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Contents (2012 - 74)
Boarding Houses Act 2012 No 74
Current version for 7 July 2017 to date (accessed 22 November 2017 at 19:54)
Part 4 Division 2
Division 2 Authorisation of assisted boarding houses
Subdivision 1 Requirement for assisted boarding houses to be authorised
41   Assisted boarding houses to be authorised
(cf YCS Act, ss 21 (2) and (4) and 22 (1) and (4))
(1)  A proprietor of boarding premises must not use (or permit the use of) the premises as an assisted boarding house unless the premises are used in accordance with the authority conferred by a boarding house authorisation for the premises.
Maximum penalty:
(a)  in the case of a corporation—120 penalty units and in addition, for a continuing offence, 20 penalty units for each day the offence continues, and
(b)  in any other case—60 penalty units and in addition, for a continuing offence, 10 penalty units for each day the offence continues.
(2)  A person must not act as the manager of boarding premises that are being used as an assisted boarding house unless the person is an individual who is:
(a)  an authorised operator of the boarding house, or
(b)  an approved manager of the boarding house appointed by the authorised operator of the boarding house.
Maximum penalty:
(a)  in the case of a corporation—120 penalty units and in addition, for a continuing offence, 20 penalty units for each day the offence continues, and
(b)  in any other case—60 penalty units and in addition, for a continuing offence, 10 penalty units for each day the offence continues.
(3)  It is a defence in proceedings for an offence against subsection (1) if the proprietor satisfies the court that the proprietor did not know, and could not reasonably have been expected to know, that the premises were being used as an assisted boarding house otherwise than in accordance with the authority conferred by a boarding house authorisation.
42   Authority granted by boarding house licence and interim permits
(cf YCS Act, ss 15, 16, 19 (2) (d), 21 (3) and (4) and 22)
(1)  The following kinds of licences and permits may be granted and held under this Act:
(a)  a boarding house licence,
(b)  an interim permit.
(2)  A boarding house licence authorises the licensee to use the premises specified in the licence as an assisted boarding house in accordance with this Act and the conditions of the licence.
(3)  An interim permit authorises the interim permit holder to use the premises specified in the permit as an assisted boarding house in accordance with this Act and the conditions of the permit.
(4)  The authorisation conferred by a boarding house authorisation is subject to this Act and the regulations.
43   Authorisation conditions—general provisions
(1)  A boarding house authorisation is subject to the following conditions:
(a)  any condition imposed on the authorisation by this Act or prescribed by the regulations,
(b)  any condition imposed on the authorisation by the Secretary under this Act.
(2)  The Secretary may impose conditions on a boarding house authorisation:
(a)  at the time of the grant of the authorisation, or
(b)  subsequent to the grant of the authorisation by variation of the authorisation.
(3)  The Secretary may impose or vary conditions on a boarding house authorisation for such reasons, and in such circumstances, as the Secretary considers appropriate or necessary.
(4)  Without limiting subsections (1) and (3), the conditions prescribed by the regulations or imposed by the Secretary may include conditions relating to any or both of the following:
(a)  standards for services provided to residents (including, but not limited to, standards concerning the physical and mental welfare, education, social activities, personal protection and meals of residents),
(b)  standards for accommodation provided to residents (including, but not limited to, standards concerning bedrooms, bathrooms and other rooms that are occupied or used by residents).
(5)  An authorised operator of an assisted boarding house must not contravene a condition of the boarding house authorisation for the boarding house.
Maximum penalty:
(a)  in the case of a corporation—40 penalty units and in addition, for a continuing offence, 10 penalty units for each day the offence continues, and
(b)  in any other case—20 penalty units and in addition, for a continuing offence, 5 penalty units for each day the offence continues.
Subdivision 2 Boarding house licences
44   Licence applications
(cf YCS Act, s 11 (1))
(1)  An application for a boarding house licence is to be made to the Secretary.
(2)  An application may be made:
(a)  if the proprietor (or proposed proprietor) of the premises concerned is a natural person, a corporation or a body politic—by the person, corporation or body politic, or
(b)  if the proprietor (or proposed proprietor) of the premises concerned is a trustee—by the trustee, or
(c)  if the proprietors (or proposed proprietors) of the premises concerned are the members of an unincorporated body—by any of those members authorised by the members to make the application on their behalf.
