the entity is liable to repay the amount to the Commonwealth.
this Act includes:
- (a)
- the voucher rules; and
- (b)
- the accreditation scheme; and
- (c)
- the rules of conduct.
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HEARING SERVICES ADMINISTRATION ACT 1997
Part 5Review of decisions
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 28
Simplified outline
The following is a simplified outline of this Part:
* Certain decisions of the Minister may be reviewed by the Administrative Appeals Tribunal following a process of reconsideration by the Minister.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 29
Decisions that may be subject to reconsideration by the
Minister
An application may be made to the Minister for reconsideration of any of the following decisions:
- (a)
- a decision by the Minister refusing to issue a voucher to a participant in the voucher system;
- (b)
- a decision made by the Minister under the voucher rules;
- (c)
- a decision made by the Minister under the accreditation scheme;
- (d)
- a decision made by the Minister under a condition of accreditation;
- (e)
- a decision made by the Minister under the rules of conduct;
- (f)
- a decision of the Minister made under section 19 (which deals with disqualification for fraud, dishonesty etc.).
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 30
Statements to accompany notification of decisions
- (1)
- If the Minister makes a decision of a kind referred to in section 29 and gives written notice of the decision to a person whose interests are affected by the decision, the notice must include:
- (a)
- a statement to the effect that a person affected by the decision may, if he or she is dissatisfied with the decision, seek a reconsideration of the decision by the Minister under subsection 31(1); and
- (b)
- a statement to the effect that, if a person who has applied for a reconsideration is dissatisfied with the Minister's decision on the reconsideration:
- (i)
- subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision on that reconsideration; and
- (ii)
- the person may request a statement under section 28 of that Act in relation to the decision on that reconsideration.
- (2)
- Failure to comply with this section does not affect the validity of a decision.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 31
Applications for reconsideration of decisions
- (1)
- A person affected by a decision of a kind referred to in section 29 who is dissatisfied with the decision may apply to the Minister for the Minister to reconsider the decision.
- (2)
- The application must:
- (a)
- be in a form approved in writing by the Minister; and
- (b)
- set out the reasons for the application.
- (3)
- The application must be made within:
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- (a)
- 28 days after the applicant is informed of the decision; or
- (b)
- if, either before or after the end of that period of 28 days, the Minister extends the period within which the application may be madethe extended period for making the application.
- (4)
- An approved form of an application may provide for verification by statutory declaration of statements in applications.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 32
Reconsideration by the Minister
- (1)
- Upon receiving such an application, the Minister must:
- (a)
- reconsider the decision; and
- (b)
- affirm, vary or revoke the decision.
- (2)
- The Minister's decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.
- (3)
- The Minister must give to the applicant a notice stating the Minister's decision on the reconsideration together with a statement of the Minister's reasons for the Minister's decision.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 33
Deadlines for reconsiderations
- (1)
- The Minister must make his or her decision on reconsideration of a decision within 90 days after receiving an application for reconsideration.
- (2)
- The Minister is taken, for the purposes of this Part, to have made a decision affirming the original decision if the Minister has not informed the applicant of the Minister's decision on the reconsideration before the end of the period of 90 days.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 34
Statements to accompany notification of decisions on
reconsideration
- (1)
- A notice under subsection 32(3) notifying the applicant that a decision has been affirmed or varied must include:
- (a)
- a statement to the effect that a person whose interests are affected by the decision so affirmed or varied may, subject to the Administrative Appeals Tribunal Act 1975, if he or she is dissatisfied with the decision so affirmed or varied, apply to the Administrative Appeals Tribunal for review of the decision; and
- (b)
- a statement to the effect that the person may request a statement under section 28 of that Act in relation to the decision so affirmed or varied.
- (2)
- Failure to comply with this section does not affect the validity of a decision.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 35
Review by the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal to review a decision of a kind referred to in section 29 if the Minister has affirmed or varied the decision under section 32.
