Investigation Principles 2007 (Cth)
Investigation Principles 2007
as amended
made under subsection 96-1 (1) of the
Aged Care Act 1997
This compilation was prepared on 20 May 2011
taking into account amendments up to Investigation Amendment Principles
2011 (No. 1)
Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra
Contents
Part 1Preliminary
16A.1Name of Principles [see Note 1] 4
16A.2Commencement 4
16A.3Revocation 4
16A.4Definitions 4
Part 2Sources of information
16A.5Giving information to Secretary 6
Part 3Investigations by Secretary
Division 3.1 Investigation of information given to Secretary
16A.6Threshold test — what matters are to be investigated 7
16A.7Circumstances in which Secretary may decide not to investigate 7
16A.8How investigations are to be conducted 7
16A.9Confidentiality 8
16A.10Referral to other organisations 8
16A.11Use of information obtained during investigation 8
16A.12Continuation of investigation 8
Division 3.2 Investigation on Secretary’s own motion
16A.13Own motion investigation 9
Part 4Outcomes of investigation by Secretary
16A.14Ending an investigation 10
16A.15Determining whether there has been a breach 10
16A.16Action following determination of breach 10
16A.17Form and conditions of notice of required action 10
Part 5Feedback
16A.18Feedback if no further proposed action 12
16A.19Feedback if breach of relevant provider responsibilities 12
16A.20Feedback to other persons 13
Part 6Aged Care Commissioner
Division 6.1 Examination of Secretary’s decisions by Aged Care Commissioner
16A.21Application by care recipient or representative for examination 14
16A.22Application by relevant provider for examination 14
16A.23Form of application for examination 15
16A.24Decisions examinable by Aged Care Commissioner 15
16A.25Secretary to consider Aged Care Commissioner’s recommendation 16
Division 6.2 Examination by Aged Care Commissioner of certain complaints
16A.26Complaints to Aged Care Commissioner 16
16A.27Aged Care Commissioner’s discretion to examine complaints 17
16A.28Notice of examination 17
Part 7Transitional
16A.29Transitional 18
Notes 19
Note: Part 6.4A of the Aged Care Act 1997
Part 6.4A of the Aged Care Act 1997 is about the investigation of matters relating to the Act or the Principles made under section 96‑1 of the Act.
These Principles deal with:
(a) which matters are to be investigated;
(b) how investigations are to be conducted;
(c) considerations in making decisions relating to investigations;
(d) procedures for the Aged Care Commissioner to examine certain decisions made in relation to investigations and also to examine certain complaints.
Part 1 Preliminary
16A.1 Name of Principles [see Note 1]
These Principles are the Investigation Principles 2007
16A.2 Commencement
These Principles commence on 1 May 2007.
16A.3 Revocation
The Committee Principles 1997 are revoked.
16A.4 Definitions
In these Principles:
Act means the Aged Care Act 1997.
aggrieved person means a care recipient of the relevant provider, or his or her representative, to whom a matter under investigation relates.
examinable decision means a decision examinable by the Aged Care Commissioner under section 16A.24.
informant, for the investigation process, means the person who gave the information to which the investigation relates.
investigation process means the process under Part 3.
notice of required action has the meaning given by section 16A.16.
own motion investigation has the meaning given by section 16A.13.
Principles means the Principles made under section 96‑1 of the Act.
relevant provider, for the investigation process, means the approved provider to which the investigation relates.
representative, of a care recipient, includes:
(a) an advocate for the care recipient; and
(b) a legal guardian of the care recipient; and
(c) a carer or relative of the care recipient.
Part 2 Sources of information
16A.5 Giving information to Secretary
(1) A person may give to the Secretary (by way of complaint or otherwise) information about a matter involving an approved provider’s responsibilities under the Act or Principles.
(2) Information may be given orally or in writing, and may be given anonymously.
(3) An informant may ask the Secretary to keep the following confidential:
(a) the identity of the informant;
(b) the identity of a person included in the information;
(c) any other details included in the information.
(4) An informant may withdraw from the investigation process at any time.
