Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (116 of 2019)
Schedule 2 Responsibilities of approved providers etc.
Aged Care Act 1997
29 Part 6.4
Repeal the Part, substitute:
Part 6.4 - Compliance and enforcement powers
Division 90 - Introduction
90-1 Simplified outline of this Part
An APS employee in the Department may be appointed as an *authorised officer.
An authorised officer may enter premises with consent of the occupier and exercise *search powers there for the purposes of the Secretary:
(a) making a decision on an application made under this Act or the Aged Care (Transitional Provisions) Act 1997; or
(b) determining whether the conditions to which a grant under Chapter 5 of this Act is subject have been complied with.
An authorised officer may enter premises under a warrant or with consent of the occupier and exercise monitoring powers there under Part 2 of the *Regulatory Powers Act, for the purposes of determining:
(a) whether section 25-3 (which deals with the appraisal of the level of care needed by care recipients) or sections 27-3 and 27-5 (which deal with the reappraisal of the level of care needed by care recipients) of this Act have been complied with; or
(b) whether information given in compliance, or purported compliance, with a provision of Chapter 3 of this Act or a provision of Chapter 3 of the Aged Care (Transitional Provisions) Act 1997 (which both deal with *subsidies) is correct.
An authorised officer may, under Part 3 of the Regulatory Powers Act, gather material that relates to the contravention of a *civil penalty provision in this Act.
Parts 2 and 3 of the Regulatory Powers Act are applied by this Part with suitable modifications.
The Secretary may require a person in certain circumstances to attend before an authorised officer to answer questions or provider information or documents.
Table of Divisions
90 Introduction
91 Entry and search powers relating to certain applications and grants
92 Regulatory Powers
93 Notice to attend to answer questions etc.
94 Appointment of authorised officers
Division 91 - Entry and search powers relating to certain applications and grants
91-1 Power to enter premises and exercise search powers in relation to certain applications and grants
(1) This section applies if the Secretary considers that it is necessary for an *authorised officer to exercise powers under this Division for the purposes of the Secretary:
(a) making a decision on an application made under this Act or the Aged Care (Transitional Provisions) Act 1997; or
(b) determining whether the conditions to which a grant under Chapter 5 of this Act is subject have been complied with.
(2) An *authorised officer may:
(a) enter any premises; and
(b) exercise the *search powers in relation to the premises;
for the purposes of the Secretary making the decision or determination.
(3) However, an *authorised officer is not authorised to enter premises unless the occupier of the premises has consented to the entry.
Note: An authorised officer must leave the premises if the consent ceases to have effect (see section 91-2).
91-2 Consent
(1) Before obtaining the consent of an occupier of premises for the purposes of subsection 91-1(3), an *authorised officer must:
(a) inform the occupier that the occupier may refuse to give consent or may withdraw consent; and
(b) if the occupier is an approved provider - inform the occupier that the occupier has a responsibility under paragraph 63-1(1)(b) to cooperate with a person who is performing functions, or exercising powers, under this Part.
Note: Failure to comply with that responsibility may result in a sanction being imposed on the approved provider under Part 7B of the *Quality and Safety Commission Act.
(2) A consent has no effect unless the consent is voluntary.
(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
(5) If an *authorised officer entered premises because of the consent of the occupier of the premises, the officer must leave the premises if the consent ceases to have effect.
(6) If:
(a) an *authorised officer enters premises because of the consent of the occupier of the premises; and
(b) the officer has not shown the occupier the officer's identity card before entering the premises;
the officer must do so on, or as soon as is reasonably practicable after, entering the premises.
91-3 Search powers
(1) If an *authorised officer enters premises in accordance with section 91-1, the following are the search powers that the officer may exercise in relation to the premises:
(a) the power to search the premises and any thing on the premises;
(b) the power to examine or observe any activity conducted on the premises;
(c) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(d) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(e) the power to inspect any document on the premises;
(f) the power to take extracts from, or make copies of, any such document;
(g) the power to take onto the premises such equipment and materials as the officer requires for the purpose of exercising powers in relation to the premises;
(h) the powers set out in subsections (2) and (3).
(2) The search powers include the power to:
(a) operate electronic equipment on the premises entered in accordance with section 91-1; and
(b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it.
(3) If information that is relevant to the purposes for which the *authorised officer entered the premises under section 91-1 is found in the exercise of the power under subsection (2), the search powers include the following powers:
(a) the power to operate electronic equipment on the premises to put the information in documentary form and remove the documents so produced from the premises;
(b) the power to operate electronic equipment on the premises to transfer the information to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
and remove the disk, tape or other storage device from the premises.
(4) An *authorised officer may operate electronic equipment as mentioned in subsection (2) or (3) only if the officer believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
91-4 Asking questions and seeking production of documents
(1) If an *authorised officer enters premises in accordance with section 91-1, the officer may request a person at the premises:
(a) to answer any questions put by the officer; and
(b) to produce any documents or records requested by the officer.
