ACT No. X of 2016 AN ACT to provide for the appointment of a Commissioner for Older Persons with power to promote and safeguard the interests of older persons, and investigate any alleged breaches or potential infringements of the human rights of the older persons.

I assent.

M ARIE L OUISE

(L.S.)

C OLEIRO P RECA

President

29th January, 2016

ACT No. X of 2016

AN ACT to provide for the appointment of a Commissioner for

Older Persons with power to promote and safeguard the interests of

older persons, and investigate any alleged breaches or potential

infringements of the human rights of the older persons.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same as follows:-

(1) The short title of this Act is the Commissioner for

Older Persons Act, 2016.

(2) This Act shall come into force on such date as the Minister

responsible for the Family and Social Solidarity may by notice in the

Gazette appoint.

(Article 15)

Summons to Witnesses

(Commissioner for Older Persons Act)

To A.B. (name of person summoned and residence)

You are hereby summoned to appear before ................................ at

.................................. (place) on .............................. (date and time)

and to give evidence in respect of ...............................................

...................................................... (the matter of the investigation).

Given under my hand this ................. day of ................. 20 ........

(Signature of the Commissioner)

Passed by the House of Representatives at Sitting No. 348 of the

25th January, 2016.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

€1.26

In this Act, unless the context otherwise requires

''Commissioner'' means the Commissioner for Older Persons

appointed under article 3 and includes any officer assigned to assist

the Commissioner and authorised by him in that behalf;

''Committee'' means the Social Affairs Committee of the House

of Representatives or any other committee substituting the same;

''complainant'' means any person who reports, in writing or

verbally, an alleged breach or potential infringement of the human

rights of any older person, provided that a verbal complaint should

always be subsequently put in writing;

"older person" means a person aged over sixty years;

''Minister'' means the Minister responsible for Older Persons;

''Human Rights of Older Persons'' refers to the international

principles for older persons enunciated in the United Nations

Principles for Older Persons adopted by the General Assembly of the

United Nations on 16 December 1991 (resolution 46/91).

(1) There shall be a Commissioner for Older Persons Appointment of

who shall be appointed by the Prime Minister after consultation with Commissioner.

the Leader of the Opposition.

(2) A person shall not be qualified to hold office as

Commissioner if such person

(a)

is a Minister, Parliamentary Secretary, or a Member

of the House of Representatives; or

(b)

is serving as a judge or magistrate; or

(c)

is legally incapacitated; or

(d) has been declared bankrupt or has made a

composition or arrangement with his creditors; or

(e)

has been convicted of a crime affecting public trust

or theft or fraud, or of knowingly receiving property obtained by

theft or fraud, a crime affecting the good order of families, of an

offence against this Act or an offence committed against or to

the detriment of an older person.

(3) Where the person appointed Commissioner is, prior to

such appointment, already a public officer, such person shall continue

to retain such office but shall not hold any position which is

incompatible with the proper performance of his or her official duties

as Commissioner for Older Persons or with the impartiality and

independence expected from this office or with public confidence

therein.

In the exercise of the functions established under this Act, Independence of

the Commissioner shall act independently and shall not be subject to functions.

the direction or control of any other person or authority.

Any document purporting to be an instrument made or Representation

issued and signed by the Commissioner shall be received in evidence of

Commissioner.

and shall, until the contrary is proved, be deemed to be an instrument

made or issued by the Commissioner.

(1) Subject to the provisions of sub-article (2), the Tenure of office.

Commissioner shall hold office for a term of three years and shall be

eligible for reappointment on the expiration of such term of office.

(2) Unless the office becomes vacant sooner, a person

appointed as Commissioner shall hold office until a successor is

appointed.

(3) The Commissioner may at any time resign from office by

letter in writing addressed to the Minister.

A Commissioner may at any time be removed or

suspended from office by the Prime Minister after consultation with

the Committee on the grounds of proved inability to perform the

functions of the office of Commissioner or misbehaviour

Provided that if the Committee is not constituted or if

Parliament is not in session, the Commissioner may be suspended

from office by the Prime Minister, acting in accordance with his own

discretion

Provided also that, if the Commissioner is unable to

perform the functions of the office or in case of misbehaviour proved

to the satisfaction of the Prime Minister, such suspension shall only

remain effective for a maximum period of two months after the

Committee is constituted and Parliament is in session, after which

term the Committee is to confirm or revoke such suspension.

(1) The Prime Minister may, at any time during the

illness or absence of the Commissioner or for any other temporary

cause, appoint a substitute until the resumption of office of the

Commissioner.

(2) A person shall not be qualified to be appointed under this

article if such person is disqualified to be appointed to the office of

Commissioner under article 3(2).

