a committee from a meeting of the committee, the members present shall elect one of its number to preside at the meeting during the absence of the Chairman, and the member so elected has and may exercise, during the absence of the Chairman, all the functions and powers of the Chairman.

(4) The quorum for a meeting of a committee is 2 members of the committee.

(5) A question arising at a meeting of a committee shall be decided by a majority of the votes of the members present and voting and, for that purpose, the member presiding shall have a deliberative vote only.

(6) In the event of an equality of votes on a question before a meeting of a committee, the question shall be deemed to be unresolved and the member presiding may direct that the question be reconsidered at a time and place to be fixed by the Chairman of the committee.

(7) A member shall not vote on a question before a committee unless he or she has been present for the whole of the time for which the committee received evidence on the matter concerning which the question arose.

(8) In subsection (3), a reference to the Chairman of a committee includes a reference to the acting Chairman of the committee.

(9) In this section, a reference to a meeting of a committee includes a reference to a sittings of a committee for the purposes of an inquiry by the committee under this Act.

23 Proceedings of meetings

(1) Subject to this Act and the regulations, a committee may regulate the proceedings at its meetings as it thinks fit.

(2) The meetings of a committee shall be held in private.

24 Proprietor of nursing home affected to be given notice

(1) The Chairman of a committee to which a matter relating to an approved nursing home has been referred by the Minister shall cause notice in writing of the matter so referred, and of the time and place at which an inquiry will be held by the committee into the matter, to be given to the proprietor of the home at least 10 days before the date of the proposed inquiry.

(2) A notice under subsection (1) may be served on a person either personally or by post.

25 Rights of proprietor at inquiry

Where a notice has been served on the proprietor of a nursing home under section 24:

(a) the proprietor may appear in person, or may be represented by another person, at the inquiry to which the notice relates; and

(b) if the proprietor appears, or is represented at the inquiry, he or she or his or her representative shall be given the opportunity to give evidence, or call witnesses, on behalf of the proprietor, to examine other witnesses appearing at the hearing and to address the committee.

26 Conduct of inquiry

(1) An inquiry shall be held in private.

(2) The rules of evidence do not apply in relation to an inquiry by a committee and the procedure for conducting an inquiry is, subject to this Act and the regulations, within the discretion of the member presiding.

(3) Where a document, book or writing is produced at an inquiry by a committee:

(a) a member of the committee may inspect the document, book or writing;

(b) the member of the committee presiding at the inquiry may retain the document, book or writing in his or her possession for such reasonable time as he or she thinks fit; and

(c) where the document, book or writing is so retained, a member of the committee may take copies from or take extracts from the document, book or writing.

(4) The member of a committee presiding at an inquiry may adjourn the inquiry from time to time as he or she thinks fit.

27 Protection of members represented as witnesses at inquiry

(1) A member of a committee has, in the performance of his or her duties connected with an inquiry, the same protection and immunity as a Justice in the High Court.

(2) A person appearing at an inquiry by a committee on behalf of another person has the same protection and immunity as a barrister has in appearing for a party in the High Court.

(3) A person appearing at an inquiry by a committee as a witness has the same protection as a witness in proceedings in the High Court.

28 Report by committee

After completion of an inquiry into a matter referred to a committee by the Minister in accordance with an agreement between the Commonwealth and the proprietor of an approved nursing home, the committee shall report to the Minister its opinion on the matter so referred to the committee.

29 Acceptance of financial assistance

The proprietor of a nursing home to which this Act applies may, notwithstanding anything contained in a law of a State:

(a) enter into an agreement in accordance with the common form of agreement;

(b) accept financial assistance given under an agreement so entered into and give effect to any conditions subject to which that assistance is given; and

30 Notice of change of proprietor of an approved nursing home etc.

(1) Where a person who is the proprietor of an approved nursing home is about to cease to be the proprietor of the nursing home and another person is about to become the proprietor of the nursing home, that other person shall, if it is practicable to do so, by notice in writing, notify the Minister accordingly not later than 1 month before so becoming the proprietor of the nursing home.

Penalty: $40.

