An Act relating to hearing services
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Hearing
Services Administration Act 1997.
2
Commencement [see
Note 1]
This Act commences on the day on which
it receives the Royal Assent.
3
Simplified outline
The following is a simplified outline of
this Act:
• This
Act sets up a scheme under which hearing services are provided to voucher‑holders
by contracted service providers.
• The
Minister may determine that specified persons are participants in the
voucher system.
• Vouchers
may be issued to participants in the voucher system.
• The
Minister may accredit service providers and engage accredited service providers
to provide hearing services to voucher‑holders.
4
Definitions
In this Act, unless the contrary
intention appears:
accreditation means accreditation under the
accreditation scheme.
accreditation scheme means the scheme in
force under section 15.
accredited service provider means an entity
accredited under the accreditation scheme.
AHS means Australian Hearing Services.
available, in relation to a hearing service,
has the meaning given by section 13.
Australian permanent resident means a person
in Australia whose presence in Australia is not subject to any limitation as to
time imposed by law.
contracted service provider means an
accredited service provider engaged under section 20.
data processing device means any article or
material (for example, a disk) from which information is capable of being
reproduced, with or without the aid of any other article or device.
eligible person has the meaning given by
clause 5.
entity means:
(a) an individual; or
(b) a body corporate; or
(c) a partnership; or
(d) an authority of the Commonwealth,
a State or a Territory; or
(e) a Department of the Government of
the Commonwealth, a State or a Territory.
hearing services means:
(a) services for purposes in
connection with:
(i) hearing
rehabilitation; or
(ii) assessment of hearing;
or
(iii) hearing loss
prevention; or
(b) goods for purposes in connection
with:
(i) hearing
rehabilitation; or
(ii) assessment of hearing;
or
(iii) hearing loss
prevention.
participant in the voucher system has the
meaning given by section 13.
rules of conduct means rules of conduct
formulated under section 17.
voucher means a voucher issued under section 10.
voucher‑holder means a participant in
the voucher system who holds a voucher.
voucher rules means rules formulated under
section 11.
5
Eligible persons
(1) For the purposes of this Act, a person is
an eligible person if the person:
(a) has reached the age of 21 years;
and
(b) is an Australian citizen or an
Australian permanent resident; and
(c) is covered by one of the
categories specified in subsection (2).
(2) The following categories are specified
for the purposes of paragraph (1)(c):
(a) a person who holds a card issued
by the Commonwealth and known as a Pensioner Concession Card;
(b) a person who:
(i) holds a card issued by
the Commonwealth and known as a Health Care Card; and
(ii) holds that card
because the person is in receipt of sickness allowance under the Social
Security Act 1991;
(c) a person who holds a card issued
by the Commonwealth and known as a Repatriation Health Card, where the card is
expressed to be issued for all conditions;
(d) a person who, for purposes
connected with obtaining treatment for an injury, disease or condition that
involves hearing loss, holds a card issued by the Commonwealth and known as a
Repatriation Health Card, where the card is expressed to be issued for specific
conditions;
(f) a member of the Australian
Defence Force;
(g) a person referred to the Minister
in connection with the provision of a service under a rehabilitation program
under Part III of the Disability Services Act 1986.
(3) The Minister may, by writing, determine
that a specified person is an eligible person for the purposes of
this Act. The determination has effect accordingly.
Note: For specification by class, see subsection 46(2)
of the Acts Interpretation Act 1901.
(4) A
determination under subsection (3) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
6
Crown to be bound
(1) This Act binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory and of
the Northern Territory.
(2) This Act does not make the Crown liable
to be prosecuted for an offence.
(3) The protection in subsection (2)
does not apply to an authority of the Crown.
6A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
7
Continuity of partnerships
For the purposes of this Act, a change
in the composition of a partnership does not affect the continuity of the
partnership.
8
General criteria for administration of this Act
(1) In administering this Act, due regard
must be had to:
(a) the limited resources available to
provide services and programs under this Act; and
(b) the need to consider equity and
merit in accessing those resources.
(2) In this
section:
this Act includes:
(a) the voucher rules; and
(b) the accreditation scheme; and
(c) the rules of conduct.
Part 2—Issue of vouchers to participants in the voucher system
Division 1—Simplified outline
9
Simplified outline
The following is a simplified outline of
this Part:
• Vouchers
may be issued to participants in the voucher system.
• The
Minister may make rules relating to vouchers. The rules are to be known as the voucher
rules.
• The
Minister may determine that specified persons are participants in the
voucher system.
• The
Minister may determine that specified hearing services are available
to a voucher‑holder under a voucher.
Division 2—Issue of vouchers by the Minister
10
Issue of vouchers by the Minister
The Minister has the function of issuing
vouchers to participants in the voucher system.