(1)

The Commissioner shall have the following

functions

(a) to promote and advocate human rights and interests

of older persons, and the need to safeguard those rights and

interests;

(b) to promote opportunities for, and the elimination of

discrimination against, older persons;

(c)

to encourage best practices in the treatment of older

persons;

(d) to keep under review the adequacy and effectiveness

of any legislation relating and affecting the interests of older

persons;

(e)

to advocate for adequate support and services to

carers of the older persons;

(f)

to monitor and examine the impact of any decision

taken by any body, entity or authority on the human rights and

interests of older persons;

(g) to promote the protection of older persons from any

kind of abuse, harm, ill-treatment, neglect and exploitation of

any form;

(h) to promote the highest standards of health,

education, leisure, recreational facilities and social services for

older persons in line with the relative approved standards in

place from time to time;

(i)

to ensure that all possible measures are taken by the

relevant authorities to prevent and address poverty and social

exclusion and related issues among older persons; and

(j)

to promote compliance with the United Nations

Principles for Older Persons adopted by the General Assembly

of the United Nations on 16 December 1991, the Madrid

International Plan of Action on Ageing adopted by the United

Nations during the Second World Assembly on Ageing (8-12

April 2002), and with such other international treaties,

conventions or agreements relating to older persons as are or

may be ratified or otherwise acceded to by Malta.

(2) The Commissioner may issue guidelines on best practices

in connection with any matter relating to the interests of older persons

and in doing so the Commissioner may carry out any consultation

which may be required or necessary.

The Commissioner shall be guided by the following Guiding

principles.

general principles

(a)

the best interests of older persons are paramount;

(b) all older persons are to be treated with dignity,

respect and fairness;

(c)

older persons with disability and, or disadvantaged

social circumstances should enjoy the same quality of life as all

other older persons;

(d) older persons and their families are to be provided

with opportunities to participate in decisions that affect them

and in defining, planning and evaluating services to older

persons; and

(e)

government, families and communities share the

responsibility for the promotion of the development and well-

being of older persons.

In order to promote the welfare of older persons and to

monitor the conditions under which older persons progress, the

Commissioner shall

(a) provide public education and information designed

to promote an understanding of human rights of older persons;

(b) initiate measures for asserting human rights of older

persons and promoting their interests;

(c)

collect information and investigate any alleged

breaches and potential infringements of the human rights of

older persons;

(d) set standards to be applied by ministries,

departments or agencies of the Government to help ensure that

their internal review processes are responsive to complaints

about decisions concerning the provision of designated services

to older persons;

(e)

monitor

whether

ministries,

government

departments and agencies referred to in paragraph (d) are

meeting the standards set under that paragraph;

(f)

collect data about, conduct or encourage research

into, matters relevant to services for older persons;

(g)

ensure that such services in relation to older persons

are -

(i) accessible,

(ii) community-based,

(iii) co-ordinated and integrated,

(iv) inclusive of gender, disability, culture,

language, and sexual orientation, and

(v) responsive to individual needs;

(h) provide public education and information designed

to promote an understanding of, and to invite public comment

on, the work of the Commissioner;

(i)

monitor and assess the policies and practices of

social welfare services affecting older persons;

(j)

ensure that legislation relating to the protection of

older persons’ interests is observed;

(k) act as a spokesperson for human rights, needs and

interests of older persons and put forward proposals for

measures which can solve or prevent conflicts between older

persons and society; and

(l)

advise and submit proposals to Government on such

measures as may be required to foster, promote and safeguard

human rights and interests of older persons.

(1) There shall be a Council for Older Persons Council for

appointed by the Minister to assist the Commissioner. This Council Older Persons.

shall be composed of the Commissioner, who shall be the

chairperson, and six other members appointed as follows

(a)

one person appointed by the Minister;

(b)

one person appointed by the Minister responsible for

health;

(c)

one person appointed by the Minister responsible for

education;

(d) one person appointed by the National Commission

for Active Ageing; and

(e)

two persons appointed by the National Council for

the Elderly.

(2) The Council shall have the right to co-opt up to five other

persons who, in the opinion of the Council, best represent older

persons and the human rights of older persons. These persons shall, as

far as possible, be older persons and persons involved in the

promotion of active ageing measures and initiatives.

(3) The quorum of the Council shall be established by the

presence of the chairperson and any other two members present.

(4) The Council shall meet at least once every three months

and shall be convened by the chairperson. The chairperson shall also

convene a meeting of the Council when requested to do so by at least

two members of the Council.

(5) The Council shall, subject to the foregoing provisions

regulate its own procedures.

