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Contents (2012 - 74)
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Boarding Houses Act 2012 No 74
Current version for 7 July 2017 to date (accessed 23 September 2017 at 04:38)
Part 4 Division 3
Division 3 Compliance and enforcement
Subdivision 1 Enforcement officers
66   Appointment of enforcement officers
(cf YCS Act, s 25 (1))
(1)  The Secretary may appoint persons as enforcement officers for the purposes of this Part.
(2)  A person is eligible for appointment as an enforcement officer only if the person is a member of staff of the Department of Family and Community Services.
67   Identification card
(1)  The Secretary is to issue each enforcement officer with an identification card as an enforcement officer.
(2)  An identification card is to be in the approved form.
(3)  A person who has been issued with an identification card must return it to the Secretary on demand.
Maximum penalty: 10 penalty units.
(4)  An enforcement officer must produce his or her identification card for inspection on request when exercising the functions of an enforcement officer.
68   Obstruction of enforcement officer
(cf YCS Act, s 25 (6))
(1)  A person must not, without reasonable excuse:
(a)  hinder or obstruct an enforcement officer in the exercise of a function under this Part, or
(b)  fail to comply with any requirement made by an enforcement officer under this Part.
Maximum penalty:
(a)  in the case of a corporation—100 penalty units, and
(b)  in any other case—50 penalty units.
(2)  A person is not guilty of an offence against this section unless it is established that, if requested to do so at the material time, the enforcement officer produced for inspection the enforcement officer’s identification card issued under this Subdivision.
(3)  A person is not guilty of an offence of failing to comply with a requirement made by an enforcement officer under this Part unless the person was warned on that occasion that a failure to comply with the requirement may constitute an offence.
Subdivision 2 Investigation powers
69   Definition—person involved in management of authorised boarding house
In this Subdivision, a person involved in the management of an authorised boarding house means:
(a)  a person who is (or was formerly) an authorised operator of the boarding house, or
(b)  a person who is (or was formerly) an approved manager of the boarding house, or
(c)  a person who is (or was formerly) a staff member of an authorised operator or otherwise engaged to provide or assist in providing services at the boarding house, or
(d)  if the authorised operator (or former authorised operator) of the boarding house was a corporation or body politic—a person who is (or was formerly) involved in the control or management of the authorised operator (such as a director, chief executive officer or majority shareholder), or
(e)  a person who is (or was formerly) a partner, or a member of a management committee or other office holder of, an unincorporated body involved in the management or operation of the boarding house, or
(f)  a person who is, or was formerly, a trustee of a trust involved in the management or operation of the boarding house, or
(g)  any other person (or a person belonging to a class) prescribed by the regulations.
70   Power to require provision of documents
(1)  The Secretary may, by notice served on a person involved in the management of an authorised boarding house, require the person to provide to the Secretary such relevant documents as the Secretary specifies in the notice.
(2)  The following documents are relevant documents:
(a)  any record that a person is required to keep by or under this Part (including under the regulations for this Part),
(b)  such other documents as the Secretary reasonably requires for the purposes of the administration or enforcement of this Part.
(3)  A notice under this section must specify the manner in which the documents are required to be provided and a reasonable time by which the documents are required to be provided.
(4)  A notice under this section may only require a person to provide existing documents that are in the person’s possession or that are within the person’s power to obtain lawfully.
(5)  If any document required to be provided under this section is in electronic, mechanical or other form, the notice requires the document to be provided in written form, unless the notice otherwise provides.
(6)  If any document required to be provided under this section is not in the English language, the notice is taken to require a written translation of its content to be provided with the document, unless the notice otherwise provides.
(7)  The Secretary may take copies of any documents provided under this section.
(8)  If the Secretary has reason to believe that any documents provided under this section are evidence of an offence against this Part or the regulations for this Part, the Secretary may retain the documents until proceedings for the offence have been heard and determined.
71   Power to require answers to questions
(1)  The Secretary may, by notice served on a person involved in the management of an authorised boarding house, require the person to answer questions about any matters in respect of which information is required for the administration or enforcement of this Part.
(2)  The Secretary may, by notice, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.
(3)  Answers given by a person nominated by the corporation are taken to have been given by the corporation.
(4)  The Secretary may, by notice, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(5)  The place and time at which a person may be required to attend to answer questions under this section is to be:
(a)  a place or time nominated by the person, or
(b)  if the place or time nominated is not reasonable in the circumstances or a place or time is not nominated by the person, a place and time nominated by the Secretary that is reasonable in the circumstances.
(6)  In this section, a reference to a corporation includes a reference to a body politic.
