Compilation #11 | Effective 2025-11-01
FRBR Work URI: /akn/au/act/2006/26
This Act may be cited as the Aged Care (Accommodation Payment Security) Act 2006.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The following is a simplified outline of this Act and some related material:
In certain circumstances, the Commonwealth will pay to a person an amount that the Secretary considers is equal to an accommodation payment balance, and interest, owed to the person by a registered provider or former registered provider (see sections 10, 12, 13 and 16).
Any rights that a person who is paid such an amount had to recover the amount from a registered provider or former registered provider are transferred to the Commonwealth (see section 15).
The Commonwealth may recoup certain costs it incurs from other registered providers (see sections 18 and 19 and the Aged Care (Accommodation Payment Security) Levy Act 2006).
This Act applies in all the States and Territories.
However, this Act does not apply in any external Territory, except Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to be prosecuted for an offence.
In this Act:
accommodation bond has the same meaning as in the Aged Care Act 2024.
accommodation bond balance has the same meaning as in the Aged Care Act 2024.
accommodation payment balance means:
a refundable deposit balance; or
an accommodation bond balance; or
an entry contribution balance; or
an unregulated lump sum balance.
administrative costs means costs incurred by the Commonwealth in relation to, and as the result of, the making of the default event declaration and includes, but is not limited to, costs incurred by the Commonwealth as a result of: making any insolvency event declaration under section 7 that enabled the making of the default event declaration; and giving notice of such an insolvency event declaration under section 8; and giving notice of the default event declaration under section 11; and determining matters under section 12 that were required to be determined as a result of the making of the default event declaration; and making any refund declarations under section 13 that were required to be made as a result of the making of the default event declaration; and making any refund declarations under section 13A that were permitted to be made as a result of the making of the default event declaration; and giving notice of those refund declarations under section 14; and attempting to recover amounts that the Commonwealth gained the right to recover under section 15 as a result of the making of those refund declarations; and making refund costs recoupment determinations under section 18 relating to those refund declarations; and (i) recovering levy that the Commonwealth was enabled, as a result of the making of those refund costs recoupment determinations, to impose by regulations made under Aged Care (Accommodation Payment Security) Levy Act 2006.section 6 of the
making any insolvency event declaration under section 7 that enabled the making of the default event declaration; and
giving notice of such an insolvency event declaration under section 8; and
giving notice of the default event declaration under section 11; and
determining matters under section 12 that were required to be determined as a result of the making of the default event declaration; and
making any refund declarations under section 13 that were required to be made as a result of the making of the default event declaration; and
making any refund declarations under section 13A that were permitted to be made as a result of the making of the default event declaration; and
giving notice of those refund declarations under section 14; and
attempting to recover amounts that the Commonwealth gained the right to recover under section 15 as a result of the making of those refund declarations; and
making refund costs recoupment determinations under section 18 relating to those refund declarations; and
(i) recovering levy that the Commonwealth was enabled, as a result of the making of those refund costs recoupment determinations, to impose by regulations made under Aged Care (Accommodation Payment Security) Levy Act 2006.section 6 of the
administrative costs recoupment determination means a determination made under section 19.
aged care service has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
approved provider has the same meaning as in the Aged Care Quality and Safety Commission Act 2018.
approved residential care home has the same meaning as in the Aged Care Act 2024.
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
corporation means a trading or financial corporation within the meaning of paragraph 51(xx) of the Constitution.
default event declaration means a declaration made under section 10.
entry, in relation to a person and an aged care service, has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
entry contribution has the same meaning as in the Aged Care Act 2024.
entry contribution balance has the same meaning as in the Aged Care Act 2024.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
flexible care has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
flexible care service has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
formal agreement has the same meaning as in the rules made under the Aged Care (Consequential and Transitional Provisions) Act 2024.
funded aged care service has the same meaning as in the Aged Care Act 2024.