(6) The functions of the Council shall be

(a) to monitor compliance with the United Nations

Principles for Older Persons adopted by the General Assembly

of the United Nations on 16 December 1991, the Madrid

International Plan of Action on Ageing adopted by the United

Nations during the Second World Assembly on Ageing (8-12

April 2002), and with all such other international treaties,

conventions or agreements relating to older persons as are or

may be ratified or otherwise acceded to by Malta;

(b) to advise and assist the Commissioner in the

performance of the functions of the Commissioner as listed in

this Act, and in the promotion of the welfare of older persons as

specified in article 11.

The Commissioner, the Council members and every

member of the staff of the Commissioner’s office shall be bound by

confidentiality in respect of all personal matters that come to their

knowledge in the exercise of their powers and the carrying out of

their duties and functions under this Act; they shall not divulge any

matter coming to their knowledge as aforesaid except for the purpose

of an official investigation, or prosecutions for an offence against this

Act or any other offence against an older person when carried out by

the competent official authority.

(1) Saving the provisions of sub-article (2), the

Commissioner may carry out an investigation for any purpose

connected with the execution of the Commissioner’s duties either on

a written complaint made to the Commissioner by any person or on

the Commissioner’s own motion.

(2) The Commissioner shall not carry out investigations

concerning specific, individual conflicts between older persons and

their guardians or carers and any other matter that falls within the

competence of any court or tribunal established by law and in any

such case the Commissioner shall submit to the complainant the

reasons for the refusal.

(3) Every investigation by the Commissioner under this Act

shall be conducted in camera.

(4) The Commissioner may hear or obtain information from

such persons as he thinks fit, and may make such enquiries as he

thinks fit.

(5) The Commissioner shall not make any finding or

recommendation that may adversely affect the reputation of any

person being investigated without granting such person a right to be

heard.

(6) If, during or after any investigation, the Commissioner is

of the opinion that there is substantial evidence of any significant

breach on the part of any person being investigated, he shall refer the

matter to the appropriate authority including the Police

Provided that the Commissioner may continue further with

his investigation after having referred the matter as aforesaid.

(7) Any person to whom this Act applies has a duty to

cooperate, at all stages, with an investigation under this Act.

(8) Subject to the provisions of this Act and of any rules made

thereunder, the Commissioner may regulate his procedure in such

manner as he thinks fit.

(9) A rejection by the Commissioner to carry out an

investigation shall be final.

(10) Upon acceding to a request to investigate a complaint, the

Commissioner shall notify the complainant of the decision to

investigate and shall notify any department, agency or entity involved

of the intention to investigate.

(11) The Commissioner may advise a complainant to pursue all

applicable and relevant administrative or judicial remedies or

channels of complaint open to the complainant before or in lieu of

pursuing a complaint with the Commissioner.

(12) The Commissioner shall prepare and publish a report of the

findings in any formal investigation and shall include in it such

recommendations as appear to be necessary or expedient.

(13) The Commissioner may delegate any of his functions to a

senior official to the extent authorised by the Commissioner.

(1) For the purpose of an investigation the

Commissioner may require any person who possesses documents or

information relevant to the investigation, which the Commissioner

thinks it necessary or expedient to have, to

(a)

produce such documents; and, or

(b)

furnish the information in writing; and, or

(c)

attend at a specified time and place and give oral

information on oath.

(2) Summons for attendance of witnesses may be in the form

set out in the Schedule or in such other form as may be appropriate to

the case, and shall be signed by the Commissioner.

(3) Notwithstanding the provisions of sub-articles (1) and (2),

no person shall be compelled to give information or produce

documents which such person could not be compelled to give or

produce in civil or criminal proceedings before a court.

(4) The Commissioner shall have power to -

(a)

summon witnesses;

(b) administer an oath to any witness and to any person

concerned in the investigation.

(5) A summons may be served either by hand or by post.

Where it is served by hand it shall be sufficient to prove service by

evidence that the summons was left with a person over the age of

sixteen years at the place of residence or of business of the person

summoned; and if served by post it shall be sufficient to prove service

by evidence that the summons was properly addressed and posted.

(6) The following shall mutatis mutandis apply to the person

to be heard by the Commissioner

(a)

the provisions of article 522 of the Criminal Code,

where the person to be heard refuses to testify when required to

do so by the Commissioner; for this purpose, the proceedings

before the Commissioner shall be deemed to be proceedings

taking place before a court;

(b) the provisions of articles 104, 105, 107, 108 and 109

of the Criminal Code, as the case may be, where the person to

be heard does not testify to the truth; for this purpose the

proceedings before the Commissioner shall be deemed to be

proceedings taking place before a court and the person to be

heard shall be deemed to be a person testifying in those

proceedings

Provided that nothing in this sub-article shall be

interpreted as conferring upon the Commissioner the power to

convict or sentence any person for any criminal offence. In any

proceedings before a Court of criminal jurisdiction upon a charge

raised against any person for a breach of the provisions of articles

104, 105, 107, 108, 109 or 522 of the Criminal Code in relation to Cap. 9.

evidence given or to refusal to give evidence before the

Commissioner such offence shall, for all intents and purposes of

law, be deemed to have been committed before a court of

criminal jurisdiction and shall be treated in the same manner as

though it had been committed in such a court.

