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Nursing Homes Assistance Act 1974

Authoritative Version
Act No. 147 of 1974 as made
An Act to provide Financial Assistance in respect of Nursing Homes.
Administered by: Health
Date of Assent 13 Dec 1974
Date of repeal 17 Nov 2009
Repealed by Statute Stocktake (Regulatory and Other Laws) Act 2009

NURSING HOMES ASSISTANCE ACT 1974

No. 147 of 1974

An Act to provide Financial Assistance in respect of Nursing Homes.

BE IT ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows: —

Short title.

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

Commencement.

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

Interpretation.

3.   (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 sub-section 6(1) that is in force;

“authorized” means authorized by the Permanent Head;

“committee” means a Nursing Homes Advisory Committee for a State;

“common form of agreement” means the form of agreement approved by the Minister under sub-section 12(1);

“eligible organization” means—

(a) an organization (other than an organization conducted or controlled by, or by persons appointed by, the Australian Government 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;

“Government nursing home” means a prescribed nursing home conducted by or on behalf of Australia 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 in which patients are received and lodged exclusively for the purpose of nursing home care other than premises the maintenance expenditure of which is provided for under arrangements entered into under the Tuberculosis Act 1948-1973;

“nursing home care” means accommodation and nursing care of a kind provided in a nursing home;

“Permanent Head” means the Permanent Head of the Department of Social Security;

“premises” includes a part of premises;

“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.

(2) A reference in this Act to a nursing home to which this Act applies is a reference to a nursing home, other than a Government nursing home, conducted by an eligible organization.

(3) Where, by virtue of an approval under sub-section 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.

Approval of Nursing Home.

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

(2) Where application is made under sub-section (1) in respect of premises—

(a) if the premises are an approved nursing home for the purposes of the National Health Act 1953-1974—the Permanent Head shall approve the premises as an approved nursing home for the purposes of this Act; and

(b) in any other case—subject to this section, the Permanent Head shall, if he is satisfied that the premises are a nursing home, approve the premises as an approved nursing home for the purposes of this Act.

(3) Where—

(a) application is made for approval of premises other than premises referred to in paragraph (2) (a) as an approved nursing home; and

(b) the Permanent Head 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 1953-1974) in the locality in which the premises to which the application relates are situated make adequate provision for nursing home care in that locality, being an opinion that, if the premises are in a State, is formed by the Permanent Head after consulting with the authority in that State responsible for the administration of nursing homes in that State,

the Permanent Head may refuse the application unless the applicant has, within a period of 12 months, or within such longer period as the Permanent Head allowed, before the making of the application, informed the Permanent Head, in writing, that the applicant proposed to make the application, or to make application for approval of the premises under section 40aa of the National Health Act 1953-1972 or of that Act as subsequently amended, and the Permanent Head had informed the applicant, in writing, that application for approval of the premises under this sub-section, or under that section, as the case may be, would not be refused.

(4) Where—

(a) the approval of premises as a nursing home has been revoked under section 11 of this Act or under sub-section 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 Permanent Head may refuse the application.

(5) If the Permanent Head does not grant an approval in accordance with an application under this section, he 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 Permanent Head 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 without the approval of the Permanent Head;

(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 Permanent Head under section 40ab of the National Health Act 1953-1974;

(c) any other conditions determined by the Permanent Head for the purpose of ensuring that the needs of qualified nursing home patients in the nursing home are satisfactorily provided for.

(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 Permanent Head is satisfied—

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

(ii) that, if application for his approval had been made under section 40ab of the National Health Act 1953-1974 at or before the time of the admission, he would have approved the admission, the Permanent Head 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 sub-section (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) A power or function of the Permanent Head under sub-section (7) shall not be delegated except to a medical practitioner employed by a Department of State.

(10) Where the Permanent Head grants under this section an approval of premises as an approved nursing home, he shall determine the period, which may be a period commencing before the date on which he grants the approval but not before the date as from which the agreement entered into between Australia 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 Australia 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 Australia under the agreement entered into between the proprietor and Australia for the purposes of this Act in relation to the nursing home; and

(ii) if a registered hospital benefit organization within the meaning of the National Health Act 1953-1974 had paid an amount to the proprietor, in respect of a period or a part of a period referred to in paragraph (a), by way of a benefit of a kind referred to in section 73c of that Act, the proprietor is liable to repay that amount to that organization.

Application of National Health Act.

5.   (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 Division 2 of Part V of that Act or under this Act; 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 Division 2 of Part V of that Act or approved under this Act.