(1A) Where a person who is the proprietor of an approved nursing home ceases to be the proprietor of the nursing home and another person becomes the proprietor of the nursing home, that other person shall, by notice in writing, notify the Minister accordingly immediately after he or she becomes the proprietor of the nursing home.

Penalty: $40.

(2) If the proprietor of an approved nursing home dies, the legal personal representative of the deceased proprietor shall, by notice in writing, notify the Minister forthwith.

Penalty: $40.

(3) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

30A Offences

(1) A person shall not make a statement, either orally or in writing, or issue or present a document containing information, that is false or misleading in a material particular and is capable of being used in, in connection with or in support of:

(aa) an application under section 3A;

(a) an application under section 4 for approval of premises as an approved nursing home;

(b) an application under section 6 for approval for this Act to apply in relation to specified services; or

(i) to alter the conditions applicable to a nursing home; or

(ii) to alter the conditions applicable to the approval that relates to approved services.

Penalty: $10,000 or imprisonment for 5 years.

(2) A person shall not, in pursuance of an agreement under section 15, furnish information that is false or misleading in a material particular.

Penalty: $10,000 or imprisonment for 5 years.

(3) In a prosecution of a person for an offence against this section, it is a defence if the person did not know, and had no reason to suspect, that the statement or information to which the prosecution relates was false or misleading, as the case may be.

Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.

30B Prosecution of offences

(1) Subject to subsection (2), an offence against section 30A is an indictable offence.

(2) A court of summary jurisdiction may hear and determine proceedings in respect of an offence referred to in subsection (1) if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(3) Where, in accordance with subsection (2), a court of summary jurisdiction convicts a person of an offence referred to in that subsection, the penalty that the court may impose is a fine not exceeding $2,000 or imprisonment for a period not exceeding 12 months.

31 Offence

A person appearing as a witness before a committee in connexion with an inquiry by the committee shall not make to the committee a statement that is false or misleading in a material particular.

Penalty: $1,000 or imprisonment for 12 months.

31A Principles under sections 3A and 4

(1) In this section, principles means principles formulated under subsection 3A(6) or 4(3C).

(2) Sections 48, 49, 49A and 50 of the Acts Interpretation Act 1901 apply in relation to principles as if in those sections references to regulations were references to principles, references to a regulation were references to a principle and references to a repeal were references to a revocation.

(3) Principles shall be deemed not to be statutory rules within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to principles in like manner as they apply in relation to statutory rules.

(4) For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (3), the reference in that first‑mentioned subsection to the Minister for Sport, Recreation and Tourism shall be read as a reference to the Minister administering this Act.

(5) Section 5 of the Evidence Act 1904 applies to a principle formulated by the Minister in like manner as that section applies to an order made by the Minister.

32 Judicial notice of signature of Secretary

(1) For the purpose of any proceedings in relation to an agreement under this Act or of a prosecution arising out of this Act, every Australian court is to take judicial notice of the signature of the person who holds or of a person who has held the office of Secretary and of the fact that that person holds or has held that office.

(2) In this section:

Australian court has the same meaning as in the Evidence Act 1995.

33 Evidence

(1) The Secretary may, by writing under his or her hand, certify that, during a period or on a date specified in the certificate:

(a) any premises were or were not an approved nursing home for the purposes of this Act;

(b) approval was, or was not, in force under section 6 for this Act to apply in relation to services provided at specified premises in association with the provision of nursing home care at a specified approved nursing home; and

(1A) The Secretary may, by writing under his or her hand, certify:

(a) that a document annexed to the certificate is a true copy of a document made or issued under this Act; or

(b) that:

(i) a document annexed to the certificate is a true copy of a document made or issued under this Act; and

(ii) the document of which the annexed document is certified to be a true copy had effect during a period or on a date specified in the certificate.

(2) In any proceedings in relation to an agreement under this Act, in a prosecution for an offence arising out of this Act and in an inquiry conducted under this Act, a certificate purporting to be given under this section:

(a) is evidence of the facts stated in the certificate; and

(b) shall, unless the contrary is proved, be deemed to have been given by the person purporting to have given the certificate.

