Ley de 1973 sobre el seguro de enfermedad de Australia, Australia

Division 1—Powers and functions of Chief Executive Officer

5 Functions of Chief Executive Officer

(1)

The Chief Executive Officer has the following functions:

(a)

the medicare functions mentioned in section 6;

(b)

the service delivery functions mentioned in section 7;

(c)

any functions conferred on the Chief Executive Officer under any other Act;

(d)

any functions that the Minister, by writing, directs the Chief Executive Officer to perform;

(e)

any functions that are prescribed by the regulations;

(f)

to do anything incidental to or conducive to the performance of any of the above functions.

(2)

A direction made under paragraph (1)(d) is a legislative instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the direction.

6 Chief Executive Officer’s medicare functions

The Chief Executive Officer’s medicare functions are the functions conferred on the Chief Executive Officer by or under the Health Insurance Act 1973.

7 Chief Executive Officer’s service delivery functions

(1)

The Chief Executive Officer’s service delivery functions are to provide Commonwealth services in accordance with service arrangements, and to do anything included in the arrangements that is incidental, conducive or related to the provision of the services.

(2)

The Chief Executive Officer may, with the written approval of the Minister, enter into an arrangement (a service arrangement) with the principal officer of a Commonwealth authority for the provision of the Commonwealth services specified in the

Section 7A

arrangement, subject to the conditions specified in the arrangement.

(3)

Service arrangements for the provision of Commonwealth services may include arrangements for doing anything incidental, conducive or related to the provision of the services.

(4)

Without limiting subsection (2) or (3), arrangements for the provision of Commonwealth services may include arrangements for:

(a)

making the Chief Executive Officer or specified employees, or employees in specified classes of employees, available to exercise powers or perform functions in connection with the provision of the services (including powers and functions delegated to the Chief Executive Officer or employees under other laws); or

(b)

determining a person’s eligibility for, or entitlement to receive or have access to, the services; or

(c)

maintaining records related to the provision of the services; or

(d)

providing Commonwealth authorities and other persons with information related to the provision of the services; or

(e)

undertaking education, compliance, investigation and enforcement activities related to the provision of the services; or

(f)

recovering overpayments and other amounts due to the Commonwealth in connection with the provision of the services; or

(g)

conducting litigation or proceedings related to the provision of the services.

(5)

Arrangements for the provision of Commonwealth services may also include agreements covered by section 7A.

(6)

An approval given by the Minister under this section is not a legislative instrument.

7A Agreements about exercise and performance of Chief Executive Officer’s powers and functions

The Chief Executive Officer may enter into a written agreement with a Minister or the principal officer of a Commonwealth Section 8

authority about the exercise or performance of the Chief Executive Officer’s powers or functions.

8 Ministerial directions about exercise and performance of Chief Executive Officer’s powers and functions

(1)

The Minister may, by writing, give directions to the Chief Executive Officer about the exercise or performance of the Chief Executive Officer’s powers or functions.

(2)

Without limiting subsection (1), directions under this section may include directions about the following:

(a)

the objectives, strategies, policies or priorities of the Chief Executive Officer or Medicare Australia;

(b)

the manner in which the Chief Executive Officer exercises or performs his or her powers or functions;

(c)

the manner in which Medicare Australia performs its function.

(3)

The Minister must not give a direction under this section about the exercise or performance of powers or functions in relation to a particular individual or company.

Note: See also section 19 of the Public Service Act 1999 which provides that an Agency Head is not subject to direction by any Minister in relation to the exercise of powers by the Agency Head under Division 1 or 2 of Part 4 of that Act in relation to particular individuals.

(4)

Particulars of any directions given by the Minister under this section in a financial year must be included in the Chief Executive Officer’s annual report for that year.

(5)

The Chief Executive Officer must ensure that a direction given under this section is complied with.

(6)

A direction given under this section is not a legislative instrument.

8AA Minister may request information

(1) The Minister may, by writing, request the Chief Executive Officer to give the Minister information about:

(a)

the exercise or performance of the Chief Executive Officer’s powers or functions; or

(b)

the operation of Medicare Australia.