(2) Before the *authorised officer makes a request of an approved provider under subsection (1), the officer must inform the provider that the provider has a responsibility under paragraph 63-1(1)(b) to cooperate with a person who is performing functions, or exercising powers, under this Part.
Note: Failure to comply with that responsibility may result in a sanction being imposed on the approved provider under Part 7B of the *Quality and Safety Commission Act.
(3) A person is not required to comply with a request made under subsection (1).
Division 92 - Regulatory powers
92-1 Monitoring powers
Provisions subject to monitoring
(1) The following provisions of this Act are subject to monitoring under Part 2 of the *Regulatory Powers Act:
(a) section 25-3 (which deals with the appraisal of the level of care needed by care recipients);
(b) sections 27-3 and 27-5 (which deal with the reappraisal of the level of care needed by care recipients).
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance, or purported compliance, with the following provisions of this Act is subject to monitoring under Part 2 of the *Regulatory Powers Act:
(a) a provision of Chapter 3 of this Act (which deals with *subsidies);
(b) a provision of Chapter 3 of the Aged Care (Transitional Provisions) Act 1997 (which deals with subsidies).
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
(3) For the purposes of Part 2 of the *Regulatory Powers Act, a provision of Division 29A of this Act is related to the provisions mentioned in subsection (1).
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(4) For the purposes of Part 2 of the *Regulatory Powers Act as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) an *authorised officer is an authorised applicant; and
(b) an authorised officer is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Secretary is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the *Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the Aged Care (Transitional Provisions) Act 1997.
Persons assisting
(5) An *authorised officer may be assisted by other persons in exercising powers or performing functions under Part 2 of the *Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
Use of force in executing warrant
(6) In executing a warrant issued under Part 2 of the *Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) an *authorised officer may use such force against things as is necessary and reasonable in the circumstances; and
(b) a person assisting the officer may use such force against things as is necessary and reasonable in the circumstances.
Extension to external Territories
(7) Part 2 of the *Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), extends to the same external Territories in which this Act applies.
Note: See section 4-1 for the external Territories in which this Act applies.
92-2 Modifications of Part 2 of the Regulatory Powers Act
(1) This section applies in relation to Part 2 of the *Regulatory Powers Act as that Part applies in relation to the following:
(a) the provisions mentioned in subsection 92-1(1) of this Act;
(b) the information mentioned in subsection 92-1(2) of this Act.
Consent
(2) Before obtaining the consent of an occupier of premises who is an approved provider for the purposes of paragraph 18(2)(a) of the *Regulatory Powers Act, an *authorised officer must inform the occupier that the occupier has a responsibility under paragraph 63-1(1)(b) of this Act to cooperate with a person who is performing functions, or exercising powers, under Part 2 of the Regulatory Powers Act.
Note: See section 25 of the Regulatory Powers Act for additional rules about consent.
Securing electronic equipment etc.
(3) Sections 21, 22 and 33 of the *Regulatory Powers Act are taken to apply as if:
(a) a reference to "24 hours" in sections 21 and 22 of that Act were a reference to "48 hours"; and
(b) a reference to a "24-hour period" in sections 21 and 22 of that Act were a reference to a "48-hour period".
Asking questions and seeking production of documents
(4) The second reference to the occupier of premises in subsection 24(2) of the *Regulatory Powers Act is taken to include a reference to any other person on the premises.
(5) Before requesting a person who is an approved provider to answer a question, or produce a document, under subsection 24(2) of the *Regulatory Powers Act, an *authorised officer must inform the person that the person has a responsibility under paragraph 63-1(1)(b) of this Act to cooperate with a person who is performing functions, or exercising powers, under Part 2 of the Regulatory Powers Act.
(6) If an *authorised officer requests a person to answer a question, or produce a document, under subsection 24(2) of the *Regulatory Powers Act, the person is not required to comply with the request.
92-3 Investigation powers
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the *Regulatory Powers Act if it is a *civil penalty provision.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(2) For the purposes of Part 3 of the *Regulatory Powers Act as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an *authorised officer is an authorised applicant; and
(b) an authorised officer is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Secretary is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the *Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the Aged Care (Transitional Provisions) Act 1997.
Persons assisting
(3) An *authorised officer may be assisted by other persons in exercising powers or performing functions under Part 3 of the *Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
Use of force in executing warrant
(4) In executing a warrant issued under Part 3 of the *Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an *authorised officer may use such force against things as is necessary and reasonable in the circumstances; and
(b) a person assisting the officer may use such force against things as is necessary and reasonable in the circumstances.
Extension to external Territories
(5) Part 3 of the *Regulatory Powers Act, as it applies in relation to a provision mentioned in subsection (1), extends to the same external Territories in which this Act applies.
Note: See section 4-1 for the external Territories in which this Act applies.
92-4 Modifications of Part 3 of the Regulatory Powers Act
(1) This section applies in relation to Part 3 of the *Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 92-3(1) of this Act.
