1Short title
This Act may be cited as the Aged Care (Accommodation Payment Security) Act 2006.
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Bill homepage (APH)This Act may be cited as the Aged Care (Accommodation Payment Security) Act 2006.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 6 April 2006 |
2. Sections 3 to 22 | At the same time as Schedule 5 to the Aged Care Amendment (2005 Measures No. 1) Act 2006 commences. | 31 May 2006 |
This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The following is a simplified outline of this Act and some related material:
In certain circumstances, the Commonwealth will pay to a person an amount that the Secretary considers is equal to an accommodation payment balance, and interest, owed to the person by a registered provider or former registered provider (see sections 10, 12, 13 and 16).
Any rights that a person who is paid such an amount had to recover the amount from a registered provider or former registered provider are transferred to the Commonwealth (see section 15).
The Commonwealth may recoup certain costs it incurs from other registered providers (see sections 18 and 19 and the Aged Care (Accommodation Payment Security) Levy Act 2006).
This Act applies in all the States and Territories.
However, this Act does not apply in any external Territory, except Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to be prosecuted for an offence.
In this Act:
accommodation bond has the same meaning as in the Aged Care Act 2024.
accommodation bond balance has the same meaning as in the Aged Care Act 2024.
accommodation payment balance means:
a refundable deposit balance; or
an accommodation bond balance; or
an entry contribution balance; or
an unregulated lump sum balance.
administrative costs, in relation to a default event declaration, means costs incurred by the Commonwealth in relation to, and as the result of, the making of the default event declaration and includes, but is not limited to, costs incurred by the Commonwealth as a result of:
making any insolvency event declaration under section 7 that enabled the making of the default event declaration; and
giving notice of such an insolvency event declaration under section 8; and
giving notice of the default event declaration under section 11; and
determining matters under section 12 that were required to be determined as a result of the making of the default event declaration; and
making any refund declarations under section 13 that were required to be made as a result of the making of the default event declaration; and
making any refund declarations under section 13A that were permitted to be made as a result of the making of the default event declaration; and
giving notice of those refund declarations under section 14; and
attempting to recover amounts that the Commonwealth gained the right to recover under section 15 as a result of the making of those refund declarations; and
making refund costs recoupment determinations under section 18 relating to those refund declarations; and
recovering levy that the Commonwealth was enabled, as a result of the making of those refund costs recoupment determinations, to impose by regulations made under section 6 of the Aged Care (Accommodation Payment Security) Levy Act 2006.
administrative costs recoupment determination means a determination made under section 19.
aged care service has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
approved provider has the same meaning as in the Aged Care Quality and Safety Commission Act 2018.
approved residential care home has the same meaning as in the Aged Care Act 2024.
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
corporation means a trading or financial corporation within the meaning of paragraph 51(xx) of the Constitution.
default event declaration means a declaration made under section 10.
entry, in relation to a person and an aged care service, has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
entry contribution has the same meaning as in the Aged Care Act 2024.
entry contribution balance has the same meaning as in the Aged Care Act 2024.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
flexible care has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
flexible care service has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
formal agreement has the same meaning as in the rules made under the Aged Care (Consequential and Transitional Provisions) Act 2024.
funded aged care service has the same meaning as in the Aged Care Act 2024.
insolvency event: each of the following events is an insolvency event that may occur in relation to a person who is or has been a registered provider (the registered provider or former registered provider):
a CGT event G3 (within the meaning of the Income Tax Assessment Act 1997) in respect of shares or financial instruments of the registered provider or former registered provider;
the making of an order:
under section 459A or 459B of the Corporations Act 2001; or
under a provision of the law of a State, or Territory, which deals with the incorporation of associations;
that the registered provider or former registered provider be wound up in insolvency;
the passing of a special resolution:
under section 491 of the Corporations Act 2001; or
under a provision of the law of a State, or Territory, which deals with the incorporation of associations;
that the registered provider or former registered provider be wound up voluntarily;
the passing of a resolution under paragraph 439C(c) of the Corporations Act 2001 by the creditors of the registered provider or former registered provider that the registered provider or former registered provider be wound up;
the making of a sequestration order against the estate of the registered provider or former registered provider;
the acceptance of a debtor’s petition (within the meaning of the Bankruptcy Act 1966) against the registered provider or former registered provider by an Official Receiver (within the meaning of that Act);
the making of an insolvency event declaration in relation to the registered provider or former registered provider (see section 7);
the making of a debt agreement (within the meaning of the Bankruptcy Act 1966) to which the registered provider or former registered provider is a party in the capacity of a debtor;
the execution of a personal insolvency agreement (within the meaning of the Bankruptcy Act 1966) by the registered provider or former registered provider in the capacity of a debtor.
insolvency event declaration means a declaration made under section 7.
national newspaper means a newspaper circulating generally throughout Australia.
outstanding accommodation payment balance has the meaning given by subsection (2).
refundable deposit balance has the same meaning as in the Aged Care Act 2024.
refund amount, in relation to a refund declaration, means the amount that the refund declaration declares is to be paid by the Commonwealth.
refund costs recoupment determination means a determination made under section 18.
refund declaration means a declaration made under section 13 or 13A.
refund recipient, in relation to a refund declaration, means the person that the refund declaration declares is to be paid an amount by the Commonwealth.
registered provider has the same meaning as in the Aged Care Act 2024.
residential care has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
residential care service has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
respite care has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
Secretary means the Secretary of the Department.
unregulated lump sum has the meaning given by subsection (3).
unregulated lump sum balance, in relation to an unregulated lump sum is, at a particular time, an amount equal to the difference between:
the amount of the unregulated lump sum; and
any amounts that have been, or are permitted to be, deducted at that time under the agreement under which the unregulated lump sum was paid.