insolvency event: each of the following events is an insolvency event that may occur in relation to a person who is or has been a registered provider (the registered provider or former registered provider):
(a) a CGT event G3 (within the meaning of the Income Tax Assessment Act 1997) in respect of shares or financial instruments of the registered provider or former registered provider;
the making of an order:
(i) under Corporations Act 2001; orsection 459A or 459B of the
under a provision of the law of a State, or Territory, which deals with the incorporation of associations;
that the registered provider or former registered provider be wound up in insolvency;
the passing of a special resolution:
(i) under Corporations Act 2001; orsection 491 of the
under a provision of the law of a State, or Territory, which deals with the incorporation of associations;
that the registered provider or former registered provider be wound up voluntarily;
(d) the passing of a resolution under paragraph 439C(c) of the Corporations Act 2001 by the creditors of the registered provider or former registered provider that the registered provider or former registered provider be wound up;
the making of a sequestration order against the estate of the registered provider or former registered provider;
(f) the acceptance of a debtor’s petition (within the meaning of the Bankruptcy Act 1966) against the registered provider or former registered provider by an Official Receiver (within the meaning of that Act);
the making of an insolvency event declaration in relation to the registered provider or former registered provider (see section 7);
(h) the making of a debt agreement (within the meaning of the Bankruptcy Act 1966) to which the registered provider or former registered provider is a party in the capacity of a debtor;
(i) the execution of a personal insolvency agreement (within the meaning of the Bankruptcy Act 1966) by the registered provider or former registered provider in the capacity of a debtor.
insolvency event declaration means a declaration made under section 7.
national newspaper means a newspaper circulating generally throughout Australia.
outstanding accommodation payment balance has the meaning given by subsection (2).
refundable deposit balance has the same meaning as in the Aged Care Act 2024.
refund amount means the amount that the refund declaration declares is to be paid by the Commonwealth.
refund costs recoupment determination means a determination made under section 18.
refund declaration means a declaration made under section 13 or 13A.
refund recipient means the person that the refund declaration declares is to be paid an amount by the Commonwealth.
registered provider has the same meaning as in the Aged Care Act 2024.
residential care has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
residential care service has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
respite care has the meaning given by the Dictionary in Schedule 1 to the Aged Care Act 1997.
Secretary means the Secretary of the Department.
unregulated lump sum has the meaning given by subsection (3).
unregulated lump sum balance, in relation to an unregulated lump sum is, at a particular time, an amount equal to the difference between:
the amount of the unregulated lump sum; and
any amounts that have been, or are permitted to be, deducted at that time under the agreement under which the unregulated lump sum was paid.
Outstanding accommodation payment balance
(2) For the purposes of this Act, an accommodation payment balance is an outstanding accommodation payment balance at a particular time of a person who is or has been a registered provider if:
at that time all, or part, of the accommodation payment balance has not been refunded; and
(aa) in relation to a refundable deposit balance—that time is later than the time required for payment of the balance to be refunded by the person under Aged Care Act 2024; andsection 311 of the
in relation to an accommodation bond balance or entry contribution balance—that time is later than the time required for the balance to be refunded by the person under:
(i) for accommodation bond balances—the rules made under the Aged Care Act 2024; or
for entry contribution balances—a formal agreement applying in respect of the balance; and
in relation to an unregulated lump sum—that time is later than the earlier of the following:
(i) the start of the first day on which the person (the unregulated lump sum holder) to whom the amount was paid is obliged, under the agreement under which it was paid, to refund the amount or part of the amount;
the end of a period of 14 days beginning immediately after the day on which the individual in relation to whose entry to a residential care service or flexible care service the amount of the unregulated lump sum was paid ceased accessing relevant funded aged care services for the unregulated lump sum (see subsection 2A).
(2A) For the purposes of subparagraph 6(2)(c)(ii), relevant funded aged care services for an unregulated lump sum means funded aged care services:
delivered by the registered provider that holds the unregulated lump sum; and
(b) delivered in an approved residential care home, being the approved residential care home that was, immediately before the commencement of the Aged Care Act 2024, the place of the residential care service or flexible care service in relation to which the unregulated lump sum was paid.
What is an unregulated lump sum?
(3) An unregulated lump sum is an amount of money paid to a person (the unregulated lump sum holder) in the following circumstances:
the amount is paid to the unregulated lump sum holder by a care recipient under a written agreement for the care recipient’s entry to:
a residential care service through which residential care other than respite care is, or is to be, provided by the unregulated lump sum holder; or
a flexible care service through which flexible care is, or is to be, provided by the unregulated lump sum holder;
the amount does not accrue daily;
under the agreement, the amount, or part of the amount, must be refunded to the care recipient if the unregulated lump sum holder ceases to provide residential care or flexible care (as the case requires) to the care recipient;
the unregulated lump sum holder was an approved provider immediately before 1 January 2009;
the amount was paid to the unregulated lump sum holder before 1 January 2009 and before the unregulated lump sum holder began to be an approved provider;
the amount is not an entry contribution;
the care recipient did not cease to be provided with residential care through the residential care service, or flexible care through the flexible care service (as the case requires), after the amount was paid but before the unregulated lump sum holder began to be an approved provider.