Note: Participant in the voucher system is
defined by section 13.
11
Voucher rules
(1) The Minister may, by written instrument,
formulate rules relating to vouchers. The rules are to be known as the
voucher rules.
(2) The voucher rules may make provision for
the following:
(a) the duration of vouchers;
(b) the replacement of vouchers.
(3) The voucher rules may make provision for
or in relation to a matter by conferring a power on the Minister.
(4) Subsections (2) and (3) do not, by
implication, limit subsection (1).
(5) Rules under subsection (1) are
disallowable instruments for the purposes of section 46A of the Acts
Interpretation Act 1901.
12
Vouchers do not have effect before 1 July 1997
A voucher does not have effect before 1 July 1997.
Division 3—Participants in the voucher system
13
Participants in the voucher system
(1) The Minister may, by writing, determine
that:
(a) each eligible person included in a
specified class of eligible persons is a participant in the voucher
system for the purposes of this Act; and
(b) in the event that the Minister
issues a voucher to such a person during a specified period, one or more
specified hearing services are available to the person under the
voucher.
(2) The specification of a hearing service
may be expressed to be subject to such conditions as are specified in the
determination.
(3) A determination under this section has
effect accordingly.
(4) A determination under this section is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Part 3—Service providers
Division 1—Simplified outline
14
Simplified outline
The following is a simplified outline of
this Part:
• The
Minister must formulate an accreditation scheme for the
accreditation of entities as service providers.
• The
Minister may accredit entities as service providers under the accreditation
scheme. The accreditation may be subject to conditions. An entity accredited by
the Minister is to be known as an accredited service provider.
• The
Minister may engage an accredited service provider to provide available hearing
services to voucher‑holders. A service provider engaged by the Minister
is to be known as a contracted service provider.
• The
Minister must formulate rules of conduct that apply to contracted
service providers in relation to the provision of hearing services to voucher‑holders.
Division 2—Accreditation
15
Accreditation of service providers
(1) The Minister must, by written instrument,
formulate a scheme for the accreditation of entities as service providers. The
scheme is to be known as the accreditation scheme.
Note 1: Entity is defined by section 4.
Note 2: Accreditation means that the entity is eligible
to be engaged as a contracted service provider under section 20.
(2) The accreditation scheme must empower the
Minister to make decisions:
(a) accrediting entities; and
(b) cancelling the accreditation of
entities.
(3) The accreditation scheme may make
provision for fees to be charged in respect of the making of applications under
the scheme.
(4) The accreditation scheme may make
provision for an entity to surrender its accreditation to the Minister.
(5) The accreditation scheme must make
provision for and in relation to the keeping of a register by the Minister of
entities accredited under the accreditation scheme. In particular, the
accreditation scheme may make provision for the following:
(a) the register to be kept in such
form and manner as the Minister directs;
(b) persons to inspect the register;
(c) persons to obtain information
contained in the register;
(d) fees to be charged for such an
inspection or providing such information.
(6) Subsections (2), (3), (4) and (5) do
not, by implication, limit subsection (1).
(7) The Minister must give a free copy of the
accreditation scheme to any person who requests a copy.
(8) An instrument under subsection (1)
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
16
Conditions of accreditation
(1) The accreditation scheme must empower the
Minister to accredit an entity subject to one or more conditions specified in
the instrument of accreditation. The accreditation scheme may also empower the
Minister to:
(a) impose one or more further
conditions to which the accreditation is subject; and
(b) revoke or vary any condition:
(i) specified in the
instrument of accreditation; or
(ii) imposed under paragraph (a).
(2) A condition may be expressed to have
effect only if the entity is engaged under section 20.
(3) A condition of an accreditation may make
provision for or in relation to a matter by conferring a power on the Minister.
(4) The accreditation scheme may empower the
Minister to make a decision cancelling the accreditation of an entity if the
entity contravenes a condition of the accreditation. This subsection does not,
by implication, limit paragraph 15(2)(b).
(5) The accreditation scheme may empower the
Minister to issue a formal warning if an entity contravenes a condition of its
accreditation.
(6) Subsections (2), (3), (4) and (5) do
not, by implication, limit subsection (1).
17 Rules of conduct
(1) The Minister must, by written instrument,
formulate rules of conduct relating to the provision of hearing services to
voucher‑holders.
(2) Rules of
conduct have effect only for the purposes of section 18.
Note: Section 18 provides that compliance with
rules of conduct is a condition of an entity’s accreditation.
(3) Rules of conduct may make provision for
or in relation to a matter by conferring a power on the Minister.
(4) Rules of conduct may prohibit or regulate
the charging of fees or other consideration payable by a voucher‑holder,
where the fee or consideration is in respect of the provision by an accredited
service provider of a hearing service that is available to the holder under the
voucher.
