Boarding Houses Regulation 2013

This Regulation is the Boarding Houses Regulation 2013.

This Regulation commences on 1 July 2013 and is required to be published on the NSW legislation website.

In this Regulation—

additional needs resident, in relation to an assisted boarding house, means a resident of the boarding house who is a person with additional needs.

approved manager has the same meaning as in Part 4 of the Act.

authorised boarding house has the same meaning as in Part 4 of the Act.

authorised operator of an authorised boarding house has the same meaning as in Part 4 of the Act.

boarding house authorisation has the same meaning as in Part 4 of the Act.

boarding house licence has the same meaning as in Part 4 of the Act.

Note.

A boarding house licence is a licence granted for an assisted boarding house under Subdivision 2 of Division 2 of Part 4 of the Act.

business day means any day other than a Saturday, Sunday or a public holiday throughout New South Wales.

compliance notice has the same meaning as in Part 4 of the Act.

Note.

A compliance notice is a notice issued by the Director-General under section 79 of the Act to a person to remedy a contravention of a provision of Part 4 of the Act or regulations made for the purposes of that Part.

Department means the Department of Communities and Justice.

former licensed residential centre means premises that were a residential centre for handicapped persons licensed under the former Youth and Community Services Act 1973.

guardian of a resident means a person who is the guardian (within the meaning of the Guardianship Act 1987) of the resident.

interim permit has the same meaning as in Part 4 of the Act.

Note.

An interim permit is a permit granted for an assisted boarding house under Subdivision 3 of Division 2 of Part 4 of the Act.

licensed boarding house has the same meaning as in Part 4 of the Act.

Note.

Section 35 (1) of the Act defines licensed boarding house to mean the premises to which a boarding house licence relates.

manager approval has the same meaning as in Part 4 of the Act.

Note.

A manager approval is an approval granted by the Director-General under section 60 of the Act that authorises its holder to act as the manager of a specified assisted boarding house.

medication means any substance or preparation given with the intention of preventing, diagnosing, curing, controlling or alleviating disease or otherwise enhancing the physical or mental welfare of a person.

non-prescribed medication means medication other than prescribed medication.

person responsible for a resident means a person who is responsible for the resident within the meaning of Part 5 of the Guardianship Act 1987.

Note.

Under section 33A of the Guardianship Act 1987 a person responsible for another person includes the other person’s guardian, but only if the order or instrument appointing the person as guardian provides for the person to exercise the function of giving consent to the carrying out of medical or dental treatment.

prescribed medication means medication that has been prescribed for a person’s use by—

a medical practitioner, or

a nurse practitioner in accordance with the medication formulary approved by the Director-General of the Ministry of Health.

relevant approval means—

a manager approval, or

an authority to be a licensed manager in force at any time under the former Youth and Community Services Act 1973.

relevant authorisation means—

a boarding house authorisation, or

a licence or permit in force at any time under the former Youth and Community Services Act 1973.

screening tool—see clause 14.

serious criminal offence has the same meaning as in Part 4 of the Act.

staff member of an assisted boarding house has the same meaning as in Part 4 of the Act.

the Act means the Boarding Houses Act 2012.

Note.

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

Any other term or expression used in this Regulation that is defined for the purposes of Part 4 of the Act has the same meaning as in Part 4 of the Act.

Note.

Section 4 (1) of the Act also defines certain other terms and expressions used in this Regulation, including the following—

assisted boarding house

Commissioner

Director-General

general boarding house

manager

person with additional needs

registrable boarding house

regulated assisted boarding house

Notes included in this Regulation do not form part of this Regulation.

Particulars of any enforcement action taken in respect of registrable boarding houses or their proprietors or staff (including any action taken under Part 4 of the Act) that are recorded in the Register of Boarding Houses are prescribed for the purposes of section 14 (1) (d) of the Act.

Each of the following additional probity checks is prescribed for the purposes of section 45 (2) (f) of the Act—

a check as to any previous enforcement action taken under the Act or former Youth and Community Services Act 1973 against the applicant or close associate of the applicant in connection with a relevant authorisation that is or was held by the applicant or close associate,

a check of any referees nominated by the applicant for the boarding house licence.

Note.

Section 45 (2) of the Act also requires the following application probity checks to be carried out in relation to an application for a boarding house licence for an assisted boarding house—

criminal record checks of the applicant, a proposed approved manager and any proposed staff members of the proposed licensed boarding house,

if the applicant is not a natural person—criminal record checks of any person involved in the control or management of the applicant (such as a chief executive officer, director or majority shareholder of a corporation),

if the applicant makes the application on behalf of an unincorporated body—criminal record checks of any partner or member of the management committee or other office holder of the body,

a criminal record check of any other close associate of the applicant that may be required by the Director-General,

a check of the financial capacity of the applicant and the applicant’s close associates to operate the proposed assisted boarding house.

Boarding house licences The Director-General may refuse to grant a boarding house licence to an applicant if—

a previous application by the applicant for a relevant authorisation was refused, or

a relevant authorisation previously held by the applicant was cancelled, revoked or suspended, or

the Director-General is satisfied that the applicant would not, if granted the relevant authorisation, be able to comply with any condition that would be imposed on the authorisation under Division 4.

