Injunctions and enforceable undertakings are regulation tools under the Regulatory Powers Act. These are used to make sure persons are meeting certain parts of the law referred to as ‘enforceable provisions’.
Enforceable undertakings and injunctions are both binding regulatory powers that require a person to take specified action or refrain from taking specified action. A person may volunteer to enter an enforceable undertaking to address non-compliance and avoid further compliance action. An injunction can be issued without the person’s agreement or consent.
What is enforceable
In the Aged Care Act, enforceable provisions are:
- the rules and requirements that set out provider obligations
- any Rules that support them.
Enforceable undertakings
An enforceable undertaking is an agreement between the Commissioner or the System Governor and a person who has not followed an enforceable provision. Whether the Commissioner or the System Governor accepts an enforceable undertaking given by a person depends on the specific obligation that has not been followed.
The enforceable undertaking sets out the steps the person will take to meet their obligations. This could include putting things in place to deal with a problem or stopping something from happening that goes against the Aged Care Act.
If a person fails to comply with an enforceable undertaking, the Commissioner or System Governor may take court action against the person.
Undertaking for compensation
As well as the undertakings specified in the Regulatory Powers Act, persons can also agree, through an undertaking, to pay compensation to someone. This could be if someone suffered loss or damage because the person didn’t meet their obligations. This only applies to the enforceable provisions mentioned above.
Injunctions
If a person isn’t meeting obligations set out in the enforceable provisions, the Commissioner or System Governor can apply to the court for an injunction. An injunction is a court order that requires the person to do something, or not do something, to meet their obligations. Injunctions are legally binding, which means a person must follow it.