34 Exercise of power by the Secretary subject to directions of Minister

The exercise of power by the Secretary or a delegate of the Secretary under this Act is subject to the directions (if any) of the Minister.

35 Delegation

(1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to a person (including the Secretary) all or any of his or her powers under this Act or the regulations, other than this power of delegation.

(2) A power so delegated under subsection (1), when exercised by the delegate, shall, for the purposes of this Act or the regulations, be deemed to have been exercised by the Minister.

(3) A delegate under subsection (1) is, in the exercise of a power so delegated, subject to the directions (if any) of the Minister.

(4) A delegation under subsection (1) does not prevent the exercise of a power by the Minister.

(5) The Secretary may, either generally as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to a person all or any of his or her powers under this Act or the regulations other than this power of delegation.

(6) A power so delegated under subsection (5), when exercised by the delegate, shall, for the purposes of this Act or the regulations, be deemed to have been exercised by the Secretary.

(7) A delegate under subsection (5) is, in the exercise of a power so delegated, subject to the directions (if any) of the Secretary.

(8) A delegation under subsection (5) does not prevent the exercise of a power by the Secretary.

36 Moneys from which payments under this Act to be made

Payments for the purposes of this Act or made under an agreement for the purposes of this Act shall be made out of the Consolidated Revenue Fund, which is appropriated accordingly.

36A Certain notices to be subject to disallowance

(1) In this section, notice means a notice by the Minister under subsection 12(4C) or 13(1A).

(2) Part XII of the Acts Interpretation Act 1901 applies in relation to a notice as if in that Part references to regulations were references to a notice, references to a regulation were references to a provision of a notice and references to a repeal were references to a revocation.

(3) Notices shall not be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to notices as they apply to statutory rules.

(4) For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (3) of this section, the reference in the first‑mentioned subsection to the Minister of State for Sport, Recreation and Tourism shall be read as a reference to the Minister administering this Act.

37 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 effect to this Act.

Column 1 Item No.	Column 2 Name and Address of Nursing Home	Column 3 State in which situated	Column 4 Approval No.
1.	Bambi Private Nursing Home Memorial Avenue LIVERPOOL	New South Wales	2609
2.	Bridge Nursing Home Albion Street DARLINGHURST	New South Wales	2631
3.	Campbell House Nursing Home Danham Street SURRY HILLS	New South Wales	2617
4.	Fairholme Nursing Home Pennant Hills Road PENNANT HILLS	New South Wales	2499
5.	Whitehall Nursing Home Marco Avenue REVESBY	New South Wales	2425

