On 16 September 2018 the Prime Minister, Scott Morrison, announced that he will ask the Governor General to establish a Royal Commission to examine the quality of care in residential and home care services provided to senior Australians and also younger persons with disabilities who are living in residential aged care.
The Terms of Reference are yet to be determined. According to the Department of Health, the Terms of Reference are anticipated to include:
- The quality of care provided to older Australians, and the extent of substandard care;
- The challenge of providing care to Australians with disabilities living in residential aged care, particularly younger people with disabilities;
- The challenge of supporting the increasing number of Australians suffering dementia and addressing their care needs as they age;
- The future challenges and opportunities for delivering aged care services in the context of changing demographics, including in remote, rural and regional Australia;
- And other matters that the Royal Commission considers necessary.
Consultation regarding the Terms of Reference closes on 25 September 2018.
Aged care providers should be aware of the extent of the powers of Royal Commissions and seek advice if contacted by the Royal Commission. The following is an overview of the powers available to a Royal Commission and the protections that may be afforded to those required to attend and / or produce a document, statement or thing.
Royal Commissions are established and conducted under the Royal Commissions Act 1902 (Cth) (the Act). Royal Commissions are established to ascertain factual circumstances and make recommendations in the public interest.
The powers of a Royal Commission are coercive. A Royal Commission may issue summonses requiring persons to appear at a hearing at a given time, date and place to give evidence and / or to produce documents. A person summonsed to give evidence may be required to give evidence on oath or take an affirmation.
A Royal Commission may also issue written notice to a person requiring the person to produce a document or thing specified in the notice and / or may issue a notice requiring the person to give information or a statement in writing to a person by a specified time in a specified manner or a specified place.
If a person who has been served with a summons to give evidence and / or produce documents, or a written notice to produce a document or thing or to provide information or a statement, fails to do so as directed in the summons or notice (unless excused or released from doing so by a member of the Commission) or with reasonable excuse, that person commits an offence and the penalty is imprisonment for two years.
Persons who are compelled to give evidence, produce documents, provide a written statement or produce information are afforded protections under the Act. For example, a person who is compelled to give evidence cannot have the evidence used against them in future civil and / or criminal proceedings. If a person voluntarily provides a submission, gives evidence or provides a statement, or produces a document or thing, the information may be used against them in future civil or criminal proceedings.
If an employee of an aged care provider gives evidence and / or produces a document or thing, or gives information or a statement pursuant to a summons, requirement or notice from a Royal Commission, the employer may not dismiss that employee by virtue of the fact he or she complied with a notice or summons issued by a Royal Commission. If an employer does so, there are penalties that apply under the Act.
The voluntary production of a privileged or confidential information to a Royal Commission may constitute a waiver of legal professional privilege or confidentiality. If a document is produced in answer to a notice or summons these protections will not be waived.
Aged care providers and their employees should seek advice before making a decision to voluntarily provide any information to a Royal Commission to ensure that available protections are not waived.
Disclaimer: This information is current as of September 2018. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.