Section 8AB

(2)

The Chief Executive Officer must, within a reasonable time, comply with a request under this section.

(3)

A request made under this section is not a legislative instrument.

8AB Management of Medicare Australia

The Chief Executive Officer is, under the Minister, responsible for:

(a)

deciding the objectives, strategies, policies and priorities of Medicare Australia; and

(b)

managing Medicare Australia; and

(c)

ensuring that Medicare Australia performs its function in a proper, efficient and effective manner.

8AC Delegation

(1)

The Chief Executive Officer may, by writing, delegate to an employee all or any of the powers or functions of the Chief Executive Officer under this Act or any other Act.

(2)

However, the Chief Executive Officer must not delegate powers or functions conferred on him or her under another Act if the delegation is inconsistent with the express provisions of that Act.

(3)

The Chief Executive Officer may, by writing, delegate to an employee all or any of the powers or functions delegated to the Chief Executive Officer under another Act.

(4)

However, the Chief Executive Officer must not delegate powers or functions delegated to him or her under another Act if the delegation by the Chief Executive Officer would be inconsistent with the express provisions of that Act.

8AD Commonwealth consent to conferral of powers etc. on Chief Executive Officer by State and Territory laws

(1) A law of a State or Territory may confer powers or functions, or impose duties, on the Chief Executive Officer.

Note: Section 8AF sets out when such a law imposes a duty on the Chief Executive Officer.

Section 8AE

(2)

Subsection (1) does not authorise the conferral of a power or function, or the imposition of a duty, by a law of a State or Territory to the extent to which:

(a)

the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Chief Executive Officer; or

(b)

the authorisation would otherwise exceed the legislative power of the Commonwealth.

(3)

The Chief Executive Officer cannot exercise a power, or perform a duty or function, under a law of a State or Territory without the written approval of the Minister.

8AE How duty is imposed on Chief Executive Officer by State and Territory laws

Application

(1) This section applies if a law of a State or Territory purports to impose a duty on the Chief Executive Officer.

Note: Section 8AF sets out when such a law imposes a duty on the Chief Executive Officer.

State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

(a)

imposing the duty is within the legislative powers of the State or Territory concerned; and

(b)

imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Chief Executive Officer.

Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 8AD to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), Section 8AF

the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

(4)

If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

(5)

The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

(a)

is within the legislative powers of the Commonwealth; and

(b)

is consistent with the constitutional doctrines restricting the duties that may be imposed on the Chief Executive Officer.

(6)

Subsections (1) to (5) do not limit section 8AD.

8AF When State and Territory laws impose a duty on Chief Executive Officer

For the purposes of sections 8AD and 8AE, a law of a State or Territory imposes a duty on the Chief Executive Officer if:

(a)

the law confers a power or function on the Chief Executive Officer; and

(b)

the circumstances in which the power or function is conferred give rise to an obligation on the Chief Executive Officer to exercise the power or to perform the function.

Section 8AG

Division 2—Appointment etc. of Chief Executive Officer

8AG Appointment

(1)

There is to be a Chief Executive Officer of Medicare Australia.

(2)

The Chief Executive Officer is to be appointed in writing by the Minister.

(3)

The Chief Executive Officer holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(4)

The Chief Executive Officer is to be appointed on a full-time basis.

8AH Remuneration

(1)

The Chief Executive Officer is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Chief Executive Officer is to be paid the remuneration that is prescribed.

(2)

The Chief Executive Officer is to be paid the allowances that are prescribed.

(3)

This section has effect subject to the Remuneration Tribunal Act 1973.

8AI Leave of absence

(1)

The Chief Executive Officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2)

The Minister may grant the Chief Executive Officer leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

8AJ Other terms and conditions

The Chief Executive Officer holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister in writing.

Section 8AK

8AK Termination of appointment

(1)

The Minister may terminate the appointment of the Chief Executive Officer for misbehaviour or physical or mental incapacity.