(3)  A person is a proposed proprietor of premises for the purposes of subsection (2) if the person is seeking to become a proprietor of the premises in order to use them as an assisted boarding house.
(4)  An application for a licence:
(a)  must be in the approved form and contain such particulars and other information as may be approved, and
(b)  may specify only one proposed licensee.
Note.
 Section 60 (3) provides that an application for a manager approval may, with the consent of the person seeking the approval, be made on the person’s behalf as part of an application for a boarding house licence.
45   Investigations and inquiries in relation to licence applications
(cf YCS Act, s 11 (2))
(1)  If the Secretary receives an application for a boarding house licence, the Secretary may carry out such investigations and inquiries in relation to the application as the Secretary considers necessary for a proper consideration of the application.
(2)  Without limiting subsection (1), the Secretary is to conduct (or to arrange for the conduct of) the following checks (an application probity check) before an application for a licence is determined:
(a)  criminal record checks of the applicant, a proposed approved manager and any proposed staff members of the proposed licensed boarding house,
(b)  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),
(c)  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,
(d)  a criminal record check of any other close associate of the applicant that may be required by the Secretary,
(e)  a check of the financial capacity of the applicant and the applicant’s close associates to operate the proposed assisted boarding house,
(f)  such other checks as may be prescribed by the regulations.
(3)  The Secretary may require an applicant to conduct any of the application probity checks and provide the results of those checks to the Secretary either when the application is made or at a specified time before the application is determined.
(4)  If a criminal record check in relation to a person cannot be conducted or is unavailable (whether at all or in relation to a particular period), the Secretary may require the person concerned to provide the Secretary with a statutory declaration in the approved form regarding the person’s criminal record.
Note.
 For example, a criminal record check may not be able to be conducted in relation to a period of time during which the person concerned resided overseas.
(5)  The Secretary may refuse to determine an application for a licence if a requirement made by the Secretary under this section is not complied with.
46   Decision of Secretary in relation to licence application
(cf YCS Act, s 12)
(1)  The Secretary may, after considering an application for a boarding house licence (including any application probity checks or other matters required by the regulations), grant the licence or refuse to grant the licence.
(2)  Without limiting subsection (1), the Secretary may refuse to grant a boarding house licence if the Secretary is of the opinion that:
(a)  a person proposed as the licensee, an individual proposed as the approved manager or any close associate of the applicant is not a suitable person to be involved in the management or operation of an assisted boarding house, or
(b)  the applicant does not have (or is unlikely to have) the financial capacity to operate the proposed licensed boarding house.
(3)  The Secretary must refuse to grant a boarding house licence if the Secretary is of the opinion that (based on information obtained from application probity checks) any of the following persons has been convicted of a serious criminal offence:
(a)  the applicant,
(b)  an individual proposed as the approved manager,
(c)  a proposed staff member,
(d)  if the applicant is not a natural person—any person involved in the control or management of the applicant (such as a chief executive officer, director or majority shareholder of a corporation),
(e)  if the applicant makes the application on behalf of an unincorporated body—any partner or member of the management committee or other office holder of the body,
(f)  any other close associate of the applicant in respect of whom an application probity check has been required by the Secretary.
(4)  The regulations may also specify mandatory or discretionary grounds for refusing the granting of a licence.
(5)  As soon as practicable after the Secretary determines an application, the Secretary must serve the applicant with a notice stating whether the licence has been granted and, if it has been refused, the reasons for the refusal.
47   Variation of licence
(cf YCS Act, s 17)
(1)  The Secretary may, by notice served on the licensee, vary a boarding house licence (including any conditions of the licence imposed by the Secretary).
(2)  A variation includes the imposition of new conditions on a licence, the substitution of a condition, or the omission or amendment of a condition.
48   Appointment of substitute licensee
(1)  The Secretary may, on the Secretary’s own initiative or on the application of the licensee or person concerned, vary a boarding house licence to appoint a person as licensee under the licence in place of the existing licensee.
