Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (116 of 2019)
Schedule 2 Responsibilities of approved providers etc.
Aged Care Quality and Safety Commission Act 2018
85 After Part 8
Insert:
Part 8A - Enforcement of responsibilities of approved providers
Division 1 - Introduction
74A Simplified outline of this Part
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 the following:
(a) whether a provision of Chapter 4 of the Aged Care Act has been, or is being, complied with;
(b) whether information given in compliance or purported compliance with a provision of that chapter is correct.
An authorised officer may, under Part 3 of the Regulatory Powers Act, gather material that relates to the contravention of offences against:
(a) this Act or the Aged Care Act; or
(b) the Crimes Act 1914 or the Criminal Code that relates to this Act or the Aged Care Act.
Parts 2 and 3 of the Regulatory Powers Act are applied by this Part with suitable modifications.
The Commissioner may require a person in certain circumstances to attend before an authorised officer to answer questions or give certain information or documents.
Division 2 - Regulatory powers
74B Monitoring powers
Provisions subject to monitoring
(1) A provision of Chapter 4 of the Aged Care Act is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether Chapter 4 of the Aged Care Act (which deals with the responsibilities of approved providers) has been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with a provision of Chapter 4 of the Aged Care Act is subject to monitoring under Part 2 of the Regulatory Powers Act.
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 the Aged Care Act that is referred to in Chapter 4 of the Aged Care Act is related to the provision mentioned in subsection (1) and the information mentioned in subsection (2).
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 provision 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 Commissioner 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, the Aged Care 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 provision 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 provision 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 provision mentioned in subsection (1) and the information mentioned in subsection (2), extends to the external Territories other than the Territory of Ashmore and Cartier Islands.
74C 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 provision mentioned in subsection 74B(1) of this Act;
(b) the information mentioned in subsection 74B(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 the Aged Care 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 the Aged Care 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.
74D 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) an offence against this Act or the Aged Care Act; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act or the Aged Care Act.
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 Commissioner 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, the Aged Care 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 external Territories other than the Territory of Ashmore and Cartier Islands.
74E 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 74D(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 the Aged Care Act to cooperate with a person who is performing functions, or exercising powers, under Part 3 of the Regulatory Powers Act.
Division 3 - Notice to attend to answer questions etc.
74F Notice to attend to answer questions etc. relevant to whether aged care responsibility is being complied with
(1) If the Commissioner believes on reasonable grounds that a person has information or documents relevant to whether an approved provider, or a former approved provider, is complying with an aged care responsibility of the provider or former provider, the Commissioner 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 that matter;
(b) to give such information or documents (or copies of documents) as are specified in the notice.
Notice requirements
(2) If a notice is given to a person under subsection (1), 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.
(3) The day specified under paragraph (2)(b) must be at least 14 days after the notice is given.
Circumstances in which a person is not required to comply
(4) A person is not required to comply with a requirement of a notice given to the person under subsection (1) if the requirement does not relate to the affairs of an approved provider, or former approved provider, that is a corporation.
Offence
(5) A person commits an offence if:
(a) the person is given a notice under subsection (1); 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 or former approved provider; and
(d) the provider or former provider is a corporation.
Penalty: 30 penalty units.
Reasonable compensation
(6) 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 (1) to give copies of documents.
74G Attending before authorised officer to answer questions
(1) This section applies if:
(a) a person is given a notice under subsection 74F(1); 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, or former approved provider, that is a corporation.
Note: Approved providers have a responsibility under paragraph 63-1(1)(b) of the Aged Care Act 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 this 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 or former approved provider; and
(d) the provider or former provider is a corporation.
Penalty: 30 penalty units.