72   Functions may be exercised outside this State
(1)  A notice may be given under this Subdivision to a person involved in the management of an authorised boarding house even though the person is outside the State, as long as the activities concerned are or were carried out in this State.
(2)  The Secretary, or a delegate of the Secretary, may attend at a place outside this State for the purpose of obtaining answers to questions asked of a person under this Subdivision.
73   Failure to comply with requirement to provide documents or information or answer questions
A person who, without reasonable excuse, fails to comply with a requirement made of the person under this Subdivision is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—40 penalty units and in addition, for a continuing offence, 10 penalty units for each day the offence continues, and
(b)  in any other case—20 penalty units and in addition, for a continuing offence, 5 penalty units for each day the offence continues.
74   Provisions relating to requirements to provide documents or information or answer questions
(1) Warning to be given on each occasion A person is not guilty of an offence of failing to comply with a requirement under this Subdivision to provide documents or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse A person is not excused from a requirement under this Subdivision to provide documents or information or to answer a question on the ground that the document, information or answer might incriminate the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made However, any information provided or answer given by a natural person in compliance with a requirement under this Subdivision is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence against this Subdivision or section 95) if:
(a)  the person objected at the time to doing so on the ground that it might incriminate the person, or
(b)  the person was not warned on that occasion that the person may object to providing the information or giving the answer on the ground that it might incriminate the person.
(4) Documents admissible Any document provided by a person in compliance with a requirement under this Subdivision is not inadmissible in evidence against the person in criminal proceedings on the ground that the document might incriminate the person.
(5) Further information Further information obtained as a result of a document or information provided or an answer given in compliance with a requirement under this Subdivision is not inadmissible on the ground:
(a)  that the document or information had to be provided or the answer had to be given, or
(b)  that the document or information provided or answer given might incriminate the person.
75   Effect on other functions
(1)  This Subdivision does not affect any functions conferred by any other provision of this Act or by any other Act.
(2)  In particular, this Subdivision does not affect the functions conferred by Subdivision 3.
(3)  This Subdivision does not limit the conditions that can be imposed on a boarding house authorisation or manager approval.
Subdivision 3 Powers of entry
76   Powers of entry and inspection by enforcement officers without consent or warrant
(cf YCS Act, s 25 (2)–(4))
(1)  The following premises may be entered under this section:
(a)  an authorised boarding house,
(b)  premises that are the subject of an application for a boarding house authorisation.
(2)  An enforcement officer may, at any time and with such assistants (including police officers) as may reasonably be required, enter such premises and do any of the following for an enforcement purpose:
(a)  inspect the premises and any plant, equipment, vehicle or other thing,
(b)  photograph or film, or make audio recordings or make sketches of, any part of the premises or anything at the premises,
(c)  inspect and make copies of, or take extracts from, any document kept at the premises,
(d)  take any document or any other thing at the premises,
(e)  ask a person at the premises:
(i)  to answer a question to the best of that person’s knowledge, information and belief, or
(ii)  to take reasonable steps to provide information or produce a document.
(3)  Without limiting subsection (2), an enforcement officer exercising functions under this section may be accompanied by one or more medical practitioners and any such medical practitioners may inspect the premises and observe, examine and speak with any person apparently residing at the premises.
(4)  A power under subsection (2) (a), (b), (c) or (d) is limited to a document or thing that is used or likely to be used in the management or operation of the premises.
(5)  If the enforcement officer takes any document or thing under this section, he or she must:
(a)  give notice of the taking of the document or thing to the person apparently in charge of it or to a manager of the premises, and
(b)  return the document or thing to that person or the premises within 7 days after taking it.
(6)  An enforcement officer may not enter and inspect an unauthorised boarding house unless:
(a)  the enforcement purpose for which the officer is entering the boarding house is to make an inquiry in relation to an application for a boarding house authorisation for the boarding house, or
(b)  the manager of the boarding house consents to the entry and the inspection, or
(c)  the officer is doing so under the authority of a search warrant.
(7)  In this section:
enforcement purpose means any of the following purposes:
(a)  making an inquiry in relation to an application for a boarding house authorisation for premises,
(b)  ensuring that the provisions of this Part and the regulations for this Part with respect to premises, and of any conditions imposed on a boarding house authorisation or other authority with respect to premises, are being complied with,
(c)  ensuring that the conditions of any exemption relating to premises are being complied with.
77   Powers of entry by authorised service providers without consent or warrant
(1)  The Secretary may, by instrument in writing (the authorisation instrument), authorise a person (an authorised service provider) to enter authorised boarding houses under this section if the Secretary is of the opinion that the person is able to provide relevant information or advice to residents of such boarding houses about support services, financial services, legal services or advocacy services provided by the person or the organisation to which the person belongs.
