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Part 8—Entry and search powers

Part 8 Entry and search powers

Division 1 Introduction

64   Simplified outline of this Part

This Part deals with the powers of authorised complaints officers, and regulatory officials, to enter premises and to exercise the search powers in relation to the premises.

Premises may only be entered with the consent of the occupier of the premises and only for specified purposes.

The Commissioner is to appoint authorised complaints officers. The Commissioner must also ensure that identity cards are issued to authorised complaints officers and quality assessors.

Division 2 Powers of authorised complaints officers in relation to premises

65   Power to enter premises and exercise search powers in relation to complaints etc.

             (1)  This section applies if:

                     (a)  in accordance with the rules, the Commissioner is dealing with a complaint or information about:

                              (i)  an approved provider’s responsibilities under the Aged Care Act or the Aged Care Principles; or

                             (ii)  the responsibilities of a service provider of a Commonwealth-funded aged care service under the funding agreement that relates to the service; and

                     (b)  the Commissioner considers that, for the purposes of resolving the complaint or dealing with the information, it is necessary for an authorised complaints officer to exercise powers under this Division.

             (2)  An authorised complaints officer may:

                     (a)  enter any premises; and

                     (b)  exercise the search powers in relation to the premises;

for the purposes of the Commissioner resolving the complaint or dealing with the information.

             (3)  However, an authorised complaints officer is not authorised to enter premises unless the occupier of the premises has consented to the entry.

Note:          An authorised complaints officer must leave the premises if the consent ceases to have effect (see section 66).

66   Consent

             (1)  Before obtaining the consent of an occupier of premises for the purposes of subsection 65(3), an authorised complaints 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)(ba) of the Aged Care Act to cooperate with a person who is 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 4.4 of the Aged Care 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 complaints 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 complaint 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.

67   Asking questions and seeking production of documents

             (1)  If an authorised complaints officer enters premises in accordance with section 65, 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 complaints 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)(ba) of the Aged Care Act to cooperate with a person who is 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 4.4 of the Aged Care Act.

             (3)  A person is not required to comply with a request made under subsection (1).

Division 3 Powers of regulatory officials in relation to premises

68   Power to enter premises and exercise search powers for regulatory purposes

             (1)  This section applies if the Commissioner considers that it is necessary for a regulatory official to exercise powers under this Division for a purpose (the regulatory purpose ) relating to:

                     (a)  the accreditation of an aged care service; or

                     (b)  a quality review of an aged care service or a Commonwealth-funded aged care service; or

                     (c)  the monitoring of the quality of care and services provided by an approved provider of an aged care service; or

                     (d)  the monitoring of the quality of care and services provided by a service provider of a Commonwealth-funded aged care service.

             (2)  The regulatory official may do the following for the regulatory purpose:

                     (a)  enter any premises;

                     (b)  exercise the search powers in relation to the premises.

             (3)  However, the regulatory official is not authorised to enter premises unless the occupier of the premises has consented to the entry.

Note:          The regulatory official must leave the premises if the consent ceases to have effect (see section 69).

69   Consent

             (1)  Before obtaining the consent of an occupier of premises for the purposes of subsection 68(3), a regulatory official 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)(ba) of the Aged Care Act to cooperate with a person who is 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 4.4 of the Aged Care 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 a regulatory official entered premises because of the consent of the occupier of the premises, the official must leave the premises if the consent ceases to have effect.

             (6)  If:

                     (a)  the Commissioner enters premises because of the consent of the occupier of the premises; and

                     (b)  the Commissioner has not shown the occupier evidence of the Commissioner’s identity before entering the premises;

the Commissioner must do so on, or as soon as is reasonably practicable after, entering the premises.

             (7)  If:

                     (a)  a quality assessor enters premises because of the consent of the occupier of the premises; and

                     (b)  the assessor has not shown the occupier the assessor’s identity card before entering the premises;

the assessor must do so on, or as soon as is reasonably practicable after, entering the premises.

70   Asking questions and seeking production of documents

             (1)  If a regulatory official enters premises in accordance with section 68, the official may request a person at the premises:

                     (a)  to answer any questions put by the official; and

                     (b)  to produce any documents or records requested by the official.

             (2)  Before the regulatory official makes a request of an approved provider under subsection (1), the official must inform the provider that the provider has a responsibility under paragraph 63-1(1)(ba) of the Aged Care Act to cooperate with a person who is 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 4.4 of the Aged Care Act.

             (3)  A person is not required to comply with a request made under subsection (1).

Division 4 Search powers

71   Search powers

             (1)  This section applies if:

                     (a)  an authorised complaints officer enters premises in accordance with section 65; or

                     (b)  a regulatory official enters premises in accordance with section 68.

             (2)  The following are the search powers that the authorised complaints officer or regulatory official 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 or official (as the case may be) requires for the purpose of exercising powers in relation to the premises;

                     (h)  the powers set out in subsections 72(1) and (4).

72   Operating electronic equipment

             (1)  The search powers include the power to:

                     (a)  operate electronic equipment on the premises entered in accordance with section 65 or 68; 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.

             (2)  The search powers include the powers referred to in subsection (4) if relevant data is found in the exercise of the power under subsection (1).

             (3)  Relevant data means:

                     (a)  if an authorised complaints officer entered the premises in accordance with section 65—information that is relevant to the purposes for which the premises were so entered; or

                     (b)  if a regulatory official entered premises in accordance with section 68—information that is relevant to the purposes for which the premises were so entered.

             (4)  The powers are as follows:

                     (a)  the power to operate electronic equipment on the premises to put the relevant data 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 relevant data 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.

             (5)  An authorised complaints officer or regulatory official may operate electronic equipment as mentioned in subsection (1) or (4) only if the officer or official (as the case may be) believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

Division 5 Appointment of authorised complaints officers etc.

73   Appointment of authorised complaints officers

             (1)  The Commissioner may, in writing, appoint a person who is a member of the staff of the Commission as an authorised complaints officer for either or both of the following purposes:

                     (a)  the purposes of Divisions 2 and 4 of this Part;

                     (b) the purposes of the rules.

             (2)  The Commissioner must not appoint a person as an authorised complaints officer under subsection (1) unless the Commissioner is satisfied that the person has suitable training or experience to properly perform the functions, or exercise the powers, of an authorised complaints officer.

             (3)  An authorised complaints officer must, in performing the officer’s functions or exercising the officer’s powers, comply with any directions of the Commissioner.

             (4)  If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

74   Identity cards

             (1)  The Commissioner must cause an identity card to be issued to a person who is:

                     (a)  an authorised complaints officer; or

                     (b)  a quality assessor.

Form of identity card

             (2)  The identity card must:

                     (a)  be in the form prescribed by the rules; and

                     (b)  include a photograph of the person that is no more than 5 years old.

Offence

             (3)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be an authorised complaints officer; and

                     (c)  the person does not return the identity card to the Commissioner within 14 days after ceasing to be an authorised complaints officer.

Penalty:  1 penalty unit.

             (4)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

                     (b)  the person ceases to be a quality assessor; and

                     (c)  the person does not return the identity card to the Commissioner within 14 days after ceasing to be a quality assessor.

Penalty:  1 penalty unit.

             (5)  An offence against subsection (3) or (4) is an offence of strict liability.

             (6)  Subsections (3) and (4) do not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code .

Requirement to carry identity card

             (7)  An authorised complaints officer must carry the officer’s identity card at all times when performing functions, or exercising powers, as an authorised complaints officer.

             (8)  A quality assessor must carry the assessor’s identity card at all times when performing functions, or exercising powers, as a quality assessor.