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Contents (2012 - 74)
Boarding Houses Act 2012 No 74
Current version for 7 July 2017 to date (accessed 25 November 2017 at 12:41)
Part 4 Division 1
Division 1 Introductory
34   Objects of Part
(1)  The objects of this Part are:
(a)  to ensure that persons with additional needs who reside at certain boarding premises are provided with accommodation and support services of an appropriate standard, and
(b)  to enact provisions for this purpose that are consistent (to the extent that is reasonably practicable) with the purposes and principles expressed in Articles 5, 9, 12, 14, 15, 16, 19, 21, 22, 25, 26 and 28 of the United Nations Convention on the Rights of Persons with Disabilities.
(2)  This Part aims to achieve these objects by creating a licensing and regulatory scheme for boarding premises that operate as assisted boarding houses.
(3)  A court or tribunal that, or person who, exercises any power conferred by or under this Part in relation to assisted boarding houses must be guided in the exercise of that power by the objects referred to in this section.
(4)  However, nothing in this section is intended to create or confer any legally enforceable obligations, rights or entitlements.
35   Definitions
(cf YCS Act, s 3)
(1)  In this Part:
application probity check—see section 45.
approved means approved by the Secretary from time to time.
approved manager means a person who has been granted a manager approval with respect to an assisted boarding house.
authorised boarding house means an assisted boarding house with respect to which a boarding house authorisation is in force.
authorised operator of an authorised boarding house means:
(a)  if the boarding house is a licensed boarding house—the licensee, and
(b)  if an interim permit is in force with respect to the boarding house—the interim permit holder.
boarding house authorisation means a boarding house licence or interim permit.
boarding house licence—see Subdivision 2 of Division 2.
close associate—see section 38.
competent relative of a person means a relative of the person who is:
(a)  18 years old or older, and
(b)  not a person with additional needs.
compliance notice—see section 79.
interim permit—see section 54.
interim permit holder means a person to whom an interim permit has been granted.
licensed boarding house means the premises to which a boarding house licence relates.
licensee means the holder of a boarding house licence.
manager approval—see section 60.
relevant operator of premises means any of the following:
(a)  a proprietor of the premises,
(b)  the person apparently in charge of the premises.
serious criminal offence means any of the following offences:
(a)  murder,
(b)  a prescribed sexual offence (within the meaning of the Criminal Procedure Act 1986),
(c)  any other assault under Part 3 of the Crimes Act 1900 for which the offender has been sentenced to imprisonment,
and includes an offence committed outside of New South Wales that, if it had been committed in New South Wales, would have constituted an offence of the kind referred to in paragraph (a), (b) or (c).
staff member of an assisted boarding house means a person who:
(a)  is 16 years old or older, and
(b)  provides, or is reasonably expected to provide, care or support services to residents of the boarding house (whether as an employee, contractor or volunteer) under the control or direction of the authorised operator or approved manager, and
(c)  has, or is reasonably likely to have, access to residents in need of such care or services,
and includes the approved manager of the boarding house or any resident providing, or reasonably expected to provide, such care or other services to other residents (whether in exchange for accommodation or otherwise).
unauthorised boarding house means an assisted boarding house for which there is no boarding house authorisation in force.
unincorporated body means a partnership or other unincorporated association of persons.
(2)  Any matter approved (or any revocation or amendment of an approved matter) by the Secretary for the purposes of a provision of this Part (other than Subdivision 4 of Division 2) that authorises the Secretary to approve the matter does not have effect until it is published on the website of the Department of Family and Community Services.
36   Meaning of “person with additional needs”
(1)  For the purposes of this Act, a person is a person with additional needs if:
(a)  the person has any one or more of the following conditions:
(i)  an age related frailty,
(ii)  a mental illness within the meaning of the Mental Health Act 2007,
(iii)  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, and
(b)  the condition is permanent or likely to be permanent, and
(c)  the condition results in the need for care or support services (whether or not of an ongoing nature) involving assistance with, or supervision of, daily tasks and personal care such as (but not limited to) showering or bathing, the preparation of meals and the management of medication.
(2)  The regulations may make provision for or with respect to matters and circumstances that may be used to establish or as evidence that an individual is a person with additional needs.
37   Meaning of “an assisted boarding house”
(cf YCS Act, s 3)
(1)  For the purposes of this Act, an assisted boarding house means any of the following:
(a)  boarding premises that provide beds, for a fee or reward, for use by 2 or more residents who are persons with additional needs (not counting any persons with additional needs who reside there with their competent relatives),
(b)  boarding premises that are declared to be an assisted boarding house by a notice in force under section 39.
(2)  However, an assisted boarding house does not include any of the following:
(a)  premises that are used as a hotel, motel or bed and breakfast accommodation,
(b)  premises that are used as a backpackers hostel,
(c)  a serviced apartment (being a building or part of a building that is used to provide self-contained tourist or visitor accommodation that is regularly cleaned by or on behalf of the proprietor or manager),
(d)  premises that are used to provide accommodation for workers or employees in connection with their work or employment,
(e)  a government school or registered non-government school within the meaning of the Education Act 1990 or any other premises that are used by an educational body to provide accommodation for its students,
(f)  a private health facility licensed under the Private Health Facilities Act 2007,
(g)  a nursing home within the meaning of the Public Health Act 2010,
(h)  a mental health facility within the meaning of the Mental Health Act 2007,
(i)  a public hospital within the meaning of the Health Services Act 1997,
(j)  a residential care facility under the Aged Care Act 1997 of the Commonwealth operated by an approved provider under that Act,
(k)  a retirement village under the Retirement Villages Act 1999,
(l)  premises that are the subject of a residential tenancy agreement to which the Residential Parks Act 1998 applies,
(m)  premises that are the subject of an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies,
(n)  social housing premises within the meaning of Part 7 of the Residential Tenancies Act 2010,
(o)  premises used for refuge or crisis accommodation, or accommodation for persons with additional needs, that is provided by a public authority, council or any other body or organisation and that is wholly or partly funded by the Commonwealth or the State (or an agency of the Commonwealth or the State),
(o1)  without limiting paragraph (o), premises used for accommodation that is provided by a registered provider of specialist disability accommodation for the purposes of the National Disability Insurance Scheme Act 2013 of the Commonwealth,
(p)  premises or a part of premises that are exempted from the operation of this Part by an exemption notice in force under section 40,
(q)  premises (or premises of a kind) prescribed by the regulations.