(2)

The Minister may terminate the appointment of the Chief Executive Officer if:

(a)

the Chief Executive Officer:

(i)

becomes bankrupt; or

(ii)

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b)

the Chief Executive Officer is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c)

the Chief Executive Officer engages, except with the Minister’s approval, in paid employment outside the duties of his or her office.

(3)

The Minister must terminate the appointment of the Chief Executive Officer if, in the Minister’s opinion, the performance of the Chief Executive Officer has been unsatisfactory for a significant period of time.

8AL Acting Chief Executive Officer

(1)

The Minister may appoint a person to act as the Chief Executive Officer:

(a)

during a vacancy in the office of Chief Executive Officer, whether or not an appointment has previously been made to the office; or

(b)

during any period, or during all periods, when the Chief Executive Officer is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office.

(2)

Anything done by or in relation to a person purporting to act under an appointment under this section is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

Section 8AM

(b)

there was a defect or irregularity in connection with the appointment; or

(c)

the appointment had stopped having effect; or

(d)

the occasion for the person to act had not arisen or had stopped.

8AM Resignation

The Chief Executive Officer may resign by giving the Minister a written resignation.

Section 8K

Division 1—Preliminary

8K Crown to be bound

(1)

This Part binds the Crown in all its capacities.

(2)

Nothing in this Part renders the Crown in any of its capacities liable to be prosecuted.

8L Authorisation to exercise powers under this Part

(1)

The Chief Executive Officer may, by instrument in writing, authorise the powers under this Part to be exercised in connection with an investigation that the Chief Executive Officer is conducting in the performance of his or her functions.

(2)

Powers under this Part must not be exercised unless they are exercised in connection with an investigation for which such an authorisation is in force.

8M Authorised officers

The Chief Executive Officer may, by signed instrument, appoint an employee to be an authorised officer for the purposes of exercising:

(a)

the powers of an authorised officer under this Act; or

(b)

such of those powers as are specified in the instrument.

8N Identity cards

(1)

The Chief Executive Officer may cause to be issued to each authorised officer an identity card.

(2)

An identity card must:

(a)

be in a form approved in writing by the Chief Executive Officer; and

(b)

incorporate a recent photograph of the authorised officer.

Section 8N

(3)

A person who ceases to be an authorised officer must, as soon as practicable after so ceasing, return his or her identity card to the Chief Executive Officer.

(4)

A person must not fail to return his or her identity card as required by subsection (3).

Penalty: 1 penalty unit.

Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is only a maximum penalty for the offence.

(5)

Subsection (4) does not apply if the person has a reasonable excuse.

(6)

An offence under subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Section 8P

Division 2—General power to obtain information

8P Chief Executive Officer may obtain information etc.

(1)

An authorised officer may require a person to give information or produce a document that is in the person’s custody, or under the person’s control, to the Chief Executive Officer if the authorised officer has reasonable grounds for believing that:

(a)

a relevant offence or relevant civil contravention has been or is being committed; and

(b)

the information or document is relevant to the offence or contravention.

(2)

The requirement must be by notice in writing given to the person.

Note: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an individual by:

• delivering it personally; or
• leaving it at the person’s last known address; or
• sending it by pre-paid post to the person’s last known address.

(3)

Subject to subsection (4), the power under this section to require information to be given or documents to be produced does not include:

(a)

the power to require information to be given about the contents of a part of a record that is a part containing clinical details relating to a patient; or

(b)

the power to require production of a part of a record that contains such clinical details.

(4)

Subsection (3) does not apply if:

(a)

the person being required to give information or produce documents is the patient to whom the clinical details relate; and

(b)

the information or documents relate to:

(i)

a service the person has received in respect of which medicare benefit or dental benefit has been claimed; or

(ii)

a pharmaceutical benefit supplied to, or in respect of, the person.

Section 8Q

8Q Content of notices

(1)

The notice must specify:

(a)

how the person is to give the information or how the document is to be produced; and

(b)

the period within which the person is to give the information, or to produce the document, to the Chief Executive Officer; and

(c)

the employee (if any) to whom the information is to be given or the document is to be produced; and

(d)

that the notice is given under section 8P.