Note: The expressions used in this section have the same meanings as in the Aged Care Act 1997: see section 6A of this Act. Unregulated lump sums cannot be paid under the Aged Care Act 2024, but agreements may still be in force after that Act commences. Unregulated lump sums paid under these agreements may relate to approved providers that are deemed to be registered providers because of the operation of the Aged Care (Consequential and Transitional Provisions) Act 2024 and may therefore form part of an outstanding accommodation payment balance.
(1) An expression used in a provision of this Act and in the Aged Care Act 1997 has the same meaning in that provision as it had in that Act immediately before the commencement of the Aged Care Act 2024.
A reference in this Act to a former registered provider, or to a person who has been a registered provider, is taken to include a reference to a former approved provider.
Subsections (1) and (2) are subject to a contrary intention.
The Minister may make an insolvency event declaration in relation to a person who is or has been a registered provider if:
(a) the person is a Chapter 5 body corporate (within the meaning of the Corporations Act 2001); and
there is at least one outstanding accommodation payment balance of the person.
Note: A person that is a body that is incorporated under a law of a State or Territory may be a Chapter 5 body corporate within the meaning of the Corporations Act 2001.
The insolvency event declaration must be in writing.
An insolvency event declaration is not a legislative instrument.
The Secretary must give a copy of an insolvency event declaration to the person to whom the insolvency event declaration relates.
A failure to comply with subsection (1) does not affect the validity of any insolvency event declaration.
If:
a person is a registered provider; and
(b) any of the events mentioned in paragraph (a), (b), (c), (d), (e), (f), (h) or (i) of the definition of insolvency event occur in relation to the person;
the person must notify the Secretary the first time that the event occurs.
If:
a person has been, but is no longer, a registered provider; and
(b) any of the events mentioned in paragraph (a), (b), (c), (d), (e), (f), (h) or (i) of the definition of insolvency event occur in relation to the person; and
there was at least one outstanding accommodation payment balance of the person at the time the event occurs;
the person must notify the Secretary the first time that the event occurs.
The notification under subsection (1) or (2) must be given in writing by the end of the first business day after the day on which the event occurs.
A person commits an offence if the person refuses or fails to comply with a requirement under this section.
Penalty: 30 penalty units.
As soon as practicable after the Secretary first becomes aware that:
(a) an insolvency event has occurred in relation to a person who is or has been a registered provider (the registered provider or former registered provider); and
there is at least one outstanding accommodation payment balance of the registered provider or former registered provider;
the Secretary must make a default event declaration.
The default event declaration must:
be in writing; and
state that an insolvency event has occurred in relation to the registered provider or former registered provider; and
state that the Secretary considers that there is at least one outstanding accommodation payment balance of the registered provider or former registered provider.
A default event declaration is not a legislative instrument.
The Secretary must give a copy of a default event declaration to:
the registered provider or former registered provider in relation to which the declaration states an insolvency event has occurred; and
each person whom the Secretary considers may be entitled to receive a refund of an outstanding accommodation payment balance of the registered provider or former registered provider.
The Secretary must publish a copy of a default event declaration in a national newspaper.
A failure to comply with subsection (1) or (2) does not affect the validity of any default event declaration.
(1) If the Secretary has made a default event declaration stating that an insolvency event has occurred in relation to a person who is or has been a registered provider (the registered provider or former registered provider), the Secretary must identify each accommodation payment balance that:
was an outstanding accommodation payment balance of the registered provider or former registered provider at the time that the default event declaration was made; or
later becomes an outstanding accommodation payment balance of the registered provider or former registered provider.
In respect of each accommodation payment balance identified by the Secretary under subsection (1), the Secretary must determine:
the date on which the accommodation payment balance became an outstanding accommodation payment balance; and
the amount that the Secretary considers is equal to the amount of the accommodation payment balance that had not been refunded at the time the Secretary makes the determination; and
(c) the amount that the Secretary considers is equal to the amount representing interest on the amount determined under paragraph (b), worked out in accordance with the rules made for the purposes of Aged Care Act 2024 under section 602 of that Act, that has accrued at the time that the Secretary determines the amount under paragraph (b); andsection 313 of the
the person to whom the Secretary considers the registered provider or former registered provider was required to refund the accommodation payment balance at the time that it became an outstanding accommodation payment balance; and
the method that the Secretary considers would be most appropriate for the Commonwealth to use to pay a refund amount to the person mentioned in paragraph (d).