Note An informant who withdraws from the investigation process ceases to have a right to be given feedback about the outcome of the investigation. However, the Secretary may decide to give feedback to an informant who has withdrawn from the process (see section 16A.20).
Part 3 Investigations by Secretary
Division 3.1 Investigation of information given to Secretary
16A.6 Threshold test — what matters are to be investigated
(1) If the Secretary receives information mentioned in section 16A.5, the Secretary must assess the information to determine whether it relates to an approved provider’s responsibilities under the Act or Principles.
(2) Subject to section 16A.7, if the information relates to an approved provider’s responsibilities under the Act or Principles, the Secretary must investigate the matter.
16A.7 Circumstances in which Secretary may decide not to investigate
The Secretary may decide not to investigate a matter relating to an approved provider’s responsibilities if the Secretary is satisfied that:
(a) the provision of the information under section 16A.5 is frivolous or vexatious; or
(b) the information was not given in good faith; or
(c) the matter relates to an issue that has been, or is, the subject of a legal proceeding; or
(d) the matter relates to an issue that has been dealt with under these Principles or the Committee Principles 1997 as they then existed; or
(e) the matter relates to an event:
(i) that occurred more than 1 year before the information was given to the Secretary; and
(ii) that is not ongoing; or
(f) having regard to all the circumstances, investigation of the matter is not warranted.
16A.8 How investigations are to be conducted
(1) If the Secretary is satisfied that a matter requires investigation, the Secretary may conduct the investigation in the manner that the Secretary considers appropriate for the purpose of determining whether the relevant provider has, or has not, breached its responsibilities under the Act or Principles.
(2) As soon as possible after the commencement of the investigation, the Secretary must notify the relevant provider about the investigation, unless the Secretary considers that the notification will, or is likely to:
(a) harm the investigation; or
(b) place the safety, health or well‑being of the informant or a care recipient at risk; or
(c) place the informant or a care recipient at risk of intimidation or harassment.
(3) In conducting the investigation, the Secretary may, but is not required to, do any of the following:
(a) analyse and review documents;
(b) visit the aged care service;
(c) meet with the informant (if known), the relevant provider or any other person;
(d) arrange for the informant (if known and if the informant’s identity is not required to be kept confidential), the relevant provider or any other person to meet with one another to try to resolve any issues in dispute;
(e) request information from persons.
16A.9 Confidentiality
(1) The Secretary must ensure that any request for confidentiality under subsection 16A.5 (3) is complied with unless the Secretary considers that doing so will, or is likely to:
(a) harm the investigation; or
(b) place the safety, health or well‑being of the informant or a care recipient at risk; or
(c) place the informant or a care recipient at risk of intimidation or harassment.
(2) The Secretary must take all reasonable steps to notify the informant before deciding not to keep confidential a matter that the informant has requested be kept confidential under subsection 16A.5 (3).
16A.10 Referral to other organisations
If the Secretary considers that a matter requires, or may require, investigation or other action by another organisation, the Secretary may refer the matter to the organisation.
16A.11 Use of information obtained during investigation
Nothing in this Part prevents the use of information that was obtained, or that became known, during the investigation process for other purposes related to the administration of the Act or Principles.
16A.12 Continuation of investigation
The investigation process may continue even if:
(a) the matter has been referred to another organisation; or
(b) the informant has withdrawn from the process.
Division 3.2 Investigation on Secretary’s own motion
16A.13 Own motion investigation
Nothing in this Part prevents the Secretary from conducting an investigation on the Secretary’s own motion, based on information known to the Secretary or the Department (own motion investigation).
Part 4 Outcomes of investigation by Secretary
16A.14 Ending an investigation
The Secretary may end an investigation at any time, with or without determining whether the relevant provider has, or has not, breached its responsibilities under the Act or Principles.
16A.15 Determining whether there has been a breach
After investigation, the Secretary may determine whether the relevant provider has, or has not, breached its responsibilities under the Act or Principles.
16A.16 Action following determination of breach
(1) This section applies if the Secretary determines that the relevant provider has breached its responsibilities under the Act or Principles.
(2) The Secretary must give to the relevant provider:
(a) written notification that it has breached its responsibilities under the Act or Principles; and
(b) a statement that it may apply to the Aged Care Commissioner for examination of this decision under Part 6.