38   Meaning of “close associate”
(1)  For the purposes of this Part, a person is a close associate of an applicant for an authorisation, approval or exemption under this Part or an authorised operator if the person:
(a)  holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in the person’s own right or on behalf of any other person), in the business of the applicant or operator that is or will be carried on under the authority of the authorisation, approval or exemption, and by virtue of that interest or power is or will be able (in the opinion of the Secretary) to exercise a significant influence over or with respect to the management or operation of that business, or
(b)  holds or will hold any relevant position, whether in the person’s own right or on behalf of any other person, in the business of the applicant or operator that is or will be carried on under the authority of the authorisation, approval or exemption.
(2)  For the purposes of this section, a financial institution is not a close associate by reason only of having a relevant financial interest in relation to a business.
(3)  The provisions of this section extend to relevant financial interests and relevant powers even if those interests and powers are not payable, exercisable or otherwise enforceable as a matter of law or equity, but are nevertheless payable, exercisable or otherwise enforceable as a matter of fact.
(4)  In this section:
relevant financial interest, in relation to a business, means:
(a)  any share in the capital of the business, or
(b)  any entitlement to receive any income derived from the business, or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise, or
(c)  any entitlement to receive any rent, profit or other income in connection with the use or occupation of premises on which the business is or is to be carried on (such as, for example, an entitlement of the owner of the premises at which the business is carried on to receive rent as lessor of the premises).
relevant position means:
(a)  the position of director, manager or secretary, or
(b)  any other position, however designated, if it is an executive position.
relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others:
(a)  to participate in any directorial, managerial or executive decision, or
(b)  to elect or appoint any person to any relevant position.
39   Declaration of assisted boarding houses
(cf YCS Act, s 3A (1))
(1)  The Secretary may, by notice served on the relevant operator of boarding premises, declare those premises to be an assisted boarding house if the Secretary is satisfied that:
(a)  the premises provide beds for use by 2 or more residents who are persons with additional needs (not counting any persons with additional needs who reside there with their competent relatives), and
(b)  the premises are not excluded from the definition of assisted boarding house by section 37 (2), and
(c)  the making of the declaration is necessary to ensure the wellbeing of the residents of the premises.
(2)  The Secretary may declare boarding premises to be an assisted boarding house under this section even though some or all of the residents are being provided with beds without fee or reward.
40   Secretary may exempt premises and persons
(cf YCS Act, ss 3B and 23)
(1)  The Secretary may, by notice (an exemption notice), grant any of the following:
(a)  an exemption for specified premises, or a specified part of premises, from the operation of:
(i)  this Part (including the regulations for this Part), or
(ii)  specified provisions of this Part or the regulations for this Part,
(b)  an exemption for a specified person from the operation of:
(i)  specified provisions of this Part or the regulations for this Part, or
(ii)  a condition of a boarding house authorisation or manager approval.
(2)  An exemption notice is to be served:
(a)  in the case of an exemption for premises—on the relevant operator of the premises, and
(b)  in the case of an exemption for a person—on the person to whom the exemption is being given.
(3)  An exemption:
(a)  may be given unconditionally or subject to such terms and conditions as may be specified in the exemption notice, and
(b)  must specify a period for its duration (being a period not exceeding 12 months).
(4)  Without limiting subsection (3) (a), the terms and conditions that an exemption notice for premises, or a part of premises, may specify include terms and conditions for or with respect to any of the following:
(a)  standards to be observed and facilities to be provided in connection with the health, safety and wellbeing of persons with additional needs residing at the premises (including, but not limited to, standards of the kind referred to in section 43 (4)),
(b)  the carrying out of inspections and investigations in relation to the premises and its residents and staff (including, but not limited to, inspections and investigations of the kind required or permitted to be carried out in relation to authorised boarding houses under this or any other Act),
(c)  any other conditions that are or may be imposed by or under this Act on a boarding house authorisation for an authorised boarding house.
(5)  If an exemption is subject to terms and conditions, the exemption operates only while the terms and conditions are not being contravened.
(6)  If the Secretary intends to revoke an exemption granted under subsection (1) (b), the Secretary must serve a notice on the person to whom the exemption was granted stating that, when 28 days have expired after service of the notice, the Secretary intends to revoke the exemption on the grounds specified in the notice unless it has been established to the Secretary’s satisfaction that the exemption should not be revoked.
(7)  When 28 days have expired after a notice has been served on a person under subsection (6), the Secretary may, after considering any submissions made to the Secretary during that period by the person on whom the notice was served, revoke the exemption by a further notice served on that person.
(8)  If premises are exempted from the operation of Subdivision 1 of Division 2 (whether under this section or by or under the regulations for this Part), the premises are taken not to be a regulated assisted boarding house for the purposes of this Act.
Note.
 The premises may nevertheless be a general boarding house.