Sanctions Principles 1997 (Cth)

Sanctions Principles 1997

as amended

made under subsection 96-1(1) of the

Aged Care Act 1997

Compilation start date:   1 August 2013

Includes amendments up to: Sanctions Amendment (Various Measures) Principle 2013

About this compilation

The compiled instrument

This is a compilation of the Sanctions Principles 1997 as in force on 1 August 2013. It includes any commenced amendment affecting the compilation to that date.

This compilation was prepared on 21 August 2013.

The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision.

Uncommenced provisions and amendments

If a provision of the compiled instrument is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes.

Application, saving and transitional provisions for amendments

If the operation of an amendment is affected by an application, saving or transitional provision, the provision is identified in the endnotes.

Modifications

If a provision of the compiled instrument is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled instrument has expired or otherwise ceased to have effect in accordance with a provision of the instrument, details of the provision are set out in the endnotes.

Contents

Part 1—Preliminary  1

22.1....... Citation.......................................................................................................................... 1

22.2....... Commencement............................................................................................................. 1

22.3....... Definitions..................................................................................................................... 1

Part 1A—Reasonable steps to ensure suitability of key personnel  2

22.3A.... Purpose of Part (Act, s 63‑1A)..................................................................................... 2

22.3B.... Reasonable steps to be taken......................................................................................... 2

Part 2—Administration of sanctions  4

Division 1—Appointment of adviser instead of revocation of approval                4

22.4....... Purpose of Division (Act, s 66‑2)................................................................................. 4

22.7....... Decision on nomination................................................................................................. 4

22.9....... Nomination of another adviser...................................................................................... 4

Division 2—Appointment of administrator instead of revocation of approval     6

22.10..... Purpose of Division (Act, s 66‑2)................................................................................. 6

22.13..... Decision on nomination................................................................................................. 6

22.15..... Nomination of another administrator............................................................................. 6

Part 3—Sanctions  8

Division 1—Sanction period  8

22.16..... Purpose of Division (Act, s 68‑2)................................................................................. 8

22.17..... The matters.................................................................................................................... 8

Division 2—Lifting of sanctions  9

22.18..... Purpose of Division (Act, ss 68‑3 and 68‑4)................................................................ 9

22.19..... The matters.................................................................................................................... 9

22.20..... The application requirements......................................................................................... 9

Endnotes10

Endnote 1—Legislation history  10

Endnote 2—Amendment history  11

Endnote 3—Uncommenced amendments [none]  12

Endnote 4—Misdescribed amendments [none]  13

Note: Part 4.4 of the Aged Care Act 1997

Part 4.4 of the Aged Care Act 1997 is about the consequences of non‑compliance with an approved provider’s responsibilities under Part 4.1, 4.2 or 4.3 of the Act.

Sanctions can be imposed on the approved provider. A number of sanctions are set out in section 66‑1 of the Act.

These Principles deal with a number of matters that are important in operating the sanctions process.

Part 1—Preliminary

22.1  Citation

These Principles may be cited as the Sanctions Principles 1997.

22.2  Commencement

These Principles commence on 1 October 1997.

22.3  Definitions

In these Principles:

Act means the Aged Care Act 1997.

non‑compliance means a failure by an approved provider to comply with 1 or more of the approved provider’s responsibilities under Part 4.1, 4.2 or 4.3 of the Act.

Note:          A number of expressions used in these Principles are defined in the Act, including the following:

(a)    disqualified individual;

(b)    key personnel.

Part 1A—Reasonable steps to ensure suitability of key personnel

22.3A  Purpose of Part (Act, s 63‑1A)

This Part sets out reasonable steps that an approved provider must take to ensure that none of its key personnel is a disqualified individual.

22.3B  Reasonable steps to be taken

(1) For subsection 63‑1A(2) of the Act, the following reasonable steps are specified:

(a)  for a person who is one of the approved provider’s key personnel at the date of commencement of this Part (the commencement date), the approved provider must, within 14 days of the commencement date, require the person to disclose in a signed statutory declaration whether he or she:

(i)  has been convicted of an indictable offence; or

(ii)  is an insolvent under administration;

(b)  for a person who proposes to become, or who has become, one of the approved provider’s key personnel after the commencement date, the approved provider must, in relation to the person:

(i)  seek (with the person’s written consent) a report about the person’s criminal conviction record from the Australian Federal Police; and

(ii)  conduct a search of bankruptcy records; and

(iii)  conduct previous employment and referee checks;

(c)  for each of the approved provider’s key personnel, the approved provider must:

(i)  ensure the person understands the obligations of key personnel and of approved providers under the Act in relation to disqualified individuals; and

(ii)  if the approved provider reasonably believes that the person may be mentally incapable of performing his or her duties as one of the approved provider’s key personnel—make arrangements for the person to be examined by a registered medical practitioner; and

(iii)  if the approved provider has ascertained that the person is a disqualified individual—ensure that the person ceases to be one of the approved provider’s key personnel;

(d)  if the approved provider reasonably believes that a person may be a disqualified individual—the approved provider may take any of the steps mentioned in paragraphs (a) and (b), or other appropriate steps, to ascertain if the person is a disqualified individual;

(e)  if the Secretary seeks information from the approved provider as to the steps taken by that approved provider to ensure that the person is not a disqualified individual—provide that information to the Secretary.