Act	Number and year	Date of Assent		Date of commencement	Application, saving or transitional provisions
Nursing Homes Assistance Act 1974	147, 1974	13 Dec 1974	13 Dec 1974
Administrative Changes (Consequential Provisions) Act 1976	91, 1976	20 Sept 1976	S. 3: (a)		S. 4
National Health Acts Amendment Act 1977	100, 1977	30 Sept 1977	Ss. 1, 2 and 32: Royal Assent Remainder: 1 Oct 1977		Ss. 28(2) and 32(2)
Nursing Homes Assistance Amendment Act 1980	118, 1980	8 Sept 1980	8 Sept 1980		—
Health Acts Amendment Act 1981	118, 1981	25 June 1981	Part IV (ss. 76‑80): (b)		S. 77(2)‑(4)
Statute Law (Miscellaneous Amendments) Act (No. 1) 1982	26, 1982	7 May 1982	Part XXIX (ss. 166, 167): 4 June 1982 (c)		—
Statute Law (Miscellaneous Amendments) Act (No. 2) 1982	80, 1982	22 Sept 1982	Part LI (ss. 192‑194): Royal Assent (d)		—
Health Legislation Amendment Act (No. 2) 1983	139, 1983	22 Dec 1983	Ss. 58, 59, 61(1)‑(3), 66(1), (2), and (4)‑(7), 63‑65, 66(1), 67, 68, 69(1), and (4), 70, 71, 72(1), 73 and 75: Royal Assent (e) Ss. 60, 61(3), and (8)‑(10), 62(2), 66(2), 69(2), and (3), 72(2) and 74: 23 May 1984 (see Gazette 1984, No. S183) (e) S. 62(1): (e)		Ss. 2(11), 59(2), 61(1), and (4)‑(10), 63(2)‑(5), 67(2), 68(2), 69(4), 73(2) and 75(2)
Public Service Reform Act 1984	63, 1984	25 June 1984	S. 151(1): 1 July 1984 (see Gazette 1984, No. S245) (f)		S. 151(9)
as amended by
Statute Law (Miscellaneous Provisions) Act (No. 2) 1984	165, 1984	25 Oct 1984	S. 3: (g)		Ss. 2(32) and 6(1)
Statute Law (Miscellaneous Provisions) Act (No. 1) 1985	65, 1985	5 June 1985	S. 3: 30 June 1984 (h)		—
National Welfare Fund Repeal Act 1985	24, 1985	22 May 1985	Ss. 1, 2 and 5: Royal Assent Remainder: 1 July 1985 (see Gazette 1985, No. S232)		S. 5
Social Security Legislation Amendment Act 1985	52, 1985	4 June 1985	4 June 1985		—
Statute Law (Miscellaneous Provisions) Act (No. 1) 1985	65, 1985	5 June 1985	S. 3: 3 July 1985 (j)		—
Nursing Homes and Hostels Legislation Amendment Act 1986	115, 1986	24 Nov 1986	S. 5(1) and (2): 22 Oct 1986 S. 5(3) and (4): 6 May 1987 S. 7: 1 Aug 1991 (see Gazette 1991, No. S207) Ss. 16, 17, 21, 34, 35 and 37: 1 May 1987 (see Gazette 1987, No. S68) S. 30: 5 June 1985 Remainder: Royal Assent		S. 39
as amended by
Community Services and Health Legislation Amendment Act 1991	84, 1991	26 June 1991	Part 4 (ss. 15, 16): Royal Assent (k)		—
Health and Community Services Legislation Amendment Act (No. 2) 1993	76, 1993	25 Nov 1993	Ss. 24‑27: Royal Assent (l)		—
Nursing Homes and Hostels Legislation Amendment Act 1987	72, 1987	5 June 1987	Part III (ss. 34‑41): (m)		Ss. 32, 33 and 41 S. 31 (am. by 79, 1988, s. 33)
as amended by
Community Services and Health Legislation Amendment Act 1988	79, 1988	24 June 1988	S. 33: (n)		—
Community Services and Health Legislation Amendment Act 1989	95, 1989	28 June 1989	S. 10: 10 Oct 1989 (see Gazette 1989, No. S323) Ss. 11‑16 and 18 and Schedule: 1 Aug 1989 Ss. 20(2), 21, 22, 53(2) and 54: 28 Dec 1989 S. 23: 15 Mar 1989 S. 37(a)‑(k) and (s): 1 June 1989 Part 5 (ss. 55‑62): 1 July 1989 Part 7 (ss. 65‑68): 1 Jan 1989 Remainder: Royal Assent		—
Community Services and Health Legislation Amendment Act (No.2) 1989	3, 1990	17 Jan 1990	Ss. 4, 26(b), (c), 28 and 31: 1 July 1990 Ss. 5, 26(d) and (e): 1 July 1990 (see Gazette 1990, No. S164) S. 14(e): 1 June 1990 S. 16: 1 July 1988 Ss. 33, 34 and 36: 1 Apr 1990 (see Gazette 1990, No. S83) Remainder: Royal Assent		S. 41(2)‑(4)
Health and Community Services Legislation Amendment Act 1991	211, 1991	24 Dec 1991	Ss. 10 and 11: 29 Apr 1992 Part 5 (ss. 30, 31): 19 Aug 1991 Ss. 35, 37 and 39: 1 Apr 1992 Remainder: Royal Assent		—
Evidence (Transitional Provisions and Consequential Amendments) Act 1995	3, 1995	23 Feb 1995	S. 14: Royal Assent (o) S. 26: 23 Feb 1995 (o) S. 27: 18 Apr 1995 (o)		S. 14
Statute Law Revision Act 1996	43, 1996	25 Oct 1996	Schedule 4 (item 115) and Schedule 5 (items 103‑105): Royal Assent (p)		—
Statute Stocktake Act 1999	118, 1999	22 Sept 1999	22 Sept 1999		Sch. 2 (item 48) [see Table A]
Health and Aged Care Legislation Amendment (Application of Criminal Code) Act 2001	111, 2001	17 Sept 2001	17 Sept 2001		S. 4 [see Table A]