(7) For the purpose of determining the applicable punishment

as may be necessary in proceedings for refusal to testify or for perjury

or false oath under this sub-article, the allegation being inquired into

or adjudicated by the Commissioner shall be deemed to be liable to

the punishment to which it would have been liable had the same fact

taken place before any court.

(1) The Commissioner may make recommendations for Recommenda-

action to be taken by other persons or any body as may be necessary tions.

or expedient and may publish such recommendations, if the

Commissioner deems fit, without revealing the identity of the person

to whom the report refers.

(2) In those cases where the Commissioner decides to make

recommendations, a report shall be drawn up by the Commissioner

explaining the reasons for the recommendations and the

Commissioner shall send a copy of such report.

(1) If it appears to the Commissioner that a particular Compliance

person or body is not complying with the provisions of the United with

Nations

Nations Principles for Older Persons adopted by the General Principles

Older Persons.

Assembly of the United Nations on 16 December 1991, then the

Commissioner may make recommendations in the form of a

compliance notice, which shall state the Commissioner’s opinion as

to the way in which the provisions of the Principles are not being

complied with and what action should be taken to comply.

(2) Any person or body receiving a recommendation in

accordance with sub-article (1) shall provide the Commissioner with

a reply within fifteen days from the date of notification of such

recommendation.

(3) Where any person or body to whom a recommendation is

directed intends to consider the recommendation, they shall furnish

the Commissioner with information regarding the action which has

been taken or it is intended to take in response to the

recommendation.

(4) Where any person or body to whom a recommendation is

directed intends not to comply with it, they shall furnish the

Commissioner with reasons for not doing so and the Commissioner

may, if deemed fit, publish these reasons.

(5) Failure to reply shall be deemed to be an intention not to

comply with the recommendation.

(6) Any person or body to whom a recommendation has been

directed shall provide the Commissioner with all the necessary

information to verify whether the recommendation has been complied

with or not.

(7) The Commissioner shall establish and maintain a Register

of Compliance Notices and the register may be inspected by any

person after obtaining the necessary authorisation from the

Commissioner.

(1) Whenever it appears necessary or expedient, the

Commissioner may carry out or cause to be carried out an Older

Person Impact Statement relating to any decision or proposal on

policy which affects older persons.

(2) Any Older Person Impact Statement shall set out the

probable impact on older persons of the decision or proposal on

policy.

(3) The Commissioner may publish the Older Person Impact

Statement.

(1) The Commissioner shall, not later than six weeks

after the end of each calendar year, compile and transmit to the

Minister an annual report which shall include

(a)

a report of the Commissioner’s activities during the

year;

(b) a general description of the circumstances of older

persons in Malta and a survey of the developments which have

affected them;

(c)

any recommendations regarding the need for

legislation or change in rules or policies; and

(d) any responses made to the Commissioner in

accordance with this Act.

(2) The Minister shall, at the earliest opportunity and not later

than eight weeks after he has received a copy of every such report, or

if at any time during that period the House of Representatives is not in

session, within eight weeks from the beginning of the next following

session, cause a copy of every such report to be laid on the Table of

the House of Representatives.

(3) The report mentioned in sub-article (1) shall be discussed

by the Committee.

Any person who knowingly impedes or obstructs the Offences and

Commissioner or a member of his staff in performing or exercising penalties.

powers or functions given under this Act; or who refuses, or without

sufficient cause, fails to attend at the time and place mentioned in the

summons; or who refuses, without sufficient cause, to answer fully

and satisfactorily, to the best of his knowledge and belief all questions

put to him by the Commissioner, or refuses or fails, without sufficient

cause, to give any information required by the Commissioner or

knowingly provides false or misleading information as required under

this Act, shall be guilty of an offence and shall on conviction be liable

to a fine (multa) not exceeding one thousand five hundred euro

(€1,500);

Provided that when the act committed by an offender

constitutes a more serious offence under any other law, the provisions

of that other law shall apply in respect of that act.

The provisions of articles 3, 6, 7 and 9 shall be in addition Provisions of

to, and shall not derogate from, the provisions of the Constitution of this

derogate from

Malta with regard to the appointment, discipline and removal of provisions

the Constitution

public officers.

of Malta.