(2)  For paragraph (1)(a), a person is required to give the approved provider a signed statutory declaration within 14 days of being required to do so.

(3)  In subsection (1):

disqualified individual, indictable offence and insolvent under administration have the same respective meanings as in section 10A‑1 of the Act.

Part 2—Administration of sanctions

Division 1—Appointment of adviser instead of revocation of approval

22.4  Purpose of Division (Act, s 66‑2)

This Division sets out requirements concerning the appointment of a person as an adviser to an approved provider.

22.7  Decision on nomination

(1) Within 14 days after receiving a nomination by the approved provider under subsection 66A‑2(2) of the Act, the Secretary must, for the Commonwealth, approve, or refuse to approve, the appointment of the proposed adviser.

(2)  Before making a decision under subsection (1), the Secretary may require the proposed adviser to provide (either in writing or at a personal interview with an officer) a summary or description of the advice, or type of advice, that the proposed adviser proposes to give to the approved provider to assist the approved provider to comply with its responsibilities under the Act.

(3)  The Secretary may approve the appointment only if the Secretary is satisfied that:

(a)  the proposed adviser meets the eligibility criteria for appointment; and

(b)  the proposed adviser has a sufficient understanding of the issues that need to be addressed to remedy the non-compliance; and

(c)  there would be no conflict, affecting the delivery of care or other services, between the proposed adviser’s obligations as adviser and any other obligations of the proposed adviser; and

(d)  the proposed adviser has complied with any requirement under subsection (2).

(4)  Within 7 days after the Secretary makes a decision under subsection (1), the Secretary must tell the approved provider, in writing, of the decision.

(5)  If the Secretary’s decision is to refuse to approve the proposed appointment, the Secretary must also give the approved provider a written statement of the reasons for the decision.

(6)  A decision under subsection 22.7(1) to refuse to approve the proposed appointment is a reviewable decision under section 85-1 of the Act.

22.9  Nomination of another adviser

(1)  If the Secretary refuses to approve the appointment, the Secretary may ask the approved provider, in writing, to nominate someone else.

(2)  If the approved provider agrees to nominate someone else, the approved provider must, within 5 days after receiving the invitation:

(a)  nominate, in writing, another proposed adviser to the Secretary; and

(b)  give the Secretary written information about the proposed adviser to allow the Secretary to decide whether the proposed adviser meets the eligibility criteria for appointment.

(3)  Section 22.7 and this section apply to the nomination.

Division 2—Appointment of administrator instead of revocation of approval

22.10  Purpose of Division (Act, s 66‑2)

This Division sets out requirements concerning the appointment of a person as an administrator to an approved provider.

22.13  Decision on nomination

(1) Within 14 days after receiving a nomination by the approved provider under subsection 66A‑3(2) of the Act, the Secretary must, for the Commonwealth, approve, or refuse to approve, the appointment of the proposed administrator.

(2)  Before making the decision under subsection (1), the Secretary may require the proposed administrator to provide (either in writing or at a personal interview with an officer) a summary or description of the action that the proposed administrator proposes to take to remedy the approved provider’s non‑compliance with its responsibilities under the Act.

(3)  The Secretary may approve the appointment only if the Secretary is satisfied that:

(a)  the proposed administrator meets the eligibility criteria for appointment; and

(b)  the proposed administrator has a sufficient understanding of the issues that need to be addressed to remedy the non‑compliance; and

(c)  there would be no conflict, affecting the delivery of care or other services, between the proposed administrator’s obligations as administrator and any other obligations of the proposed administrator; and

(d)  the proposed administrator has complied with any requirement under subsection (2).

(4)  Within 7 days after the Secretary makes a decision under subsection (1), the Secretary must tell the approved provider, in writing, of the decision.

(5)  If the Secretary’s decision is to refuse to approve the proposed appointment, the Secretary must also give the approved provider a written statement of the reasons for the decision.

(6)  A decision under subsection 22.13(1) to refuse to approve the proposed appointment is a reviewable decision under section 85-1 of the Act.

22.15  Nomination of another administrator

(1)If the Secretary refuses to approve the appointment, the Secretary may ask the approved provider, in writing, to nominate someone else.

