The Regulatory Powers Acts gives regulators the power to monitor and investigate if they think that a person or organisation isn’t following the Aged Care Act.
[Chapter 6 – Part 2 and Part 3]
Monitoring powers
Monitoring powers let authorised officers, with consent, enter and inspect a site to check that people are:
- following the Aged Care Act
- not committing any offences under the Crimes Act 1914 or the Criminal Code if it relates to the Aged Care Act.
Any information given for purposes of the Aged Care Act can also be subject to monitoring.
Monitoring at a site can include:
- searching
- watching activity
- asking questions
- inspecting, recording and copying anything related to the issue.
A site may include a residential care home or a registered provider’s offices.
Authorised officers can use monitoring powers in relation to any rules or requirements of the Aged Care Act.
Investigation powers
Investigation powers are similar to monitoring powers, but authorised officers can only use them in relation to specific provisions in the Aged Care Act. This is because the purpose of investigation powers is to let authorised officers collect evidential material.
Authorised officers can only use investigation powers in relation to the rules or requirements of the Aged Care Act that have an offence or financial penalty (referred to in the Aged Care Act as a civil penalty). They can also use these powers for any offences in the Crimes Act 1914 or the Criminal Code if they relate to the Aged Care Act.
While investigating, authorised officers can take similar actions as monitoring in relation to evidential material, but they can also take – seize – this evidential material if they have a warrant. Evidential material could be anything at the site related to the issue being investigated, such as documents or computer data.
Processes for monitoring and investigating
[Chapter 6 – Part 2 – Division 1 and Part 3 – Division 1]
Monitoring and investigating powers are different tools for different purposes. Authorised officers use them at different times and to do different things, depending on which power they’re using. But the laws and processes around these 2 powers are very similar.
To use monitoring and investigating powers, an authorised officer:
- must enter a site
- must carry an identity card issued by the Commission or the System Governor
- can only enter a site with the consent of the occupier or with a warrant, under the Regulatory Powers Act. An occupier is the owner or someone in charge of the site.
The Aged Care Act includes extra powers to enter sites in other situations. These are explained later in this chapter.
If an authorised officer needs a warrant to enter a site and use monitoring or investigations powers, they will apply for one from an issuing officer. An issuing officer can be a magistrate or a judge of a relevant court.
If an authorised officer has someone helping them use the monitoring or investigation powers, they must follow the authorised officer’s directions.