(2)  Any such variation may be made only:
(a)  if the licence was granted to authorise the use of an assisted boarding house by a person for or on behalf of an unincorporated body or trust and, as a result of a change in circumstances, it is no longer appropriate for the person to be the licensee for or on behalf of that body or trust, or
(b)  if the existing licensee has died, or
(c)  if the existing licensee is a corporation that is an externally administered body corporate within the meaning of the Corporations Act 2001 of the Commonwealth, or
(d)  in any other circumstances prescribed by the regulations.
(3)  A person appointed by the Secretary as licensee is taken to be the licensee under the licence for the period (if any) specified by the Secretary in the appointment.
49   Suspension or cancellation of licences
(cf YCS Act, s 18)
(1)  The Secretary may, by notice served on the licensee, suspend or cancel a boarding house licence:
(a)  if the Secretary is of the opinion that the licensee or any close associate of the licensee is no longer a suitable person to be involved in the management or operation of the licensed boarding house, or
(b)  if the Secretary is of the opinion that the continued use of the assisted boarding house under the licence would constitute an unacceptable risk to the safety, welfare or wellbeing of any person with additional needs or other persons residing at the premises, or
(c)  if the Secretary is of the opinion that the licensee has contravened any provision of this Act or the regulations (whether or not the licensee has been convicted of an offence for the contravention), or
(d)  if the Secretary is of the opinion that a condition of the licence has been contravened, or
(e)  on any other grounds specified in the regulations.
(2)  The notice served on the licensee must state the reasons why the licence is being suspended or cancelled and, in the case of a suspension, the period during which the licence is suspended (being a period of no more than 6 months).
(3)  The Secretary may, by the same notice, suspend the licence and provide for the cancellation of the licence at the end of the suspension period unless specified conditions are met during the suspension period.
(4)  A licensee whose licence is cancelled must surrender the licence to the Secretary within 28 days after the licence is cancelled.
Maximum penalty (subsection (4)): 20 penalty units.
50   Surrender of licence
(1)  A licensee may, by notice in the approved form given to the Secretary and accompanied by the boarding house licence, voluntarily surrender the licence.
(2)  If a licensed boarding house ceases to be used as (or to be) an assisted boarding house, the licensee must surrender the boarding house licence to the Secretary within 28 days after the cessation.
Maximum penalty: 20 penalty units.
(3)  The surrender of a licence under this section takes effect 28 days after the licence is returned to the Secretary, unless the Secretary serves the licensee with a notice specifying an earlier date for the surrender to take effect or the licence is sooner cancelled or otherwise ceases to be in force.
Note.
 An interim permit may be granted in relation to a licensed boarding house if its licence is surrendered so as to enable it to continue to function on a short term basis. See section 54 (3) (c).
51   Duration of licence
(1)  A boarding house licence may be granted for a fixed term or for no fixed term.
(2)  If a boarding house licence is granted for a fixed term, the licence remains in force for the term specified in the licence, unless sooner surrendered or cancelled or it otherwise ceases to be in force.
(3)  If a boarding house licence is granted for no fixed term, it remains in force until it is surrendered or cancelled or it otherwise ceases to be in force.
(4)  In any case, a boarding house licence is taken not to be in force for the purposes of this Act during any period in which it is suspended.
(5)  If the licensee under a boarding house licence dies, the licence is taken to be suspended for the period of 28 days after the death or such further period as the Secretary may allow.
Note.
 See section 48 concerning the variation of a licence to substitute a new licensee and section 54 concerning the issuing of interim permits.
52   Form of licence
(cf YCS Act, s 13)
(1)  A boarding house licence is to be in the approved form.
(2)  Without limiting subsection (1), a boarding house licence is to specify:
(a)  the person to whom the licence is granted, and
(b)  the term (if any) for which it is granted.
53   Display of licence
(cf YCS Act, s 21 (5))
The licensee of a licensed boarding house must ensure that a copy of the boarding house licence is displayed in a conspicuous position at the boarding house.
Maximum penalty:
(a)  in the case of a corporation—10 penalty units, and
(b)  in any other case—5 penalty units.
Subdivision 3 Interim permits
54   When interim permits may be granted
(cf YCS Act, ss 18 (1) and (2) and 20)
(1)  The Secretary may, on the Secretary’s own initiative or on the application of the person concerned, grant a permit (an interim permit) to a person to use or continue to use specified boarding premises as an assisted boarding house on a short-term basis.