(3) The Secretary may give to the relevant provider a notice specifying the action that the relevant provider must take to comply with its responsibilities under the Act or Principles (notice of required action).
(4) If, before a notice of required action is given, the relevant provider complies, or takes appropriate action to comply, with its responsibilities in a way that is satisfactory to the Secretary, the Secretary may (instead of giving the notice of required action) give a written acknowledgment of the action taken by the relevant provider.
(5) Nothing in this section prevents the Secretary from taking action under Part 4.4 of the Act instead of action under these Principles.
16A.17 Form and conditions of notice of required action
(1) A notice of required action must be in writing and may be subject to any conditions that the Secretary may specify in the notice.
(2) The Secretary may add a condition to, or vary or revoke a condition of, a notice of required action.
(3) The relevant provider must comply with the notice of required action and any conditions to which the notice is subject, including a condition that has been added or varied.
(4) The notice of required action must include a statement that the relevant provider may apply to the Aged Care Commissioner under Part 6 for examination of the decision to give the notice or a decision setting, adding or varying the conditions of the notice.
Note If a relevant provider fails to comply with a notice of required action, sanctions may be imposed under Part 4.4 of the Act. Additional notice and information are required before sanctions can be imposed (see Division 67 of the Act).
Part 5 Feedback
16A.18 Feedback if no further proposed action
(1) This section applies if the Secretary makes a decision:
(a) that information given under section 16A.5 is not to be investigated because the Secretary has decided not to investigate the matter, in accordance with section 16A.7; or
(b) to end an investigation; or
(c) that the relevant provider has not breached its responsibilities.
(2) This section does not apply to a person who gives information anonymously.
(3) The Secretary must give the following written feedback:
(a) if the information was given under section 16A.5 by a care recipient or his or her representative and the information related to the care recipient’s care, to the care recipient (or his or her representative):
(i) a statement of reasons for the decision; and
(ii) if the decision is of a kind mentioned in paragraph (1) (b) or (c) — a statement that the care recipient (or his or her representative) may apply to the Aged Care Commissioner under Part 6 for examination of the decision; and
(b) if the information was given by another person for whom the Secretary has contact details, unless that person asked not to be given feedback on the matter, to the person — a statement of reasons for the decision; and
(c) to the relevant provider — a statement of reasons for the decision.
16A.19 Feedback if breach of relevant provider responsibilities
(1) This section applies if the Secretary makes a decision that the relevant provider has breached its responsibilities.
(2) The Secretary must give the following written feedback:
(a) if the information was given under section 16A.5 by a care recipient or his or her representative and the information related to the care recipient’s care, to the care recipient (or his or her representative):
(i) a statement of reasons for the decision; and
(ii) if a notice of required action has not been given to the relevant provider — a statement that the care recipient (or his or her representative) may apply to the Aged Care Commissioner under Part 6 for examination of the decision not to give a notice of required action; and
(iii) if a notice of required action has been given to the relevant provider:
(A) a statement of any conditions of the notice of required action that relate to the matter raised by the care recipient (or his or her representative); and
(B) a statement that the care recipient (or his or her representative) may apply to the Aged Care Commissioner under Part 6 for examination of the decision of the Secretary to set, or not to set, a condition that relates to the matter raised by the care recipient (or his or her representative);
(b) if the information was given by another person for whom the Secretary has contact details, unless that person asked not to be given feedback on the matter, to the person — a statement of reasons for the decision.
16A.20 Feedback to other persons
The Secretary may give feedback relating to an investigation to any other person or organisation that the Secretary considers has sufficient relevant interest in the matter.
Part 6 Aged Care Commissioner
Note
The Aged Care Commissioner’s 3 main areas of responsibility are:
(a) dealing with complaints about the Secretary’s processes for handling matters under the Investigation Principles 2007 and the conduct of accreditation bodies relating to their responsibilities under the Accreditation Grant Principles or the conduct of persons carrying out audits, or making support contacts or assessment contacts under those Principles;
(b) examining decisions mentioned in section 16A.21 or 16A.22;
(c) undertaking its own investigations in relation to the matters mentioned in paragraph (a) (see Act, s 95A‑1).
