Under the Aged Care Act, there are extra investigating powers that authorised officers can use. These powers let an authorised officer take more action when they find something at a site that’s relevant to their investigation. Someone helping the investigation can also use these extra powers.
Moving and using equipment
The authorised officer can bring equipment onto the site to use to help them decide if they can take something as evidence. For example, a computer with specific software to help the authorised officer examine data that might be evidence. The authorised officer can also use equipment already at the site to decide if they can take something as evidence.
The authorised officer, or person helping them, can also move an item to another place to find out if it can be taken as evidence. They can only do this if the occupier agrees, or if:
- it’s significantly more sensible to move the item, thinking about the time and cost involved in moving the item and the availability of an expert to assist and
- the authorised officer or person helping them believes the item is evidence or that the item contains evidence.
In general, the authorised officer must tell the occupier where the item will be moved and for how long. They must also let the occupier, or a representative, be there while the item is being processed. The only exception is if the authorised officer believes that telling the occupier would put the investigation or someone’s safety at risk. There are time limits on how long the authorised officer can take an item for – which is generally no longer than 14 days.
If an authorised officer, or someone helping them, finds evidence on electronic equipment, they can copy it. If it’s not possible to copy the data, they can take the equipment. They must destroy any data that isn’t needed.
Orders to help
Under the Aged Care Act, an issuing officer can order a specific person to help an authorised officer access data. The issuing officer can only make this order if they believe there is data on a computer or storage device that can be used as evidence.
The issuing officer can only make an order to help for someone who has knowledge of the computer or device or its data protection systems. This person must also be someone who:
- owns or leases the computer or device
- is employed or contracted by the owner or lessee of the computer or device
- uses or has used the computer or device
- is system administrator for the computer or device’s system
- is reasonably suspected of having committed the offence or not followed a provision with a financial penalty – this only applies if the authorised officer entered the site under an investigation warrant.
The specific person must give reasonable and necessary help to access or copy the data. The person must also have some level of knowledge of the device. For example, they might have access to a device’s password or are familiar with the device’s systems.
If the person doesn’t follow the order to help, the penalty is up to 2 years in prison.
Compensation for damage
The Aged Care Act also sets out pathways for people to claim compensation for any damage to electronic equipment used or moved under these extra powers.
Extra investigating powers in practice
Case study: The Commissioner believes a provider is getting subsidies for services they haven’t delivered and approves an authorised officer to investigate.
Applying the regulation: Using these powers, the authorised officer finds a password-protected computer at the site. They believe the computer has evidence on it, such as timesheets, billing records and relevant emails about the subsidy claims.
The authorised officer decides that looking through the data while at the site isn’t practical or efficient. They also need expert help to get through the password protection. The authorised officer tells the occupier where they’re taking the computer and how long they are taking it for.
These extra powers let the authorised officer move this computer to a different place where they can inspect the data with an expert.