(2)  If the approved provider agrees to nominate someone else, the approved provider must, within 5 days after receiving the invitation:

(a)  nominate, in writing, another proposed administrator to the Secretary; and

(b)  give the Secretary written information about the proposed administrator to allow the Secretary to decide whether the proposed adviser meets the eligibility criteria for appointment.

(3)  Section 22.13 and this section apply to the nomination.

Part 3—Sanctions

Division 1—Sanction period

22.16  Purpose of Division (Act, s 68‑2)

This Division specifies the matters to which the Secretary must have regard in deciding on the length of a sanction period.

22.17  The matters

The matters are:

(a)  whether the non‑compliance is of a minor or serious nature; and

(b)  whether the non‑compliance has happened before, and, if so, how often; and

(c)  whether the non‑compliance threatens or threatened the health, welfare or interests of care recipients; and

(ca)  whether the non‑compliance would threaten the health, welfare or interests of future care recipients; and

(d)  whether the approved provider has failed to comply with any undertaking to remedy the non‑compliance; and

(e)  the period likely to be needed to establish whether any improvement in compliance can be sustained.

Division 2—Lifting of sanctions

22.18  Purpose of Division (Act, ss 68‑3 and 68‑4)

This Division specifies the matters to which the Secretary must have regard, and the requirements to be met, in deciding whether it is appropriate for a sanction to be lifted, and the requirements that must be met by an application to lift a sanction.

22.19  The matters

The matters to which the Secretary must have regard are:

(a)  the matters mentioned in section 22.17 of these Principles; and

(b)  whether any changes made by the approved provider are likely to result in a sustained improvement in the approved provider’s compliance with its responsibilities.

22.20  The application requirements

(1)  The application must provide details of the following matters:

(a)  what the approved provider has done to remedy the non‑compliance for which the sanction was imposed;

(b)  any assessment, carried out while the sanction has been in effect:

(i)  against the Accreditation Standards of the approved provider’s management systems, staffing and organisational development; or

(iii)  against the Home Care Standards of the home care services (if any) provided by the approved provider;

(c)  any consultations with staff, care recipients, or care recipients’ relatives about the non‑compliance;

(d)  the approved provider’s proposals for sustaining its compliance with its responsibilities.

(2)  In this section:

Accreditation Standards means the Accreditation Standards mentioned in Part 3 of the Quality of Care Principles 1997.

Home Care Standards means the Home Care Standards mentioned in Part 5 of the Quality of Care Principles 1997.

Endnotes

Endnote 1—Legislation history

This endnote sets out details of the legislation history of the Sanctions Principles 1997.

Title	Gazettal or FRLI registration date		Commencement date	Application, saving and transitional provisions
Sanctions Principles 1997	29 Sept 1997 (see Gazette 1997, No. S380)	1 Oct 1997
Sanctions Amendment Principles 2001 (No. 1)	19 Jan 2001 (see Gazette 2001, No. S28)	19 Jan 2001		s. 4
Sanctions Amendment Principles 2008 (No. 1)	19 Dec 2008 (see F2008L04695)	1 Jan 2009 (see s. 2)		—
Certification, Quality of Care and Sanctions Amendment Principles 2012	19 Oct 2012 (see F2012L02062)	20 Oct 2012		—
Sanctions Amendment (Various Measures) Principle 2013	11 July 2013 (see F2013L01346)	1 Aug 2013		—

Endnote 2—Amendment history

This endnote sets out the amendment history of the Sanctions Principles 1997.

ad. = added or inserted    am. = amended    rep. = repealed    rs. = repealed and substituted    exp. = expired or ceased to have effect
Provision affected	How affected
Part 1
s. 22.3...............................	rs. No. 1, 2001
Note to s. 22.3..................	rs. F2013L01346
Part 1A
Part 1A..............................	ad. No. 1, 2001
s. 22.3A............................	ad. No. 1, 2001
s. 22.3B............................	ad. No. 1, 2001
Part 2
Division 1
s. 22.4...............................	am. No. 1, 2001
ss. 22.5, 22.6....................	rep. No. 1, 2001
s. 22.7...............................	am. No. 1, 2001; F2013L01346
s. 22.8...............................	rep. No. 1, 2001
s. 22.9...............................	am. No. 1, 2001; F2013L01346
Division 2
s. 22.10.............................	am. No. 1, 2001
ss. 22.11, 22.12................	rep. No. 1, 2001
s. 22.13.............................	am. No. 1, 2001; F2013L01346
s. 22.14.............................	rep. No. 1, 2001
s. 22.15.............................	am. No. 1, 2001; F2013L01346
Part 3
Division 1
s. 22.17.............................	am. No. 1, 2008
Division 2
s. 22.20.............................	am. F2012L02062; F2013L01346

Endnote 3—Uncommenced amendments [none]

There are no uncommenced amendments.

Endnote 4—Misdescribed amendments [none]

There are no misdescribed amendments.