(2)

The period specified under paragraph (1)(b) must end at least 14 days after the notice is given.

(3)

The notice may require the person to give the information by appearing before a specified employee to answer questions.

(4)

If the notice requires the person to appear before an employee, the notice must specify a time and a place for the person to appear. The time must be at least 14 days after the notice is given.

8R Offences

(1) A person must not refuse or fail to comply with a notice under section 8P.

Penalty: Imprisonment for 6 months.

(1A) However, the person is only required to comply with the notice to the extent that the person is capable of doing so.

Note: The defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code.

(1B) Subsection (1) does not apply if the person has a reasonable excuse.

Note: The defendant bears an evidential burden in relation to the matter in subsection (1B). See subsection 13.3(3) of the Criminal Code.

(2) An offence under subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) Without limiting what may be taken to be a reasonable excuse for the purposes of subsection (1B), it is, for the purposes of that Section 8S

subsection, a reasonable excuse for refusing or failing to comply with the notice if compliance would have the effect of disclosing the contents of a part of a record that is a part containing clinical details relating to a patient.

8S Self-incrimination

(1)

A person is not excused from giving information or producing a document pursuant to a notice under section 8P on the ground that the information, or production of the document, may tend to incriminate the person.

(2)

In any criminal proceeding:

(a)

evidence of any information given or document produced pursuant to a notice under section 8P; and

(b)

evidence of any information, document or thing obtained as a direct or indirect result of the person having given the information or produced the document;

cannot be used against the person. However, this subsection does not apply to a proceeding for an offence against section 8R or an offence against section 137.1 or 137.2 of the Criminal Code that relates to a notice under section 8P of this Act.

8T Exemption

This Division does not require a person to give information or produce a document to the extent that, in doing so, the person would contravene a law of the Commonwealth (other than a law of a Territory).

Investigative powers of Chief Executive Officer Part IID Searches in relation to possible relevant offences and relevant civil contraventions

Division 3

Section 8U

Division 3—Searches in relation to possible relevant offences and relevant civil contraventions

8U Authorised officers may conduct searches for the purpose of monitoring compliance

(1) Subject to this Division, if an authorised officer has reasonable grounds for believing that a relevant offence or relevant civil contravention is being committed, or has been committed within the previous 60 days, he or she may:

(a)

with the consent of the occupier, enter, at any reasonable time of the day or night, any premises that the authorised officer has reasonable grounds to believe are premises to which this section applies; and

(b)

exercise his or her powers under section 8V; to the extent that it is reasonably necessary for the purpose of

ascertaining whether the relevant offence or relevant civil contravention has been or is being committed.

(2)

If the occupier does not consent to entry under subsection (1), an authorised officer must not enter the premises without a search warrant.

(3)

The authorised officer must not under subsection (1) enter premises that are a residence unless the occupier of the premises has consented to the entry.

(4)

In deciding the extent to which it is reasonably necessary to enter premises under subsection (1), an authorised officer must consider whether it is practicable to ascertain whether the relevant offence or relevant civil contravention in question has been or is being committed by:

(a)

the authorised officer entering the premises with the occupier’s consent; or

(b)

the occupier giving information without the authorised officer entering the premises.

(5)

This section applies to premises at which activities have been or are being carried out that are associated with:

Part IID Investigative powers of Chief Executive Officer Division 3 Searches in relation to possible relevant offences and relevant civil contraventions

Section 8V

(a)

rendering services in respect of which medicare benefits or dental benefits have been paid or may be payable; or

(b)

the prescription for the supply of, or the supply of, pharmaceutical benefits.

(6) In exercising any power under this section an authorised officer must, as soon as practicable, give the occupier of the premises a copy of the relevant instrument made by the Chief Executive Officer under subsection 8L(1).