HEARING SERVICES ADMINISTRATION ACT 1997
Part 6Injunctions
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HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 36
Simplified outline
The following is a simplified outline of this Part:
* The Federal Court may grant injunctions in relation to contraventions of:
(a) this Act; or
(b) the voucher rules; and
(c) a condition of an accreditation; or
(d) an agreement under section 20.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 37
Injunctions
Restraining injunctions
- (1)
- If an entity has engaged, is engaging or is proposing to engage, in any conduct in contravention of:
- (a)
- this Act; or
- (b)
- the voucher rules; or
- (c)
- if the entity is accredited under the accreditation schemea condition of that accreditation; or
- (d)
- if the entity is engaged under section 20an agreement under that section;
the Federal Court may, on the application of the Minister, grant an injunction:
- (e)
- restraining the entity from engaging in the conduct; and
- (f)
- if, in the court's opinion, it is desirable to do sorequiring the entity to do something.
Performance injunctions
- (2)
- If:
- (a)
- an entity has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
- (b)
- the refusal or failure was, is or would be a contravention of:
- (i)
- this Act; or
- (ii)
- the voucher rules; or
- (iii)
- if the entity is accredited under the accreditation schemea condition of that accreditation; or
- (iv)
- if the entity is engaged under section 20an agreement under that section;
the Federal Court may, on the application of the Minister, grant an injunction requiring the entity to do that act or thing.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 38
Interim injunctions
Grant of interim injunction
- (1)
- If an application is made to the court for an injunction under section 37, the court may, before considering the application, grant an interim injunction restraining an entity from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
- (2)
- The court is not to require an applicant for an injunction under section 37, as a condition of granting an interim injunction, to give any undertakings as to damages.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 39
Discharge etc. of injunctions
The court may discharge or vary an injunction granted under this Part.
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HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 40
Certain limits on granting injunctions not to apply
Restraining injunctions
- (1)
- The power of the court under this Part to grant an injunction restraining an entity from engaging in conduct of a particular kind may be exercised:
- (a)
- if the court is satisfied that the entity has engaged in conduct of that kindwhether or not it appears to the court that the entity intends to engage again, or to continue to engage, in conduct of that kind; or
- (b)
- if it appears to the court that, if an injunction is not granted, it is likely that the entity will engage in conduct of that kindwhether or not the entity has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any entity if the entity engages in conduct of that kind.
Performance injunctions
- (2)
- The power of the court to grant an injunction requiring an entity to do an act or thing may be exercised:
- (a)
- if the court is satisfied that the entity has refused or failed to do that act or thingwhether or not it appears to the court that the entity intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
- (b)
- if it appears to the court that, if an injunction is not granted, it is likely that the entity will refuse or fail to do that act or thingwhether or not the entity has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any entity if the entity refuses or fails to do that act or thing.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 41
Other powers of the court unaffected
The powers conferred on the court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
HEARING SERVICES ADMINISTRATION ACT 1997
Part 7Vicarious liability
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 42
Simplified outline
The following is a simplified outline of this Part:
* This Part deals with proof in civil proceedings of matters that involve employees, agents etc.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 43
Liability of corporations
State of mind
- (1)
- If, in a civil proceeding under this Act in respect of conduct engaged in by a corporation, it is necessary to establish the state of mind of the corporation, it is sufficient to show that:
- (a)
- a director, employee or agent of the corporation engaged in that conduct; and
- (b)
- the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and
- (c)
- the director, employee or agent had that state of mind.
Conduct
- (2)
- If:
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- (a)
- conduct is engaged in on behalf of a corporation by a director, employee or agent of the corporation; and
- (b)
- the conduct is within the scope of his or her actual or apparent authority;
the conduct is taken, for the purposes of a civil proceeding under this Act, to have been engaged in by the corporation unless the corporation establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.
Extended meaning of state of mind
- (3)
- A reference in subsection (1) to the state of mind of a person includes a reference to:
- (a)
- the knowledge, intention, opinion, belief or purpose of the person; and
- (b)
- the person's reasons for the intention, opinion, belief or purpose.
Extended meaning of director
- (4)
- A reference in this section to a director of a corporation includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
Extended meaning of engaging in conduct
- (5)
- A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 44
Liability of persons other than corporations
State of mind
- (1)
- If, in civil proceedings under this Act in respect of conduct engaged in by a person other than a corporation, it is necessary to establish the state of mind of the person, it is sufficient to show that:
- (a)
- the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
- (b)
- the employee or agent had that state of mind.