(5) Rules of conduct may require an
accredited service provider to:
(a) take all reasonable steps to
ensure that each individual who (whether in the capacity of employee or
otherwise) works, or is to work, for the service provider in the provision of
specified hearing services to voucher‑holders holds such qualifications
as are ascertained in accordance with the rules; and
(b) inform the Minister of the names
and qualifications of those individuals.
(6) Subsections (3), (4) and (5) do not,
by implication, limit subsection (1).
(7) An instrument under subsection (1)
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
18
Compliance with rules of conduct
(1) In addition to the conditions to which an
entity’s accreditation is subject under the accreditation scheme, the
accreditation is subject to the condition mentioned in subsection (2).
(2) It is a condition of the accreditation of
an entity that the entity must comply with the rules of conduct.
(3) The condition mentioned in subsection (2)
has effect only if the entity is a contracted service provider.
(4) This section does not, by implication,
limit the generality of section 16 (which deals with conditions under the
accreditation scheme).
19
Disqualification for fraud, dishonesty etc.
(1) The Minister must not accredit an
individual or a body corporate under the accreditation scheme at a particular
time if the individual or body corporate is a disqualified person at that time.
Note: Disqualified person is defined
by subsection (5).
(2) The Minister must not accredit a body
corporate under the accreditation scheme at a particular time if any of the
following individuals is a disqualified person at that time:
(a) a director of the body corporate;
(b) a secretary of the body corporate;
(c) a person (by whatever name called
and whether or not a director of the body corporate) who is concerned in, or
takes part in, the management of the body corporate.
Note: Disqualified person is defined
by subsection (5).
(3) The Minister must not accredit a
partnership under the accreditation scheme at a particular time if:
(a) in a case where a partner is an
individual—the partner is a disqualified person at that time; or
(b) in a case where a partner is a
body corporate—any of the following individuals is a disqualified person at
that time:
(i) a director of the body
corporate;
(ii) a secretary of the
body corporate;
(iii) a person (by whatever
name called and whether or not a director of the body corporate) who is concerned
in, or takes part in, the management of the body corporate.
Note: Disqualified person is defined
by subsection (5).
(4) The Minister must cancel the
accreditation of an entity under the accreditation scheme at a particular time
if, assuming that the entity had not been accredited at that time, the Minister
would have been prevented by this section from accrediting the entity at that
time.
(5) For the purposes of this section, a
person is a disqualified person at a particular time if:
(a) the person has been convicted
(whether before or after the commencement of this section) of a disqualifying
offence (as defined by subsection (6)); and
(b) if the person was sentenced to
imprisonment—the time occurs during the period:
(i) beginning when the person
was convicted; and
(ii) ending 5 years after
the person’s release from prison; and
(c) if the person was not sentenced to
imprisonment—the time occurs during the period:
(i) beginning when the
person was convicted; and
(ii) ending 5 years after
the conviction.
(6) For the purposes of this section, each of
the following offences is a disqualifying offence:
(a) an offence against section 136.1,
137.1 or 137.2 of the Criminal Code in respect of a statement that is
made to a person who is exercising powers or performing functions under, or in
connection with, subsection 21(2) of this Act;
(b) an offence that:
(i) is an offence against
a law of the Commonwealth, a State, a Territory or a foreign country; and
(ii) involves fraud or
dishonesty; and
(iii) is punishable by
imprisonment for life or for a period, or maximum period, of at least 2 years.
(7) A reference in this section to a conviction
of a person of an offence includes a reference to the making of an order under
section 19B of the Crimes Act 1914, or under a corresponding
provision of a law of a State, a Territory or a foreign country, in relation to
a person in respect of an offence.
Note: Section 19B of the Crimes Act 1914
empowers a court that has found a person to have committed an offence to take
action without proceeding to record a conviction.
(8) This section does not, by implication,
limit the generality of sections 15 and 16 (which deal with the
accreditation scheme).
(9) This section does not affect the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions relieving persons from requirements to disclose convictions).
Division 3—Contracted service providers
20
Contracted service providers
(1) The Minister may, on behalf of the
Commonwealth, engage an accredited service provider to provide hearing services
to voucher‑holders, where each hearing service is available to the holder
under the voucher. An accredited service provider engaged under this section is
to be known as a contracted service provider.
(2) The terms and conditions of the
engagement are to be set out in a written agreement between the Minister (on
behalf of the Commonwealth) and the contracted service provider. The terms and
conditions must be consistent with the accreditation scheme and the rules of
conduct.
(3) Each condition of the accreditation of
the contracted service provider is taken to be a condition of the engagement.
This subsection does not limit subsection (2).
(4) The cancellation or surrender of the
accreditation of the contracted service provider terminates the engagement
without giving the service provider any entitlement to compensation or damages.