Note.

Section 46 (2) and (3) of the Act provides for other grounds on which an application for a boarding house licence may or must be refused.

Interim permits The Director-General may refuse to grant a interim permit to an applicant if—

a previous application by the applicant for a relevant authorisation was refused, or

a relevant authorisation previously held by the applicant was cancelled, revoked or suspended, or

the Director-General is of the opinion that—

the applicant or a close associate of the applicant is not a suitable person to be involved in the management or operation of an assisted boarding house, or

the applicant does not have (or is unlikely to have) the financial capacity to operate the proposed licensed boarding house, or

the applicant or a close associate of the applicant has committed a serious criminal offence.

Manager approvals The following grounds are prescribed for the purposes of section 61 (2) (b) of the Act—

a previous application by the applicant for a relevant approval was refused, or

a relevant approval previously held by the applicant was cancelled, revoked or suspended, or

the applicant or a close associate of the applicant has committed a serious criminal offence.

Note.

Section 61 (2) (a) of the Act also provides that the Director-General may refuse to grant a manager approval if the Director-General is of the opinion that the applicant is not a suitable person to be involved in the management of an assisted boarding house.

Relationship with Act The grounds specified under this clause are additional to the other grounds provided by the Act for the refusal of an application for a boarding house authorisation or manager approval.

It is a condition of a boarding house authorisation that the authorised operator ensures that accommodation, staffing and services provided by or at the authorised boarding house are provided in accordance with the standards specified in Schedule 1 that are applicable to the authorised boarding house.

It is a condition of a boarding house authorisation that is a pre-existing authorised assisted boarding house (within the meaning of clause 5 of Schedule 1) that the requirements of clause 5 (4)–(6) of that Schedule are met.

The following additional particulars are prescribed for the purposes of section 9 (1) (i) of the Act—

the telephone number and email address, if any, of the manager (if any) of the registrable boarding house,

the telephone number, email address and website address, if any, of the registrable boarding house,

the local government area in which the registrable boarding house is located,

the telephone number and email address, if any, of each proprietor of the registrable boarding house,

the maximum number of fee-paying residents who can be accommodated in the registrable boarding house,

the method or methods for calculating charges for fee-paying residents and the fee amounts payable,

the methods of payment used by fee-paying residents (including cash payments, credit cards, cheques, direct bank debits, money orders, BPay and Australia Post),

the kinds of services provided to any residents (including accommodation, meals and personal care services),

whether the registrable boarding house has special provisions for physical access and, if so, the kind of provisions provided,

the numbers of residents who fit into each of the following categories (to the extent that it is reasonably practicable to ascertain this information)—

males,

females,

elderly persons (that is, persons 60 years of age or more),

students of tertiary institutions,

persons who are mentally ill persons within the meaning of the Mental Health Act 2007,

persons who have a disability (however arising and whether or not of a chronic episodic nature) that is attributable to an intellectual, psychiatric, sensory, physical or like impairment or to a combination of such impairments,

persons with significant health problems,

persons needing assistance with daily tasks and personal care.

In this clause—

fee-paying resident means a person who resides at the registrable boarding house for a fee or reward.

The Director-General may, by order published in the Gazette, approve kinds of matters or circumstances (or combinations of matters or circumstances) that may be used to establish that an individual is a person with additional needs.

The kinds of matters or circumstances (or combinations of matters or circumstances) approved under this clause must not be inconsistent with the requirements of the definition of person with additional needs in section 36 (1) of the Act.

A person or body may, for the purposes of the Act, use the existence or presence of kinds of matters or circumstances (or a combination of matters or circumstances) approved under this clause to establish that an individual is a person with additional needs.

An application for a boarding house authorisation or manager approval must be accompanied by—

in the case of an application for a boarding house authorisation—information to demonstrate to the satisfaction of the Director-General that the applicant—

has the capacity and experience to provide appropriate accommodation and services to additional needs residents of assisted boarding houses, and

has the capacity to exercise overall supervision of an assisted boarding house, and

particulars about any relevant authorisation or relevant approval held by the applicant or a close associate of the applicant that has been previously cancelled, revoked or suspended or a previous application for such an authorisation or approval that has been refused.

The information required to be provided under this clause is additional to the other information required to be provided under the Act.

The Director-General may revoke an interim permit if the Director-General is of the opinion that the interim permit holder has contravened any provision of the Act or this Regulation (whether or not the interim permit holder has been convicted of an offence for the contravention).

The ground specified under this clause is additional to the other grounds provided by the Act for the revocation of an interim permit.

The conditions specified in this Division are prescribed for the purposes of section 43 (1) (a) of the Act as conditions of boarding house authorisations.

Note.

Section 43 (5) of the Act makes it an offence for an authorised operator of an assisted boarding house to contravene a condition of the boarding house authorisation for the boarding house. The maximum penalty for such an offence is—

in the case of a corporation—40 penalty units (currently, $4,400) and in addition, for a continuing offence, 10 penalty units (currently, $1,100) for each day the offence continues, and

in any other case—20 penalty units (currently, $2,200) and in addition, for a continuing offence, 5 penalty units (currently, $550) for each day the offence continues.