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Title....................	am. No. 72, 1987
S. 3....................	am. No. 91, 1976; No. 100, 1977; No. 118, 1981; No. 80, 1982; No. 139, 1983; No. 63, 1984 (as am. by No. 65, 1985); No. 65,1985; No. 115, 1986; No. 72, 1987; No. 95, 1989; No. 3, 1990; No. 118, 1999
S. 3AA .................	ad. No. 115, 1986
	rep. No. 72, 1987
	ad. No. 111, 2001
S. 3A ...................	ad. No. 139, 1983
	am. No. 115, 1986; No. 72, 1987; No. 95, 1989; No. 43, 1996
S. 4....................	am. No. 100, 1977; No. 118, 1981; No. 139, 1983; No. 115,1986; No. 72, 1987; No. 95, 1989; No. 43, 1996
S. 5....................	am. No. 100, 1977; No. 139, 1983; No. 115, 1986; No. 95, 1989
S. 6....................	am. No. 100, 1977; No. 139, 1983; No. 52, 1985; No. 115, 1986; No. 95, 1989; No. 43, 1996
S. 7....................	am. No. 139, 1983; No. 63, 1984
S. 8....................	am. No. 139, 1983; No. 43, 1996; No. 111, 2001
S. 9....................	am. No. 139, 1983; No. 115, 1986; No. 72, 1987; No. 43, 1996; No. 111, 2001
S. 10...................	rep. No. 139, 1983
S. 11...................	am. No. 139, 1983; No. 43, 1996
S. 11AA ................	ad. No. 211, 1991
Ss. 11A, 11B.............	ad. No. 139, 1983
	am. No. 139, 1983; No. 115, 1986; No. 43, 1996
S. 11C..................	ad. No. 139, 1983; No. 43, 1996
S. 12...................	am. No. 100, 1977; No. 63, 1984; No. 115, 1986; No. 95, 1989; No. 43, 1996
S. 13...................	am. No. 100, 1977; No. 118, 1981; No. 63, 1984; No. 115, 1986; No. 43, 1996
S. 13A ..................	ad. No. 100, 1977
	rep. No. 118, 1981
S. 14...................	am. No. 100, 1977; No. 63, 1984; No. 43, 1996
S. 15...................	am. No. 100, 1977; No. 139, 1983; No. 63, 1984; No. 43, 1996
Ss. 15A‑15H.......	ad. No. 3, 1990
S. 17...................	am. No. 100, 1977
S. 18...................	am. No. 115, 1986; No. 43, 1996
S. 19...................	am. No. 43, 1996
S. 21...................	am. No. 43, 1996
S. 22...................	am. No. 43, 1996
Ss. 25‑27.........	am. No. 43, 1996
S. 28...................	am. No. 100, 1977
S. 30...................	am. No. 139, 1983; No. 43, 1996; No. 111, 2001
S. 30A ..................	ad. No. 118, 1980
	am. No. 139, 1983; No. 43, 1996; No. 111, 2001
Note to s. 30A(3) ..........	ad. No. 111, 2001
S. 30B..................	ad. No. 118, 1980
	rs. No. 139, 1983
S. 31A ..................	ad. No. 139, 1983
	am. No. 65, 1985
S. 32...................	am. No. 63, 1984; No. 3, 1995
S. 33...................	am. No. 80, 1982; No. 63, 1984; No. 43, 1996
S. 34...................	am. No. 63, 1984
S. 35...................	am. No. 91, 1976
	rs. No. 139, 1983
	am. No. 63, 1984; No. 43, 1996
S. 36...................	am. No. 26, 1982; No. 24, 1985
S. 36A ..................	ad. No. 115, 1986
	am. No. 115, 1986; No. 95, 1989; No. 3, 1995
Schedule................	ad. No. 211, 1991