Division 6.1 Examination of Secretary’s decisions by Aged Care Commissioner
16A.21 Application by care recipient or representative for examination
An aggrieved person who is dissatisfied about any of the following decisions may, within 14 days after being told by the Secretary about the decision, apply to the Aged Care Commissioner for examination of the decision:
(aa) a decision by the Secretary under section 16A.7 not to investigate a matter;
(a) a decision by the Secretary under section 16A.14 to end an investigation;
(b) a determination by the Secretary under section 16A.15 that the relevant provider has not breached its responsibilities under the Act or Principles;
(c) a decision by the Secretary not to issue a notice of required action;
(d) a decision by the Secretary setting, adding or varying conditions of a notice of required action that directly relates to the aggrieved person.
16A.22 Application by relevant provider for examination
A relevant provider who is dissatisfied about any of the following decisions may, within 14 days after being told by the Secretary about the decision, apply to the Aged Care Commissioner for examination of the decision:
(a) a determination by the Secretary under section 16A.15 that the relevant provider has breached its responsibilities under the Act or Principles;
(b) a decision by the Secretary to issue a notice of required action;
(c) a decision by the Secretary setting, adding or varying conditions of a notice of required action.
16A.23 Form of application for examination
(1) An application for examination must:
(a) state the reasons (other than dissatisfaction with the decision) why examination is sought; and
(b) be received by the Aged Care Commissioner within 14 days after the day when the applicant was told about, or given feedback on, the decision.
(2) The application may be supported by additional information.
(3) If an application is made orally, the Commissioner may:
(a) record the application in writing; or
(b) at any time, require the applicant to record the application in writing.
(4) If the Commissioner requires the applicant to record the application in writing, the Commissioner may decline to examine the decision until the applicant does so.
16A.24 Decisions examinable by Aged Care Commissioner
(1) A decision is examinable by the Aged Care Commissioner if:
(a) the decision is a decision mentioned in section 16A.21 or 16A.22; and
(b) the aggrieved person or relevant provider made an application for examination of the decision.
(1A) A reconsideration mentioned in subsection 16A.25 (1) is examinable by the Aged Care Commissioner only:
(a) if the examinable decision is a decision mentioned in paragraph 16A.21 (a) or (b); and
(b) if the decision on reconsideration is a decision mentioned in paragraph 16A.22 (b); and
(c) to the extent that it relates to a decision to issue a notice of required action.
(2) The Aged Care Commissioner may examine an examinable decision in the manner that the Commissioner considers appropriate.
(3) The Aged Care Commissioner may refuse to examine an examinable decision if the Commissioner is satisfied that:
(a) the application for examination is frivolous or vexatious; or
(b) the application was not made in good faith; or
(c) the application for examination relates to a matter that is, or has been, the subject of a legal proceeding.
(4) Within 60 days after the day when the Aged Care Commissioner receives an application for examination, the Aged Care Commissioner must give to the Secretary:
(a) a recommendation about the examinable decision; or
(b) a report about a refusal, under subsection (3), to examine the examinable decision.
16A.25 Secretary to consider Aged Care Commissioner’s recommendation
(1) After the Secretary receives a recommendation from the Aged Care Commissioner about an examinable decision, the Secretary must, taking into consideration the recommendation, reconsider the decision.
(2) The Secretary must, within 21 days after receiving the recommendation:
(a) confirm the examinable decision; or
(b) vary the examinable decision; or
(c) set aside the examinable decision and substitute a new decision.
Note A decision to do any of the things mentioned in subsection (2) is not an examinable decision, see subsection 16A.24 (1A).
(3) The Secretary must tell the aggrieved person, the relevant provider and the Aged Care Commissioner in writing about the Secretary’s decision on reconsideration.
Division 6.2 Examination by Aged Care Commissioner of certain complaints
16A.26 Complaints to Aged Care Commissioner
(1) A person may make a written complaint to the Aged Care Commissioner about:
(a) the Secretary’s processes for handling matters under the Investigation Principles 2007; or
(b) the conduct of accreditation bodies in relation to their responsibilities under the Accreditation Grant Principles 1999 or the Accreditation Grant Principles 2011; or
(c) the conduct of persons carrying out audits or support contacts under the Accreditation Grant Principles 1999; or
(d) the conduct of persons carrying out audits or assessment contacts under the Accreditation Grant Principles 2011.