(2) After 31 December 1974, section 40aa of the National Health Act 1953-1974 applies—

(a) as if there were inserted in paragraph 3(b) of that section, after the words “approved as nursing homes” the words “and premises approved, or proposed to be approved, as nursing homes under the Nursing Homes Assistance Act 1974”; and

(b) as if there were substituted for the words “the applicant proposes to make the application and the Permanent Head has informed the applicant, in writing, that the application will not be refused under this sub-section” in sub-section (3) of that section the words “the applicant proposed to make the application, or to make application for approval of the premises under section 4 of the Nursing Homes Assistance Act 1974, and the Permanent Head had informed the applicant, in writing, that application for approval of the premises under this sub-section, or under that section, as the case may be, would not be refused”.

(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.

Approval of additional services.

6.    (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 sub-section (1) and the Permanent Head 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 Permanent Head, shall, except as provided in sub-section (3), 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 sub-section (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 Permanent Head 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 Permanent Head 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 Permanent Head may refuse to approve the application unless the applicant has, within a period of 12 months, or within such longer period as the Permanent Head allowed, before the making of the application, informed the Permanent Head, in writing, that the applicant proposed to make the application and the Permanent Head had informed the applicant, in writing, that the application would not be refused.

(4) An approval under sub-section (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 Permanent Head; and

(b) any other conditions determined by the Permanent Head for the purpose of ensuring that the needs of persons included in that class of persons who seek the services are satisfactorily provided for.

(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 Permanent Head approves an application under this section by the proprietor of a nursing home, he shall determine the period, which may be a period commencing before the date on which he grants the approval but not before the date as from which the agreement entered into between Australia 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.

Inspection of premises and provision of information.

7.     Where an application is made to the Permanent Head under section 4 or 6, the Permanent Head may request the applicant—

(a) to permit a person authorized by the Permanent Head 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.

Certificate of approval.

8.     (1) Where the Permanent Head approves premises as a nursing home, the Permanent Head 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 Permanent Head 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 Permanent Head 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—

(a) the proprietor of an approved nursing home applies to the Permanent Head for revocation of the approval of the home or of the approval relating to approved services; or

(b) the proprietor, or the legal personal representative of the proprietor, of an approved nursing home gives notice to the Permanent Head in accordance with section 30,

he shall forward the relevant certificate or certificates of approval with the application or notice.

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 Permanent Head.

Penalty: $40.

(6) A certificate under sub-section (1) shall specify the period in respect of which the approval is to be in force.

Alterations of conditions applicable to a nursing home.

9.     (1) The Permanent Head may, at any time, on application by the proprietor of a nursing home or otherwise—

(a) alter the conditions applicable to the nursing home—

(i) 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 Permanent Head; or

(ii) 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 in relation to the nursing home under that paragraph; or

(b) alter the conditions applicable to the approval that relates to approved services to be provided by the proprietor of the nursing home—

(i) by substituting for the approved class of persons to whom the approval of those service relates such other class of persons as is determined by the Permanent Head; or

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

(2) Where the Permanent Head, in pursuance of sub-section (1), alters the conditions applicable to a nursing home, or to an approval that relates to approved services provided at premises by the proprietor of a nursing home, he shall cause to be issued to the proprietor of the nursing home, in place of the certificate of approval in force under section 8 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.


 

(3) Where a new certificate of approval is issued to the proprietor of a nursing home under sub-section (2) in relation to the nursing home or to premises at which he is providing approved services, the proprietor shall forward the certificate of approval previously issued to him in relation to the nursing home or premises to the Permanent Head.

Penalty for an offence against this sub-section: $40.

Application by proprietor of nursing home for alteration of conditions.

10.   (1) Where the proprietor of an approved nursing home makes application, in writing, to the Permanent Head for an alteration of the conditions applicable to the nursing home, or to approved services provided by the proprietor, the Permanent Head shall, within 2 months after receipt of the application, either alter the conditions, whether in accordance with the application or otherwise, or refuse the application, and notify the applicant, in writing, accordingly.

(2) Where the Permanent Head does not alter the conditions in accordance with the application, the proprietor may, by writing under his hand, request the Minister to review the decision of the Permanent Head.

(3) Upon receipt of a request under sub-section (2), the Minister shall, after such investigation of the matter as he considers necessary, either confirm or vary the decision of the Permanent Head, and advise the proprietor accordingly.

(4) Where the Minister varies the decision of the Permanent Head, the Permanent Head shall, for the purposes of sub-section 9(2), be deemed to have altered the conditions applicable to the nursing home, or to the approved services provided by the proprietor of the nursing home, in accordance with the decision as so varied.

Variation or revocation of approval.