8V Powers on entering premises

(1)

Subject to subsection (4), having entered the premises, the authorised officer may, for the purpose of ascertaining whether the relevant offence or relevant civil contravention is being committed, or has been committed within the previous 60 days, exercise any one or more of the following powers:

(a)

to search the premises;

(b)

to take photographs (including video recordings) or make sketches of the premises or any thing on the premises (other than a document);

(c)

to inspect, examine and take samples of any thing on or in the premises that is a drug, medicine or substance that may be supplied as, or may be an ingredient of, a pharmaceutical benefit;

(d)

to take extracts from any document, book, or record on the premises;

(e)

to take on to the premises any equipment or material reasonably necessary for the purposes of exercising a power under paragraph (a), (b), (c) or (d);

(f)

in relation to certain documents or records on the premises, to exercise any one or more of the powers under subsections (2) and (3).

(2)

The authorised officer has power, under paragraph (1)(f), to operate equipment at the premises to see whether:

(a)

the equipment; or

(b)

a disk, tape or other storage device that:

(i)

is at the premises; and

(ii)

can be used with or is associated with the equipment;

Investigative powers of Chief Executive Officer Part IID Searches in relation to possible relevant offences and relevant civil contraventions

Division 3

Section 8W

contains information that is relevant to determining whether the relevant offence or relevant civil contravention has been or is being committed.

(3) If the authorised officer, after operating equipment at the premises, finds that the equipment, or that a disk, tape or other storage device at the premises, contains information of that kind, he or she has power, under paragraph (1)(f):

(a)

to operate the facilities to put the information in documentary form and copy the documents so produced; or

(b)

if the information can be transferred to a disk, tape or other storage device that:

(i)

is brought to the premises; or

(ii)

is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

to operate the equipment or other facilities to copy the information to the storage device and remove the storage device from the premises.

(4) The powers under this section do not authorise any act in relation to a part of a record that is a part containing clinical details relating to a patient.

8W Authorised officers to produce evidence of identity

(1)

The authorised officer is not entitled to exercise any powers under this Division in relation to particular premises unless the authorised officer produces his or her identity card for inspection by the occupier of the premises.

(2)

This section does not apply if the occupier is not present at the premises at any time during which the powers are exercised.

Section 8X

Division 4—Warrants for searches and seizures

8X Relevant offence and relevant civil contravention related searches and seizures

(1)

Subject to this Division, if an authorised officer has reasonable grounds for suspecting that there may be on or in any premises evidential material, the authorised officer and an officer assisting may:

(a)

enter the premises; and

(b)

search the premises for the evidential material; and

(c)

if the authorised officer or officer assisting finds the evidential material on or in the premises—seize it.

(2)

The authorised officer or officer assisting must not enter the premises unless:

(a)

the occupier of the premises has consented to the entry; or

(b)

the entry is made under a warrant issued under section 8Y.

8Y Search warrants

(1) If:

(a)

an information on oath is laid before a magistrate alleging that an authorised officer suspects on reasonable grounds that there may be on or in any premises particular evidential material; and

(b)

the information sets out those grounds;

the magistrate may issue a search warrant in respect of the premises.

(2) The magistrate must not issue the warrant unless he or she has been:

(a)

advised what other warrants (if any) have been sought under this Part in respect of those premises in the preceding 5 years; and

(b)

given a copy of the relevant instrument made by the Chief Executive Officer under subsection 8L(1).

Section 8Z

(3)

The warrant must authorise an authorised officer named in the warrant with such assistance, and by such force, as is necessary and reasonable:

(a)

to enter the premises; and

(b)

to search the premises for the evidential material; and

(c)

if the authorised officer finds the evidential material on or in the premises—to seize it.

(4)

The magistrate is not to issue the warrant unless:

(a)

the informant or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought; and

(b)

the magistrate is satisfied that there are reasonable grounds for issuing the warrant; and

(c)

the magistrate is satisfied that execution of the warrant will not cause an unreasonable invasion of any patient’s privacy.