(2) For subsection (1), a complaint may be made only about a matter that occurred on or after 1 May 2007.
16A.27 Aged Care Commissioner’s discretion to examine complaints
(1) The Aged Care Commissioner may examine, or refuse to examine, a complaint mentioned in section 16A.26.
(2) The Aged Care Commissioner must refuse to examine a complaint if he or she is satisfied that the complaint does not relate to a function of the Commissioner.
(3) The Aged Care Commissioner may refuse to examine a complaint if the Commissioner is satisfied that:
(a) the complaint is frivolous or vexatious; or
(b) the complaint was not made in good faith; or
(c) the complaint relates to a matter that is, or has been, the subject of a legal proceeding; or
(d) having regard to all the circumstances, examination of the complaint is not warranted.
(4) The Aged Care Commissioner may examine a complaint in the manner that the Commissioner considers appropriate.
16A.28 Notice of examination
(1) As soon as possible after the Aged Care Commissioner decides to examine a complaint mentioned in section 16A.26, he or she must give the person or body, against whom the complaint is made, information about the nature and substance of the complaint.
(2) The information mentioned in subsection (1) must be given in writing.
Part 7 Transitional
16A.29 Transitional
(1) This section applies to each person who has made a complaint under the Committee Principles 1997 in which:
(a) the complaint has not been determined or discontinued; or
(b) if the person has applied for a review of the determination resolving the complaint — the review has not been finalised.
(2) As soon as possible after the Investigation Principles 2007 commence, the Secretary must tell the person in writing that if the person does not elect within 30 days to have the complaint or review dealt with under the Committee Principles 1997 as in force immediately before the Investigation Principles 2007 commenced, the complaint or review will be taken to be a complaint or examination under the Investigation Principles 2007.
(3) The complaint or review of a person who makes an election under subsection (2) is to be dealt with under the Committee Principles 1997 as in force immediately before the Investigation Principles 2007 commenced until the earlier of:
(a) the resolution of the complaint or review; or
(b) 1 September 2007.
(4) A complaint or review that has not been resolved before 1 September 2007 is to be dealt with under the Investigation Principles 2007.
Notes to the Investigation Principles 2007
Note 1
The Investigation Principles 2007 (in force under subsection 96-1 (1) of the Aged Care Act 1997) as shown in this compilation is amended as indicated in the Tables below.
Table of Instruments
| Title | Date of FRLI registration | Date of | Application, saving or |
| Investigation Principles 2007 | 1 May 2007 (see F2007L01117) | 1 May 2007 | |
| Investigation Amendment Principles 2007 (No. 1) | 14 Sept 2007 (see F2007L03718) | 15 Sept 2007 | — |
| Investigation Amendment Principles 2008 (No. 1) | 19 Dec 2008 (see F2008L04694) | 1 Jan 2009 (see s. 2) | — |
| Investigation Amendment Principles 2011 (No. 1) | 19 May 2011 (see F2011L00819) | 20 May 2011 (see s. 2) | — |
Table of Amendments
| ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted | |
| Provision affected | How affected |
| Part 3 | |
| Division 3.1 | |
| S. 16A.9................................. | am. No. 1, 2007 |
| Part 6 | |
| Note to Part 6........................ | am. No. 1, 2011 |
| Division 6.1 | |
| S. 16A.21............................... | am. No. 1, 2008 |
| S. 16A.23............................... | am. No. 1, 2008 |
| S. 16A.24............................... | am. No. 1, 2008 |
| S. 16A.25............................... | am. No. 1, 2008 |
| Note to s. 16A.25 (2)........... | ad. No. 1, 2008 |
| Division 6.2 | |
| S. 16A.26............................... | am. No. 1, 2011 |
| S. 16A.27............................... | am. No. 1, 2008 |
| S. 16A.28............................... | rs. No. 1, 2008 |
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