Where all or part of a refund is clawed back as a result of insolvency or bankruptcy
If:
before the determination is made, part of an accommodation payment balance is refunded; and
in a case where the registered provider or former registered provider is a corporation:
(i) a transaction under which the refund took place is a voidable transaction under subsection 588FE(2), (2A), (2B) or (6B) of the Corporations Act 2001; and
the liquidator takes action, including but not limited to the making of an application under section 588FF of that Act or a request under subsection 588FGAA(2) of that Act, as a result of which the person to whom the refund was made does not retain the value of the refund, or part of the value of the refund; and
in a case where the registered provider or former registered provider is not a corporation:
(i) a transfer of any property for the purposes of giving the refund is void under Bankruptcy Act 1966; andsection 122 of the
the trustee in bankruptcy takes action as a result of which the person to whom the refund was made does not retain the value of the refund, or part of the value of the refund;
then, for the purposes of paragraph (2)(b), to the extent that the person to whom the refund was made does not retain the value of the refund, the refund is taken not to have been made.
(1) As soon as practicable after the Secretary has determined the matters mentioned in subsection 12(2) in respect of an outstanding accommodation payment balance of a person who is or has been a registered provider (the registered provider or former registered provider), the Secretary must make a refund declaration relating to the outstanding accommodation payment balance.
The refund declaration must:
be in writing; and
specify the registered provider or former registered provider that has not refunded all, or part, of the relevant outstanding accommodation payment balance; and
declare that the Commonwealth is to pay an amount equal to the sum of:
the amount determined under paragraph 12(2)(b); and
the amount determined under paragraph 12(2)(c);
to the person determined under paragraph 12(2)(d).
A refund declaration is not a legislative instrument.
This section applies if:
(a) a person who is or has been a registered provider (the registered provider or former registered provider) refunds part of an accommodation payment balance (the initial refund); and
after the initial refund, the Secretary, under paragraph 12(2)(b), determines the amount that the Secretary considers is equal to the amount of the accommodation payment balance that has not been refunded at the time the Secretary makes the determination; and
a refund declaration is made under section 13 in reliance on that determination; and
in a case where the registered provider or former registered provider is a corporation:
(i) a transaction under which the initial refund took place is a voidable transaction under subsection 588FE(2), (2A), (2B) or (6B) of the Corporations Act 2001; and
the liquidator takes action, including but not limited to the making of an application under section 588FF of that Act or a request under subsection 588FGAA(2) of that Act, as a result of which the person to whom the initial refund was made does not retain the value of the initial refund, or part of the value of the initial refund; and
in a case where the registered provider or former registered provider is not a corporation:
(i) a transfer of any property for the purposes of giving the initial refund is void under Bankruptcy Act 1966; andsection 122 of the
the trustee in bankruptcy takes action as a result of which the person to whom the initial refund was made does not retain the value of the initial refund, or part of the value of the initial refund.
The Secretary may:
determine the amount that the Secretary considers is equal to the amount of the value of the initial refund that has not been retained by the person to whom it was made; and
as soon as practicable after the Secretary has determined that matter, make another refund declaration relating to the outstanding accommodation payment balance.
The refund declaration must:
be in writing; and
specify the registered provider or former registered provider who has not refunded all, or part, of the relevant outstanding accommodation payment balance; and
declare that the Commonwealth is to pay an amount equal to the amount determined under paragraph (2)(a).
The refund declaration is not a legislative instrument.
The Secretary must give a copy of a refund declaration to:
the refund recipient; and
the registered provider or former registered provider specified in the refund declaration.
A failure to comply with subsection (1) does not affect the validity of any refund declaration.
Immediately after the Secretary makes a refund declaration, any rights that the refund recipient had when the refund declaration was made to recover an amount equal to the refund amount from the registered provider or former registered provider specified in the refund declaration are, by force of this section, transferred to the Commonwealth.
Note: Any rights that the refund recipient has to receive from the registered provider or former registered provider any additional amounts are not transferred to the Commonwealth by force of this section.
Within 14 days after the Secretary makes a refund declaration, the Commonwealth must pay the refund amount to the refund recipient.
The amounts payable under section 16 are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.
The Minister may, at a particular time, make a refund costs recoupment determination relating to one or more refund declarations if:
before that time, the Minister has informed the Treasurer and the Finance Minister that the Minister intends to make a refund costs recoupment determination relating to those refund declarations; and
at that time, the Commonwealth has not recovered all of each refund amount in relation to those refund declarations; and
at that time, the Commonwealth has not previously made a refund costs recoupment determination relating to each of those refund declarations.