(5)

There must be stated in the warrant:

(a)

the purpose for which the warrant is issued, and the nature of the relevant offence or relevant civil contravention in relation to which the entry and search are authorised; and

(b)

whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and

(c)

a description of the kind of evidential material to be seized; and

(d)

a day, not later than 7 days after the day of issue of the warrant, upon which the warrant ceases to have effect; and

(e)

whether or not the warrant authorises the exercise of powers in relation to records containing clinical details relating to patients.

8Z Warrants may be issued by telephone or other electronic means

(1) If, because of circumstances of urgency, an authorised officer thinks it necessary to do so, the authorised officer may apply to a magistrate for a warrant under subsection 8Y(1) by telephone, telex, fax or other electronic means under this section.

Section 8ZA

(2)

Before applying, the authorised officer must prepare an information of a kind referred to in subsection 8Y(1) that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the information has been sworn.

(3)

If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:

(a)

a warrant in the terms of the application should be issued urgently; or

(b)

the delay that would occur if an application were made in

person would frustrate the effective execution of the warrant; the magistrate may complete and sign the same form of warrant that would be issued under section 8Y.

8ZA Formalities relating to warrants issued by telephone or other electronic means

(1)

If the magistrate signs a warrant under section 8Z, the magistrate must:

(a)

inform the authorised officer of the terms of the warrant; and

(b)

inform the authorised officer of the day on which and the time at which the warrant was signed; and

(c)

inform the authorised officer of the day not more than 48 hours after the magistrate completes and signs the warrant on which the warrant ceases to have effect; and

(d)

record on the warrant the reasons for issuing the warrant.

(2)

The authorised officer must:

(a)

complete a form of warrant in the same terms as the warrant completed and signed by the magistrate; and

(b)

write on it the magistrate’s name and the day on which and the time at which the warrant was signed.

(3)

The authorised officer must, not later than the day after the date of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:

(a)

the form of warrant completed by the authorised officer; and

(b)

the information duly sworn in connection with the warrant.

Section 8ZA

(4)

On receiving the documents referred to in subsection (3), the magistrate must:

(a)

attach to them the warrant signed by the magistrate; and

(b)

deal with the documents in the way in which the magistrate would have dealt with the information if the application for the warrant had been made under section 8Y.

(5)

A form of warrant duly completed by an authorised officer under subsection (2), if it is in accordance with the terms of the warrant signed by the magistrate, is authority for any entry, search, seizure or other exercise of a power that the warrant so signed authorises.

(6)

If:

(a)

it is material in any proceedings for a court to be satisfied that an entry, search, seizure or other exercise of power was authorised in accordance with this section; and

(b)

the warrant signed by a magistrate under this section authorising the entry, search, seizure or other exercise of power is not produced in evidence;

the court is to assume, unless the contrary is proved, that the entry, search, seizure or other exercise of power was not authorised by such a warrant.

Section 8ZB

Division 5—Provisions relating to execution of search warrants

8ZB Announcement before entry

(1)

The authorised officer or an officer assisting must, before any person enters warrant premises under a warrant:

(a)

announce that he or she is authorised by the warrant to enter the premises; and

(b)

give any person at the premises an opportunity to allow entry to the premises.

(2)

The authorised officer or an officer assisting is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

(a)

the safety of a person (including the authorised officer or the officer assisting); or

(b)

that the effective execution of the warrant is not frustrated.

8ZC Availability of assistance and use of force in executing a warrant

In executing a warrant:

(a)

the authorised officer may obtain such assistance; and

(b)

an officer assisting who is a constable may use such force against persons and things; and

(c)

the authorised officer and an officer assisting who is not a

constable may use such force against things; as is necessary and reasonable in the circumstances.

8ZD Details of warrant to be given to occupier etc.

(1)

If a warrant is being executed and the occupier of the warrant premises, or another person who apparently represents the occupier, is present at the premises, the authorised officer or an officer assisting must make available to that person a copy of the warrant.

(2)

The authorised officer must identify himself or herself to the person at the premises.

Section 8ZE

(3)

The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued it or the seal of the relevant court.