11.   (1) The Permanent Head 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 Permanent Head 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 may vary the nature of the approval or revoke the approval as he 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 Permanent Head may revoke the approval of the nursing home or the approval applicable to those approved services, or both.

Common form of nursing home agreement.

12.   (1) The Minister may, after consultation with the prescribed associations representing eligible organizations, approve a form of agreement to be entered into by Australia and any proprietor of a nursing home with respect to the provision by Australia 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 sub-section (1), there shall be included in the form of agreement—

(a) provisions in accordance with which the Permanent Head 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 Permanent Head, 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, Australia 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 Australia to the proprietor of advances on account of amounts that may become payable to him 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 Permanent Head 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 Permanent Head 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 sub-section (1) shall also include provisions allowing the recovery by Australia 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 an 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 referred to in sub-paragraph (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 Permanent Head 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.

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

Fees.

13.   (1) The form of agreement between Australia and the proprietor of a nursing home approved by the Minister under sub-section 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 prescribed from time to time;

(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 in respect of his incapacity;

(c) if the Permanent Head 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 Permanent Head approves; or

(d) if the patient has received or established his 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 Australia or of a State or Territory—at the rate applicable to the patient in accordance with the regulations.

(2) The form of agreement between Australia and the proprietor of a nursing home approved by the Minister under sub-section 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 for persons included in the approved class of persons; and

(b) under which the Permanent Head 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.

Appeals.

14.   (1) The form of agreement between Australia and the proprietor of a nursing home approved by the Minister under sub-section 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 Permanent Head in respect of the proprietor; or

(b) the amount determined by the Permanent Head 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 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.

Agreement with proprietor of nursing home.

15.   (1) The Permanent Head may, on behalf of Australia, 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 to the Permanent Head under sub-section 4(1).

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

(3) In the event of the Minister terminating his 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.

Nursing Homes Advisory Committee.

16.   (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.

Functions of committee.

17.   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 Australia and the proprietor of an approved nursing home situated in the State.

Remuneration and allowances.

18.   (1) A member of a committee shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed.

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

(3) This section has effect subject to the Remuneration Tribunals Act 1973-1974.

Resignation of member.

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

Termination of appointment.

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

Acting appointment.

21.   (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 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 office shall, during the period of his appointment, be deemed, for the purposes of sub-section (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 sub-section (1) to be acting Chairman, or a person appointed under sub-section (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.

Meetings of committee.

22.   (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 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 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 sub-section (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.

Proceedings of meetings.

23.   (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.

Proprietor of nursing home affected to be given notice.

24.   (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 sub-section (1) may be served on a person either personally or by post.

Rights of proprietor at inquiry.

25.   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 his 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.

Conduct of inquiry.

26.   (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 possession for such reasonable time as he 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 thinks fit.

Protection of members represented as witnesses at inquiry.

27.   (1) A member of a committee has, in the performance of his 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.

Report by committee.

28.   After completion of an inquiry into a matter referred to a committee by the Minister in accordance with an agreement between Australia 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.

Acceptance of financial assistance.

29.   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

(c) give effect to any conditions to which an approval under this Act that relates to the proprietor is subject.

Notice of retirement or death of proprietor.

30.   (1) If the proprietor of an approved nursing home ceases to be the proprietor of the home, he shall, by notice in writing, notify the Permanent Head forthwith.

(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 Permanent Head forthwith.

Penalty: $40.

Offence.

31.   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.

Judicial notice of signature of Permanent Head.

32.   (1) For the purpose of any proceedings in relation to an agreement under this Act or of a prosecution arising out of this Act, all courts shall take judicial notice of the signature of the person who holds or of a person who has held the office of Permanent Head and of the fact that that person holds or has held that office.

(2) In this section, “courts” has the same meaning as in the Evidence Act 1905-1974.

33.   (1) The Permanent Head may, by writing under his hand, certify that, during a period or on a date specified in the certificate—

Evidence.

(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;

(c) an approval under this Act was subject to terms and conditions stated in the certificate; and

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


 

(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.

Exercise of power by the Permanent Head subject to directions of Minister.

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

Delegation.

35.   (1) The Permanent Head may, by writing under his hand, delegate all or any of his powers and functions under this Act (except this power of delegation) to any officer of the Department of Social Security.

(2) A power or function so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.

(3) A delegation under this section is revocable at will and does not prevent the exercise of a power or the performance of a function by the Permanent Head.

Moneys from which payments under this Act to be made.

36.   Payments for the purposes of this Act or made under an agreement for the purposes of this Act shall be made out of the Trust Account established by the National Welfare Act1943-1952 and known as the National Welfare Fund.

Regulations.

37.   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.