Conduct
- (2)
- If:
- (a)
- conduct is engaged in on behalf of a person other than a corporation by an employee or agent of the person; and
- (b)
- the conduct is within the employee's or agent's actual or apparent authority;
the conduct is taken, for the purposes of a civil proceeding under this Act, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.
Extended meaning of state of mind
- (3)
- A reference in this section to the state of mind of a person includes a reference to:
- (a)
- the knowledge, intention, opinion, belief or purpose of the person; and
- (b)
- the person's reasons for the intention, opinion, belief or purpose.
Extended meaning of engaging in conduct
- (4)
- A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
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HEARING SERVICES ADMINISTRATION ACT 1997
Part 8Miscellaneous
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 45
Simplified outline
The following is a simplified outline of this Part:
* The Criminal Code applies to offences against this Act.
* Partnerships are to be treated as persons for the purposes of this Act.
* Provision is made in relation to the service of documents.
* The Governor-General may make regulations for the purposes of this Act.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 46
Application of Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 47
Treatment of partnerships
This Act applies to a partnership as if the partnership were a person. However, obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 48
Giving of documents to partnerships
For the purposes of this Act, if a document is given to a partner of a partnership in accordance with section 28A of the Acts Interpretation Act 1901, the document is taken to have been given to the partnership.
HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 49
Nomination of address for service of documents
- (1)
- For the purposes of this Act, a person may nominate an address for service in:
- (a)
- an application made by the person under this Act; or
- (b)
- any other document given by the person to the Minister.
The address must be in Australia.
- (2)
- For the purposes of this Act, a document may be given to the person by leaving it at, or by sending it by pre-paid post to, the nominated address for service.
- (3)
- Subsection (2) has effect in addition to section 28A of the Acts Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.
- (4)
- In this section:
this Act includes:
- (a)
- the voucher rules; and
- (b)
- the accreditation scheme; and
- (c)
- the rules of conduct.
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HEARING SERVICES ADMINISTRATION ACT 1997
- SECT 50
Regulations
The Governor-General may make regulations prescribing matters:
- (a)
- required or permitted by this Act to be prescribed; or
- (b)
- necessary or convenient to be prescribed for carrying out or giving effect to this Act.
HEARING SERVICES ADMINISTRATION ACT 1997
Notes to the Hearing Services Administration Act 1997
Note 1
The Hearing Services Administration Act 1997 as shown in this compilation comprises Act No. 81, 1997 amended as indicated in the Tables below.
For all relevant information pertaining to application, saving or transitional provisions see Table A.
Table of Acts
Act
| Number and year
| Date of Assent
| Date of commencement
| Application, saving or transitional provisions
|
Hearing Services Administration Act 1997
| 81, 1997
| 18 June 1997
| 18 June 1997
|
|
Health Insurance Commission (Reform and Separation of Functions) Act 1997
| 159, 1997
| 11 Nov, 1997
| Schedule 1 (items 35-37): Royal Assent (a)
|
|
Health and Aged Care Legislation Amendment (Application of Criminal Code) Act 2001
| 111, 2001
| 17 Sept 2001
| 17 Sept 2001
| S. 4
|
(a)
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The Hearing Services Administration Act 1997 was amended by Schedule 1 (items 35-37) only of the Health Insurance Commission (Reform and Separation of Functions) Act 1997, subsection 2(1) of which provides as follows: (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
|
Provision affected
| How affected
|
S. 6A
| ad. No. 111, 2001
|
S. 19
| am. No. 111, 2001
|
S. 21
| am. No. 159, 1997
|
Note to s. 21(6)
| ad. No. 159, 1997
|
Note to s. 21(7)
| ad. No. 159, 1997
|
S. 22
| rep. No. 111, 2001
|
S. 47
| am. No. 111, 2001
|
Table A
Application, saving or transitional provisions
Health and Aged Care Legislation Amendment (Application of Criminal Code) Act 2001 (No. 111, 2001)
4 Application of amendments - (1)
- Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.
- (2)
- For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.