(2)  An application for an interim permit is to be made in the approved form and contain such particulars and other information as may be approved.
(3)  An interim permit may be granted as follows:
(a)  to an applicant for a boarding house licence for the premises concerned pending the final determination by the Secretary as to whether the licence should be granted,
(b)  to a person seeking appointment by the Secretary as the replacement licensee under a boarding house licence for the premises concerned where the licence was suspended because of the death of the previous licensee, pending the final determination by the Secretary as to whether the person should be so appointed,
(c)  to a person (including a former licensee) that the Secretary considers suitable so as to enable the premises concerned to continue to be used as an assisted boarding house despite the surrender, suspension or cancellation of the boarding house licence for the premises,
(d)  to a person that the Secretary considers suitable to enable an assisted boarding house to continue to be operated during the absence of the licensee for the boarding house (whether because of illness or otherwise),
(e)  to a person in such other circumstances as may be prescribed by the regulations.
(4)  If a boarding house licence for an assisted boarding house is in force when an interim permit is granted for the boarding house, the licence is taken to be suspended while the interim permit remains in force for the boarding house.
(5)  As soon as practicable after the Secretary determines an application, the Secretary must serve the applicant with a notice stating whether the permit has been granted and, if it has been refused, the reasons for the refusal.
(6)  An interim permit is to be in the approved form.
55   Duration of interim permit
(cf YCS Act, s 19 (3))
(1)  An interim permit remains in force for the period specified in the permit, unless:
(a)  sooner revoked or it otherwise ceases to be in force, or
(b)  the period is extended under subsection (3).
(2)  The maximum period that may be specified for the duration of an interim permit is:
(a)  in the case of a permit granted to an applicant for a boarding house licence or an applicant seeking appointment by the Secretary as the replacement licensee under a boarding house licence for the premises concerned—3 months, or
(b)  in any other case—6 months.
(3)  The Secretary may from time to time, by notice served on the interim permit holder, extend the period during which an interim permit (other than a permit of the kind referred to in subsection (2) (a)) remains in force by a period specified in the notice (not exceeding 6 months each time), but not so that the permit remains in force for a total period of more than 2 years.
56   Variation of interim permit
(1)  The Secretary may, by notice served on the interim permit holder, vary an interim permit (including any conditions of the permit imposed by the Secretary).
(2)  A variation includes the imposition of new conditions on a permit, the substitution of a condition, or the omission or amendment of a condition.
57   Revocation of interim permit
(cf YCS Act, s 19 (4))
(1)  The Secretary may, by notice served on the interim permit holder, revoke an interim permit:
(a)  if the Secretary is of the opinion that a condition of the permit has been contravened, or
(b)  on any other ground that the Secretary considers sufficient.
(2)  The notice served on the interim permit holder must state the reasons why the permit is being revoked.
(3)  An interim permit holder whose interim permit is revoked must surrender the permit to the Secretary within 28 days after the permit is revoked.
Maximum penalty (subsection (3)):
(a)  in the case of a corporation—40 penalty units, and
(b)  in any other case—20 penalty units.
58   Surrender of interim permit
(1)  An interim permit holder may, by notice in the approved form given to the Secretary and accompanied by the interim permit, voluntarily surrender the permit.
(2)  If the premises to which an interim permit relates cease to be used as (or to be) an assisted boarding house, the interim permit holder must surrender the interim permit to the Secretary within 28 days after the cessation.
Maximum penalty: 20 penalty units.
(3)  The surrender of an interim permit under this section takes effect 28 days after the permit is returned to the Secretary, unless the Secretary serves the interim permit holder with a notice specifying an earlier date for the surrender to take effect or the permit is sooner revoked or otherwise ceases to be in force.
Subdivision 4 Approval of managers of assisted boarding houses
59   Assisted boarding house to be managed by approved manager in certain cases
(1)  It is a condition of a boarding house authorisation that the authorised operator must ensure that at least one approved manager is appointed by the operator to act as the manager of the assisted boarding house to which the authorisation relates if:
(a)  the operator is a corporation, body politic or trustee or holds the authorisation on behalf of an unincorporated body, or
(b)  the operator is an individual who is not acting (or does not intend to act) as the manager of the boarding house.