Securing electronic equipment etc.
(2) Sections 51 and 74 of the *Regulatory Powers Act are taken to apply as if:
(a) a reference to "24 hours" in section 51 of that Act were a reference to "48 hours"; and
(b) a reference to a "24-hour period" in section 51 of that Act were a reference to a "48-hour period".
Asking questions and seeking production of documents
(3) The second reference to the occupier of premises in subsection 54(2) of the *Regulatory Powers Act is taken to include a reference to any other person on the premises.
(4) Before requesting a person who is an approved provider to answer a question, or produce a document, under subsection 54(2) of the *Regulatory Powers Act, an *authorised officer must inform the person that the person has a responsibility under paragraph 63-1(1)(b) of this Act to cooperate with a person who is performing functions, or exercising powers, under Part 3 of the Regulatory Powers Act.
Division 93 - Notice to attend to answer questions etc.
93-1 Notice to attend to answer questions etc. relevant to certain matters
(1) This section applies if the Secretary believes on reasonable grounds that a person has information or documents relevant to any of the following matters (the relevant matter ):
(a) an application made under this Act or the Aged Care (Transitional Provisions) Act 1997;
(b) an appraisal of the level of care needed by care recipients made under section 25-3 of this Act;
(c) a reappraisal of the level of care needed by care recipients made under sections 27-3 and 27-5 of this Act;
(d) a claim by an approved provider for payment of *subsidy under Chapter 3 of this Act or Chapter 3 of the Aged Care (Transitional Provisions) Act 1997;
(e) whether the conditions to which a grant under Chapter 5 of this Act is subject have been complied with.
(2) The Secretary may, by written notice, require the person to attend before an *authorised officer to do either or both of the following:
(a) to answer questions relating to the relevant matter;
(b) to give such information or documents (or copies of documents) as are specified in the notice.
Notice requirements
(3) If a notice is given to a person under subsection (2), the notice must:
(a) specify the *authorised officer before whom the person is required to attend; and
(b) specify the day on which, and the time and place at which, the person is required to attend.
(4) The day specified under paragraph (3)(b) must be at least 14 days after the notice is given.
Circumstances in which a person is not required to comply
(5) A person is not required to comply with a requirement of a notice given to the person under subsection (2) if the requirement does not relate to the affairs of an approved provider that is a *corporation.
Offence
(6) A person commits an offence if:
(a) the person is given a notice under subsection (2); and
(b) the person fails to comply with a requirement of the notice; and
(c) the requirement relates to the affairs of an approved provider and the provider is a *corporation.
Penalty: 30 penalty units.
Reasonable compensation
(7) A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement of a notice given to the person under subsection (2) to give copies of documents.
93-2 Attending before authorised officer to answer questions
(1) This section applies if:
(a) a person is given a notice under subsection 93-1(2); and
(b) the notice requires the person to attend before an *authorised officer to answer questions; and
(c) the person attends before the authorised officer for that purpose.
(2) The *authorised officer may question the person on oath or affirmation and may, for that purpose:
(a) require the person to take an oath or make an affirmation; and
(b) administer an oath or affirmation to the person.
(3) The oath or affirmation to be taken or made by the person for the purposes of subsection (2) is an oath or affirmation that the statements that the person will make will be true.
Circumstances in which a person is not required to take an oath etc.
(4) A person is not required to comply with a requirement under subsection (2) to take an oath or make an affirmation for the purposes of answering questions if those questions do not relate to the affairs of an approved provider that is a *corporation.
Note: Approved providers have a responsibility under paragraph 63-1(1)(b) to cooperate with a person who is performing functions, or exercising powers, under this Part. Failure to comply with that responsibility may result in a sanction being imposed on the provider under Part 7B of the *Quality and Safety Commission Act.
Offence
(5) A person commits an offence if:
(a) the person is required by an *authorised officer to take an oath or make an affirmation for the purposes of answering questions; and
(b) the person refuses or fails to comply with the requirement; and
(c) the questions relate to the affairs of an approved provider and the provider is a *corporation.
Penalty: 30 penalty units.
Division 94 - Appointment of authorised officers
94-1 Authorised officers must carry identity card
An *authorised officer must carry the officer's *identity card at all times when performing functions, or exercising powers, under Division 91 as an authorised officer.
Note: An authorised officer is also required to carry the officer's identity card when exercising powers under Part 2 or 3 of the *Regulatory Powers Act (see subsections 35(6) and 76(6) of that Act).
94-2 Appointment of authorised officers
(1) The Secretary may, in writing, appoint a person who is an APS employee in the Department as an *authorised officer for the purposes of this Part.
(2) The Secretary must not appoint a person as an *authorised officer under subsection (1) unless the Secretary is satisfied that the person has suitable training or experience to properly perform the functions, or exercise the powers, of an authorised officer.
(3) An *authorised officer must, in performing the officer's functions or exercising the officer's powers, comply with any directions of the Secretary.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.