This subsection does not limit subsection (2).
(5) AHS may enter into an agreement under
this section at any time after the commencement of this section.
21
Payments to contracted service providers
(1) An agreement under section 20 may
provide for amounts to be paid by the Commonwealth to a contracted service
provider. This subsection does not limit subsection 20(2).
(2) A payment referred to in subsection (1)
must not be paid unless:
(a) a claim for the payment is given
to the claims acceptance body; and
(b) the claims acceptance body accepts
the claim on behalf of the Commonwealth.
(3) The claims acceptance body may authorise
a claim for payment to be given to the claims acceptance body in accordance
with specified software requirements:
(a) on a specified kind of data
processing device; or
(b) by way of a specified kind of
electronic transmission.
(4) A payment referred to in subsection (1)
may be made by the claims payment body on behalf of the Commonwealth.
(6) The Minister may, by writing, declare
that a specified body is the claims acceptance body for the
purposes of this section. The declaration has effect accordingly.
(7) The Minister may, by writing, declare
that a specified body is the claims payment body for the purposes
of this section. The declaration has effect accordingly.
(8) This section does not prevent the claims
acceptance body from being the same body as the claims payment body.
(9) The Minister must not make a
determination under subsection (6) or (7) in relation to an incorporated
company unless the company consents to the making of the determination.
(10) In this section:
body means:
(a) the Department; or
(b) an authority of the Commonwealth;
or
(c) an incorporated company; or
(d) the Chief Executive Officer of
Medicare Australia.
23
Repayments by contracted service providers
(1) If:
(a) an amount is paid to an entity as
mentioned in subsection 21(1); and
(b) the amount is paid subject to a
condition (whether a condition precedent or a condition subsequent); and
(c) the condition was contravened;
the entity is liable to repay the amount to the
Commonwealth.
(2) A payment to an entity as mentioned in
subsection 21(1) is taken to be made subject to a condition that a false or
misleading statement has not been made by or on behalf of the entity in
connection with a claim for the payment.
(3) This section does not, by implication,
limit the generality of subsection 20(2) (which deals with the terms and
conditions of the engagement of contracted service providers).
24
Recovery of overpayments etc.
(1) For the purposes of this section, each of
the following amounts is a service provider debt:
(a) so much of an amount paid, or
purportedly paid, to an entity as mentioned in subsection 21(1) as represents
an overpayment;
(b) an amount that is repayable as
mentioned in section 23 (which deals with conditional payments).
(2) A service provider debt is a debt due to
the Commonwealth.
(3) A service provider debt may be recovered
by the Commonwealth by action in a court of competent jurisdiction.
(4) If an entity is liable to pay a service
provider debt, the service provider debt may be deducted from one or more other
amounts that are payable to the entity as mentioned in subsection 21(1), and if
it is so deducted, the other amounts are taken to have been paid to the entity
to the extent of the deduction.
Part 4—Administration
25
Simplified outline
The following is a simplified outline of
this Part:
• The
Minister must establish a complaints‑handling mechanism.
• The
Minister may delegate powers conferred on the Minister by this Act.
26
Arrangements for dealing with complaints
The Minister must take all reasonable
steps to ensure that there are at all times in force arrangements under which:
(a) a participant in the voucher
system has the right to make a complaint about the provision to the participant
of hearing services in accordance with an agreement under Part 3; and
(b) a complaint so made will be
properly considered and dealt with within 90 days after it was made.
27
Delegation
(1) The Minister may, by writing, delegate
all or any of the Minister’s functions and powers under this Act to:
(a) the Secretary to the Department;
or
(b) any other officer of the
Department.
(2) Subsection (1) does not apply to the
Minister’s powers to make an instrument under subsection 5(3), 11(1), 13(1),
15(1) or 17(1).
(3) In this section:
this Act includes:
(a) the voucher rules; and
(b) the accreditation scheme; and
(c) the rules of conduct.
Part 5—Review of decisions
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.
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.).
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.
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:
(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 made—the extended period for making the application.
(4) An approved form of an application may
provide for verification by statutory declaration of statements in
applications.
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.
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.
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.
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.
Part 6—Injunctions
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.
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 scheme—a condition of that accreditation; or
(d) if the entity is engaged under
section 20—an 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 so—requiring 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 scheme—a condition of that accreditation; or
(iv) if the entity is
engaged under section 20—an 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.
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.
39
Discharge etc. of injunctions
The court may discharge or vary an
injunction granted under this Part.
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 kind—whether 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 kind—whether 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 thing—whether 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 thing—whether 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.
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.
Part 7—Vicarious liability
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.
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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:
(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.
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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.
Part 8—Miscellaneous
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.
46
Application of Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
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.
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.
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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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.