Outstanding accommodation payment balance
For the purposes of this Act, an accommodation payment balance is an outstanding accommodation payment balance at a particular time of a person who is or has been a registered provider if:
at that time all, or part, of the accommodation payment balance has not been refunded; and
in relation to a refundable deposit balance—that time is later than the time required for payment of the balance to be refunded by the person under section 311 of the Aged Care Act 2024; and
in relation to an accommodation bond balance or entry contribution balance—that time is later than the time required for the balance to be refunded by the person under:
for accommodation bond balances—the rules made under the Aged Care Act 2024; or
for entry contribution balances—a formal agreement applying in respect of the balance; and
in relation to an unregulated lump sum—that time is later than the earlier of the following:
the start of the first day on which the person (the unregulated lump sum holder) to whom the amount was paid is obliged, under the agreement under which it was paid, to refund the amount or part of the amount;
the end of a period of 14 days beginning immediately after the day on which the individual in relation to whose entry to a residential care service or flexible care service the amount of the unregulated lump sum was paid ceased accessing relevant funded aged care services for the unregulated lump sum (see subsection 2A).
For the purposes of subparagraph 6(2)(c)(ii), relevant funded aged care services for an unregulated lump sum means funded aged care services:
delivered by the registered provider that holds the unregulated lump sum; and
delivered in an approved residential care home, being the approved residential care home that was, immediately before the commencement of the Aged Care Act 2024, the place of the residential care service or flexible care service in relation to which the unregulated lump sum was paid.
What is an unregulated lump sum?
An unregulated lump sum is an amount of money paid to a person (the unregulated lump sum holder) in the following circumstances:
the amount is paid to the unregulated lump sum holder by a care recipient under a written agreement for the care recipient’s entry to:
a residential care service through which residential care other than respite care is, or is to be, provided by the unregulated lump sum holder; or
a flexible care service through which flexible care is, or is to be, provided by the unregulated lump sum holder;
the amount does not accrue daily;
under the agreement, the amount, or part of the amount, must be refunded to the care recipient if the unregulated lump sum holder ceases to provide residential care or flexible care (as the case requires) to the care recipient;
the unregulated lump sum holder was an approved provider immediately before 1 January 2009;
the amount was paid to the unregulated lump sum holder before 1 January 2009 and before the unregulated lump sum holder began to be an approved provider;
the amount is not an entry contribution;
the care recipient did not cease to be provided with residential care through the residential care service, or flexible care through the flexible care service (as the case requires), after the amount was paid but before the unregulated lump sum holder began to be an approved provider.
The expressions used in this section have the same meanings as in the Aged Care Act 1997: see section 6A of this Act. Unregulated lump sums cannot be paid under the Aged Care Act 2024, but agreements may still be in force after that Act commences. Unregulated lump sums paid under these agreements may relate to approved providers that are deemed to be registered providers because of the operation of the Aged Care (Consequential and Transitional Provisions) Act 2024 and may therefore form part of an outstanding accommodation payment balance.
An expression used in a provision of this Act and in the Aged Care Act 1997 has the same meaning in that provision as it had in that Act immediately before the commencement of the Aged Care Act 2024.
A reference in this Act to a former registered provider, or to a person who has been a registered provider, is taken to include a reference to a former approved provider.
Subsections (1) and (2) are subject to a contrary intention.
The Minister may make an insolvency event declaration in relation to a person who is or has been a registered provider if:
the person is a Chapter 5 body corporate (within the meaning of the Corporations Act 2001); and
there is at least one outstanding accommodation payment balance of the person.
A person that is a body that is incorporated under a law of a State or Territory may be a Chapter 5 body corporate within the meaning of the Corporations Act 2001.
The insolvency event declaration must be in writing.
An insolvency event declaration is not a legislative instrument.
The Secretary must give a copy of an insolvency event declaration to the person to whom the insolvency event declaration relates.
A failure to comply with subsection (1) does not affect the validity of any insolvency event declaration.
If:
a person is a registered provider; and
any of the events mentioned in paragraph (a), (b), (c), (d), (e), (f), (h) or (i) of the definition of insolvency event occur in relation to the person;
the person must notify the Secretary the first time that the event occurs.
If:
a person has been, but is no longer, a registered provider; and
any of the events mentioned in paragraph (a), (b), (c), (d), (e), (f), (h) or (i) of the definition of insolvency event occur in relation to the person; and
there was at least one outstanding accommodation payment balance of the person at the time the event occurs;
the person must notify the Secretary the first time that the event occurs.
The notification under subsection (1) or (2) must be given in writing by the end of the first business day after the day on which the event occurs.
A person commits an offence if the person refuses or fails to comply with a requirement under this section.
Penalty: 30 penalty units.
As soon as practicable after the Secretary first becomes aware that:
an insolvency event has occurred in relation to a person who is or has been a registered provider (the registered provider or former registered provider); and
there is at least one outstanding accommodation payment balance of the registered provider or former registered provider;
the Secretary must make a default event declaration.
The default event declaration must:
be in writing; and
state that an insolvency event has occurred in relation to the registered provider or former registered provider; and
state that the Secretary considers that there is at least one outstanding accommodation payment balance of the registered provider or former registered provider.
A default event declaration is not a legislative instrument.
The Secretary must give a copy of a default event declaration to:
the registered provider or former registered provider in relation to which the declaration states an insolvency event has occurred; and
each person whom the Secretary considers may be entitled to receive a refund of an outstanding accommodation payment balance of the registered provider or former registered provider.
The Secretary must publish a copy of a default event declaration in a national newspaper.
A failure to comply with subsection (1) or (2) does not affect the validity of any default event declaration.
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