8ZE Specific powers available to officers executing warrants

(1) In executing a warrant, the authorised officer or an officer assisting may:

(a)

for a purpose incidental to execution of the warrant; or

(b)

if the occupier of the warrant premises consents in writing;

take photographs (including video recordings) of the premises or of things at the premises.

(2)

If a warrant is being executed, the authorised officer and the officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the warrant premises:

(a)

for not more than one hour; or

(b)

for a longer period if the occupier of the premises consents in writing.

(3)

If:

(a)

the execution of a warrant is stopped by an order of a court; and

(b)

the order is later revoked or reversed on appeal; and

(c)

the warrant is still in force; the execution of the warrant may be completed.

8ZF Use of equipment to examine or process things

(1)

The authorised officer or an officer assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under the warrant.

(2)

If:

(a)

it is not practicable to examine or process the things at the warrant premises; or

(b)

the occupier of the premises consents in writing;

Section 8ZG

the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.

(3)

If things are moved to another place for the purpose of examination or processing under subsection (2), the authorised officer must, if it is practicable to do so:

(a)

inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

(b)

allow the occupier or his or her representative to be present during the examination or processing.

(4)

The authorised officer or an officer assisting may operate equipment already at the warrant premises in order to determine whether they are things that may be seized under the warrant if the authorised officer or officer assisting believes on reasonable grounds that:

(a)

the equipment is suitable for the examination or processing; and

(b)

the examination or processing can be carried out without damage to the equipment or thing.

8ZG Use of electronic equipment at premises

(1)

The authorised officer or an officer assisting may operate electronic equipment at the warrant premises to see whether evidential material is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.

(2)

If the authorised officer or an officer assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

(a)

seize the equipment and any disk, tape or other associated device; or

(b)

if the material can, by using facilities at the premises, be put in a documentary form—operate the facilities to put the material in that form and seize the documents so produced; or

(c)

if the material can be transferred to a disk, tape or other storage device that:

(i) is brought to the premises; or Section 8ZG

(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.

(3)

Equipment may be seized under paragraph (2)(a) only if it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c).

(4)

If the authorised officer or an officer assisting believes on reasonable grounds that:

(a)

evidential material may be accessible by operating electronic equipment at the warrant premises; and

(b)

expert assistance is required to operate the equipment; and

(c)

if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

(5)

The authorised officer or an officer assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

(6)

The equipment may be secured:

(a)

for a period not exceeding 24 hours; or

(b)

until the equipment has been operated by the expert; whichever happens first.

(7)

If the authorised officer or an officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the magistrate who issued the warrant for an extension of that period.

(8)

The authorised officer or an officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

Section 8ZH

(9) Division 4 applies, with such modifications as are necessary, to issuing an extension.

8ZH Compensation for damage to electronic equipment

(1) If:

(a)

damage is caused to equipment as a result of it being operated as mentioned in section 8ZF or 8ZG; and

(b)

the damage was caused as a result of:

(i)

insufficient care being exercised in selecting the person who was to operate the equipment; or

(ii)

insufficient care being exercised by the person operating

the equipment; compensation for the damage is payable to the owner of the equipment.

(2)

Compensation is payable out of money appropriated by the Parliament for the purpose.

(3)

In determining the amount of compensation payable, regard is to be had to whether the occupier of the warrant premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

8ZI Seizure of things not covered by warrants

If:

(a)

in the course of searching, in accordance with a warrant, for particular evidential material, an authorised officer or an officer assisting finds evidential material that the authorised officer or officer assisting believes on reasonable grounds to be:

(i)

evidential material in relation to the relevant offence or relevant civil contravention to which the warrant relates, although not the evidential material specified in the warrant; or

(ii)

evidential material in relation to another relevant offence or relevant civil contravention; and

(b)

the authorised officer or officer assisting believes, on reasonable grounds, that it is necessary to seize that

Section 8ZJ

evidential material in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the relevant offence or relevant civil contravention or the other relevant offence or relevant civil contravention;

the warrant is taken to authorise the authorised officer or officer assisting to seize that evidential material.

8ZJ Occupier entitled to observe search

(1)

If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is entitled to observe the search being conducted.