(2)  The authorisation of an authorised service provider:
(a)  is subject to any requirements of this section and to such conditions as may be specified in the authorisation instrument, and
(b)  remains in force for the period specified in the authorisation instrument (being a period not exceeding 12 months), unless sooner revoked or surrendered.
(3)  An authorised service provider may, at any reasonable time and subject to the conditions of the authorisation:
(a)  enter an authorised boarding house for the purpose of conferring with any resident of the boarding house to determine whether the resident wishes to access the services provided by the provider or the organisation to which the provider belongs, and
(b)  provide such services, or arrange for the organisation to provide such services, if a resident wishes to access the services.
(4)  An authorised service provider must give the authorised operator or approved manager of the authorised boarding house at least 24 hours notice of the provider’s intention to enter the boarding house.
(5)  When entering an authorised boarding house under this section, an authorised service provider must identify (or make a reasonable attempt to identify) himself or herself to the manager or any other person apparently in charge of the boarding house.
(6)  An authorised service provider must produce his or her authorisation instrument for inspection on demand when exercising his or her functions under this section.
(7)  The Secretary may, by notice served on the authorised service provider, revoke the authorisation of the provider at any time and for any reason.
(8)  It is a condition of a boarding house authorisation and a manager approval that the authorised operator and approved manager of an authorised boarding house permit an authorised service provider to enter, and confer with residents of, the authorised boarding house in the manner authorised by or under this section.
78   Entry and inspection under search warrant
(cf YCS Act, s 25 (7))
(1)  An enforcement officer may (with the written consent of the Secretary) apply to an authorised warrants officer for a search warrant if the enforcement officer has reasonable grounds for believing that a provision of this Part or the regulations for this Part has been or is being contravened at any premises.
(2)  An authorised warrants officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an enforcement officer named in the warrant:
(a)  to enter the premises, and
(b)  to search the premises for evidence of a contravention of this Part or the regulations for this Part, and
(c)  to exercise the powers conferred on an enforcement officer by section 76.
(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
(4)  Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a police officer:
(a)  may accompany an enforcement officer executing a search warrant issued under this section, and
(b)  may take all reasonable steps to assist the enforcement officer in the exercise of the officer’s functions under this section.
(5)  In this section:
authorised warrants officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.
Subdivision 4 Compliance notices
79   Issue of compliance notices by Secretary
(1)  If the Secretary is of the opinion that a person is contravening a provision of this Part or the regulations for this Part, the Secretary may serve on the person a notice (a compliance notice) requiring the person to remedy the contravention within the period specified in the notice.
(2)  A compliance notice must:
(a)  give particulars of the alleged contravention, and
(b)  include information about rights (if any) to seek a review of the Secretary’s decision to issue the notice.
Note.
 Section 91 (9) allows the regulations to provide for the internal review of compliance notices.
(3)  A compliance notice may include directions as to the measures to be taken to remedy any contravention to which the notice relates or to otherwise comply with the notice.
(4)  A compliance notice may offer the person to whom it is issued a choice of ways in which to remedy the contravention or to comply with the notice.
80   Failure to comply with compliance notice
A person who, without reasonable excuse, fails to comply with a requirement imposed by a compliance notice issued to the person is guilty of an offence.
Maximum penalty:
(a)  in the case of a corporation—40 penalty units and in addition, for a continuing offence, 10 penalty units for each day the offence continues, and
(b)  in any other case—20 penalty units and in addition, for a continuing offence, 5 penalty units for each day the offence continues.
81   Proceedings for offences not affected by compliance notices
(1)  The issue, variation or revocation of a compliance notice does not affect any proceedings for an offence against this Act or the regulations in connection with any matter in respect of which the notice was issued.
(2)  However, a person cannot be convicted of both an offence of failing to comply with a compliance notice and another offence against this Act or the regulations in respect of the same act or omission.
Subdivision 5 Operation of assisted boarding houses
82   Records
(1)  It is a condition of a boarding house authorisation that the authorised operator ensures that the requirements of this section concerning records are complied with.
(2)  An authorised operator of an authorised boarding house must ensure that such records as the regulations require are kept in relation to the boarding house.
(3)  The authorised operator must ensure that the records are kept in such a manner that they are readily accessible if the authorised operator is required to produce them to the Secretary, or to any other person who is authorised to inspect them, under this Part.