(2)  The person appointed must be a person authorised by his or her manager approval to act as the manager of the assisted boarding house.
60   Manager approvals
(cf YCS Act, s 14 (1))
(1)  The Secretary may, on application made by or on behalf of a person, grant an approval (a manager approval) that authorises the person to act as the manager of a specified assisted boarding house.
(2)  An application for a manager approval is to be made in the approved form and contain such particulars and other information as may be approved.
(3)  Without limiting subsection (1), an application for a manager approval may, with the consent of the person seeking the approval, be made on the person’s behalf as part of an application for a boarding house authorisation.
(4)  A manager approval is to be in the approved form.
61   Decision of Secretary in relation to applications for manager approval
(cf YCS Act, s 14 (2))
(1)  The Secretary may, after considering an application for a manager approval (including any probity checks or other matters required by the regulations), grant the approval or refuse to grant the approval.
(2)  Without limiting subsection (1), the Secretary may refuse to grant a manager approval:
(a)  if the Secretary is of the opinion that the applicant is not a suitable person to be involved in the management of an assisted boarding house, or
(b)  on any other grounds prescribed by the regulations.
(3)  As soon as practicable after the Secretary determines an application, the Secretary must serve the applicant with a notice stating whether the approval has been granted and, if it has been refused, the reasons for the refusal.
62   Duration of approval
(1)  A manager approval may be granted for a fixed term or for no fixed term.
(2)  If a manager approval is granted for a fixed term, the approval remains in force for the term specified in the approval, unless sooner surrendered or revoked or it otherwise ceases to be in force.
(3)  If a manager approval is granted for no fixed term, the approval remains in force until it is surrendered or revoked or it otherwise ceases to be in force.
(4)  In any case, a manager approval is taken not to be in force for the purposes of this Act during any period in which it is suspended.
(5)  An approved manager may, by notice in the approved form given to the Secretary and accompanied by the manager approval, voluntarily surrender the approval. Any such surrender takes effect on the day on which the notice is given to the Secretary.
63   Conditions of approvals
(1)  A manager approval is subject to the following conditions:
(a)  any conditions imposed by this Act or prescribed by the regulations,
(b)  any conditions imposed by the Secretary under this Act.
(2)  The Secretary may impose conditions on an approval:
(a)  at the time of the grant of the approval, or
(b)  subsequent to the grant of the approval by variation of the approval.
(3)  The Secretary may impose or vary conditions on an approval for such reasons, and in such circumstances, as the Secretary considers appropriate or necessary.
(4)  A person who is an approved manager must not contravene a condition of the person’s manager approval.
Maximum penalty: 20 penalty units and in addition, for a continuing offence, 5 penalty units for each day the offence continues.
64   Variation of approval
(1)  The Secretary may, by notice served on the approved manager, vary a manager approval (including any conditions of the approval imposed by the Secretary).
(2)  A variation includes the imposition of new conditions on an approval, the substitution of a condition, or the omission or amendment of a condition.
65   Suspension or revocation of approval
(1)  The Secretary may, by notice served on the approved manager, suspend or revoke a manager approval:
(a)  if the Secretary is of the opinion that the approved manager is no longer a suitable person to be involved in the management of an assisted boarding house, or
(b)  if the Secretary is of the opinion that the approved manager has contravened any provision of this Act or the regulations (whether or not the approved manager has been convicted of an offence for the contravention), or
(c)  if the Secretary is of the opinion that a condition of the manager approval has been contravened, or
(d)  on any other grounds prescribed by the regulations.
(2)  The notice served on the approved manager must state the reasons why the manager approval is being suspended or revoked and, in the case of a suspension, the period during which the approval is suspended (being a period of no more than 6 months).
(3)  The Secretary may, by the same notice, suspend the approval and provide for the revocation of the approval at the end of the suspension period unless specified conditions are met during the suspension period.
(4)  An approved manager whose manager approval is revoked must surrender the approval to the Secretary within 28 days after the approval is revoked.
Maximum penalty (subsection (4)): 20 penalty units.