A refund costs recoupment determination must:
be in writing; and
specify the refund declarations to which the determination relates; and
specify the costs recoupment amount (see subsection (3)); and
specify the default event declaration to which the determination relates (see subsection (4)).
The costs recoupment amount specified in a refund costs recoupment determination is the amount equal to the sum of each refund amount that:
is specified in a refund declaration specified in the determination; and
has not been recovered by the Commonwealth at the time the determination is made.
A default event declaration is a default event declaration to which a refund costs recoupment determination relates if the making of the default event declaration was a precondition of the making of the refund declarations specified in the refund costs recoupment determination.
A refund costs recoupment determination is not a legislative instrument.
The Minister may, at a particular time, make an administrative costs recoupment determination relating to a default event declaration if:
before that time, the Minister has informed the Treasurer and the Finance Minister that the Minister intends to make an administrative costs recoupment determination relating to that default event declaration; and
at that time, the Minister considers, on reasonable grounds, that the Commonwealth has not recouped all of the administrative costs relating to the default event determination.
An administrative costs recoupment determination must:
be in writing; and
specify the default event declaration to which it relates; and
specify the costs recoupment amount (see subsection (3)).
The costs recoupment amount specified in an administrative costs recoupment determination must not exceed the sum of:
the amount that the Minister considers, on reasonable grounds, is equal to the amount of the administrative costs relating to the default event declaration specified in the determination that the Commonwealth has not recouped at the time that the determination is made; and
(b) the amount that the Minister considers, on reasonable grounds, is likely to cover the costs of recovering levy that the Commonwealth will be enabled to impose by regulations made under Aged Care (Accommodation Payment Security) Levy Act 2006 as a result of the making of the determination.section 6 of the
An administrative costs recoupment determination is not a legislative instrument.
The Minister may, in writing, delegate to the Secretary all or any of the Minister’s powers or functions under this Act.
In exercising powers or functions delegated under subsection (1), the Secretary must comply with any directions of the Minister.
The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department all or any of the Secretary’s powers or functions under this Act.
In exercising powers or functions delegated under subsection (1), the delegate must comply with any directions of the Secretary.
The Governor-General may make regulations prescribing matters:
required or permitted by this Act to be prescribed; or
necessary or convenient to be prescribed for carrying out or giving effect to this Act; or
(c) necessary or convenient to be prescribed for enabling or facilitating the collection of levy imposed by regulations under Aged Care (Accommodation Payment Security) Levy Act 2006.section 6 of the
Without limiting paragraph (1)(c), regulations prescribing matters necessary or convenient to be prescribed for enabling or facilitating the collection of levy may provide for the following:
the person who is liable to pay levy;
the time levy is due and payable;
liability for levy being a debt due to the Commonwealth;
the methods by which levy may be paid (including by instalments);
the payment of penalties in respect of late payment of levy;
repayments of levy;
repayments of overpayments of levy;
penalties for offences against the regulations, not exceeding a fine of 50 penalty units.
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key— E ndnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history— E ndnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under Legislation Act 2003.section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Endnote 5—Editorial changes
In preparing this compilation for registration, the following kinds of editorial changes were made under the Legislation Act 2003.
Paragraph 9 (1)(b)
Kind of editorial change
Change to punctuation
Details of editorial change
Schedule 3 item 29 of the Aged Care and Other Legislation Amendment Act 2025 instructs to omit “or (f)” and substitute “(f), (h) or (i)” in paragraph 9(1)(b).
This amendment results in paragraph 9(1)(b) appearing as follows:
(b) any of the events mentioned in paragraph (a), (b), (c), (d), (e) (f), (h) or (i) of the definition of insolvency event occur in relation to the person;
This compilation was editorially changed to insert a comma after “(e)” in paragraph 9(1)(b) to correct the punctuation.
Paragraph 9 ( 2 )(b)
Kind of editorial change
Change to punctuation
Details of editorial change
Schedule 3 item 31 of the Aged Care and Other Legislation Amendment Act 2025 instructs to omit “or (f)” and substitute “(f), (h) or (i)” in paragraph 9(2)(b).
This amendment results in paragraph 9(2)(b) appearing as follows:
(b) any of the events mentioned in paragraph (a), (b), (c), (d), (e) (f), (h) or (i) of the definition of insolvency event occur in relation to the person; and
This compilation was editorially changed to insert a comma after “(e)” in paragraph 9(2)(b) to correct the punctuation.