Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section applies if the Secretary or * Quality and Safety Commissioner believes, on reasonable grounds, that an approved provider:
(a) has not refunded, or is unable or unlikely to be able to refund, a * refundable deposit balance or an * accommodation bond balance; or
(b) is experiencing financial difficulties; or
(c) has used a * refundable deposit or an * accommodation bond for a use that is not * permitted.
(2) The Secretary or * Quality and Safety Commissioner may request the approved provider to give the Secretary or Commissioner information or documents specified in the request relating to any of the following:
(a) the approved provider's suitability to be a provider of * aged care;
(b) the approved provider's financial situation;
(c) the amount of one or more * refundable deposit balances or * accommodation bond balances at a particular time;
(d) how * refundable deposits or * accommodation bonds have been used by the approved provider;
(da) the use of a refundable deposit or accommodation bond by the approved provider to make a loan;
(e) the approved provider's policies and procedures relating to managing, monitoring and controlling the use of refundable deposits and accommodation bonds;
(f) the roles and responsibilities of * key personnel in relation to managing, monitoring and controlling the use of refundable deposits and accommodation bonds.
The request must be in writing.
(2A) Without limiting paragraph (2)(da), the following kinds of information or documents may be specified in a request relating to the use of a * refundable deposit or * accommodation bond by an approved provider to make a loan:
(a) a copy of the agreement relating to the loan that has been executed, or entered into, by the parties to the agreement;
(c) details of any security in respect of the loan;
(d) details of the term or life of the loan;
(e) details of the rate of interest payable on the loan;
(f) evidence that the rate of interest payable on the loan has been set on a commercial basis;
(g) details of the loan repayments (including the amounts and frequency of those repayments);
(h) details of any review of the loan that must or may be conducted;
(i) details of any other conditions or terms of the loan;
(j) details of the commercial basis of the loan;
(k) evidence of the use of the money loaned;
(l) a copy of the financial statements (however described) of the borrower (including any such statements that have been audited);
(m) any other information or documents relating to the loan.
(3) The Secretary or * Quality and Safety Commissioner may request the approved provider to give the specified information or documents on a periodic basis.
(4) The approved provider must comply with the request:
(a) within 28 days after the request was made, or within such shorter period as is specified in the request; or
(b) if the information or documents are to be given on a periodic basis--before the time or times worked out in accordance with the request.
Note: Approved providers have a responsibility under Part 4.3 to comply with this obligation. Failure to comply with a responsibility can result in a sanction being imposed under Part 7B of the * Quality and Safety Commission Act.
(5) An approved provider commits an offence if:
(a) the Secretary or * Quality and Safety Commissioner requests the approved provider to give information or documents under subsection (2); and
(b) the approved provider is required under subsection (4) to comply with the request within a period or before a particular time; and
(c) the approved provider fails to comply with the request within the period or before the time; and
(d) the approved provider is a * corporation.
(5A) Strict liability applies to subsection (5).
(5B) Subsection (5) does not apply if the information or documents requested under subsection (2) are not in the possession, custody or control of the approved provider.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code .
(6) The request must contain a statement setting out the effect of subsections (4) and (5).
(7) If the operation of this section would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(8) If the Commonwealth and the person do not agree on the
amount of the compensation, the person may institute proceedings in the
Federal Court of Australia, or the Supreme Court of a State or Territory, for
the recovery from the Commonwealth of such reasonable amount of compensation
as the court determines.