83   Notification of deaths, sexual assaults and other incidents involving residents of authorised boarding houses
(cf YCS Act, s 26)
(1)  The manager of an authorised boarding house must, as soon as is reasonably possible after becoming aware of any of the following incidents, report the incident to the Secretary:
(a)  the death of a resident of the boarding house,
(b)  the sexual assault (or the making of an allegation of sexual assault) of a resident of the boarding house,
(c)  the absence of a resident of the boarding house for a period of more than 24 hours if the resident has not informed the manager of his or her whereabouts,
(d)  such other incidents involving residents as may be prescribed by the regulations.
Note.
 Section 122 of the Children and Young Persons (Care and Protection) Act 1998 requires a person who provides residential accommodation for another person who the person has reasonable grounds to suspect is a child living away from home without parental permission to inform the Secretary of the child’s whereabouts. A child for the purposes of that section is a person who is under 16 years of age.
(2)  The manager must also report the death (or the sexual assault or the making of an allegation of sexual assault) of a resident of the boarding house to a police officer as soon as is reasonably practicable after becoming aware of the incident concerned.
(3)  A manager of an authorised boarding house who contravenes this section is guilty of an offence.
Maximum penalty: 50 penalty units.
84   Probity checks on staff members of authorised boarding houses
(1)  It is a condition of the boarding house authorisation that the authorised operator must ensure that the requirements of this section concerning staff members are complied with.
(2)  A person must not be engaged as a staff member of an authorised boarding house unless the authorised operator is satisfied that the person is a suitable person to be involved in the management or operation of the boarding house.
(3)  In deciding whether a person is a suitable person to be involved in the management or operation of the boarding house, the authorised operator must first ensure that a criminal record check is conducted on the person.
(4)  The authorised operator must ensure that a new criminal record check is conducted or obtained in respect of a staff member every 3 years during the period while the person remains a staff member.
(5)  The authorised operator of an authorised boarding house must not engage (or continue to engage) a person to be a staff member of the boarding house if:
(a)  the operator is satisfied from the person’s criminal record check that the person has committed a serious criminal offence, or
(b)  the person refuses to obtain or submit to a criminal record check for the purposes of this section.
(6)  The authorised operator must:
(a)  ensure that a record is kept of any criminal record checks conducted for the purposes of this section for a period of 3 years after the check is conducted, and
(b)  make any such record available for inspection by an enforcement officer on request.
(7)  The regulations may make provision for or with respect to the obtaining and conduct of criminal record checks for the purposes of this section (including the use of a statutory declaration to verify a person’s criminal record when a criminal record check cannot be obtained or conducted).
Subdivision 6 Removal of persons with additional needs from unauthorised boarding houses
85   Removal of young residents from unauthorised boarding houses
(cf YCS Act, s 27)
(1)  This section applies in relation to any person with additional needs who is under 18 years of age and a resident of an unauthorised boarding house (a young resident).
(2)  If requested to do so by an employee of the Department of Family and Community Services, a parent or guardian of a young resident (or a person acting on behalf of a parent or guardian) is to remove the young resident from an unauthorised boarding house as soon as possible after the request is made.
(3)  If a young resident is not removed following any such request or a parent or guardian of the young resident cannot be located, the young resident is taken to be a child or young person in need of care and protection for the purposes of the Children and Young Persons (Care and Protection) Act 1998.
Note.
 The Secretary may take action under the Children and Young Persons (Care and Protection) Act 1998 to protect children or young persons who are in need of care and protection.
86   Assessment of certain removal expenses resulting from unauthorised boarding houses
(cf YCS Act, s 31)
(1)  The following persons may apply to the Local Court for a determination under this section if a person (the offender) has been convicted of the offence of using (or permitting the use of) boarding premises as an assisted boarding house without the authority of a boarding house authorisation:
(a)  a person with additional needs who was a resident of the boarding house at the time the offence was committed and moved to another residence within the period of 28 days after the offence was committed,
(b)  the Secretary if the Department of Family and Community Services incurred expenses in connection with the removal of persons with additional needs who were resident at the unauthorised boarding house and moving them to other residences.
(2)  An application under this section must be made within 12 months after the conviction of the offender.
(3)  In determining an application under this section, the Local Court is to determine an amount that seems just and reasonable to the Court:
(a)  in the case of an application by a person with additional needs—to compensate for the removal expenses and any other expenses incurred by the person when the person moved to another residence, or
(b)  in the case of an application by the Secretary—to compensate for the removal expenses and any other expenses incurred by the Department of Family and Community Services when moving persons with additional needs who were resident at the unauthorised boarding house to other residences.
(4)  An amount determined by the Local Court on an application made under this section operates as a judgment debt of the offender under the Civil Procedure Act 2005 and is enforceable as such under that Act.