(2)

The right to observe the search being conducted ceases if the person impedes the search.

(3)

This section does not prevent 2 or more areas of the premises being searched at the same time.

8ZK Receipts for things seized under warrant

(1)

If a thing is seized under a warrant or moved under subsection 8ZF(2), the authorised officer or an officer assisting must provide a receipt for the thing.

(2)

If 2 or more things are seized or moved, they may be covered in the one receipt.

8ZL Copies of seized things to be provided

(1) Subject to subsection (2), if an authorised officer or an officer assisting seizes, under Division 4 or this Division:

(a)

a document, film, computer file or other thing that can be readily copied; or

(b)

a storage device the information in which can be readily

copied; the authorised officer or officer assisting must, if requested to do so by the occupier of the warrant premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.

Section 8ZM

(2) Subsection (1) does not apply if the thing that has been seized was seized under paragraph 8ZG(2)(b) or (c).

8ZM Retention of things seized

(1) Subject to any contrary order of a court, if an authorised officer or an officer assisting seizes evidential material under Division 4 or this Division, the authorised officer, officer assisting or the Chief Executive Officer must return it if:

(a)

the reason for its seizure no longer exists; or

(b)

a decision is made not to use it in evidence.

(1A) Subsection (1) does not apply if the evidential material is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

(2) The Chief Executive Officer may, by written instrument, authorise evidential material seized under this Division to be released to the owner, or to the person from whom it was seized, either unconditionally or on such conditions as the Chief Executive Officer thinks fit.

Section 8ZN

Division 6—Miscellaneous

8ZN Patients to be advised of search, seizure etc. of clinical records

(1)

If powers under this Part are exercised in relation to a record containing clinical details relating to an individual patient, the Chief Executive Officer must advise the patient in writing what was done under this Part in relation to the record.

(2)

Subsection (1) does not apply if:

(a)

so advising the patient would prejudice the investigation in connection with which the powers were exercised; or

(b)

the Chief Executive Officer is unable, after making reasonable inquiries, to locate the patient.

8ZO Offence for making false statements in warrants

A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.

Penalty: Imprisonment for 2 years.

Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is only a maximum penalty for the offence. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

8ZP Offences relating to telephone warrants

A person must not:

(a)

state in a document that purports to be a form of warrant under section 8Z the name of a magistrate unless that magistrate issued the warrant; or

(b)

state on a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the magistrate; or

(c)

purport to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:

(i) has not been approved by a magistrate under that section; or Section 8ZQ

(ii) to depart in a material particular from the terms authorised by a magistrate under that section; or

(d) send to a magistrate a form of warrant under that section that is not the form of warrant that the person purported to execute.

Penalty: Imprisonment for 2 years.

Note: Under subsection 4D(1) of the Crimes Act 1914, this penalty is only a maximum penalty for the offence. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

8ZQ Actions under this Part taken to be in performance of certain functions

(1)

For the purposes of this Act, anything done under this Part for a purpose related to the Health Insurance Act 1973, including investigation of whether benefits are payable under that Act and investigation of compliance with that Act, is taken to have been done in the performance of the Chief Executive Officer’s medicare functions.

(2)

For the purposes of this Act and the regulations, anything done under this Part for a purpose related to Part VII of the National Health Act 1953, including investigation of whether benefits are payable under that Part and investigation of compliance with that Part, is taken to have been done in the performance of the Chief Executive Officer’s functions relating to the provision of pharmaceutical benefits.

Notes to the Medicare Australia Act 1973 Note 1

The Medicare Australia Act 1973 as shown in this compilation comprises Act No. 41, 1974 amended as indicated in the Tables below.

The amendments made by Schedule 1 (items 48–50) of the Health Insurance Commission (Reform and Separation of Functions) Act 1997 (No. 159, 1997) have no effect. [see Table A, Schedule 1 (item 73)].

All relevant information pertaining to application, saving or transitional provisions prior to 11 November 1997 is not included in this compilation. For subsequent information see Table A.

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