COMMISSIONER FOR OLDER PERSONS ACT

COMMISSIONER FOR OLDER PERSONS

CHAPTER 553

COMMISSIONER FOR OLDER PERSONS 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.

15th October, 2016 *

ACT X of 2016 .

The short title of this Act is the Commissioner for Older

Persons Act.

(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)

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 who

shall be appointed by the Prime Minister after consultation with 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

* see article 1(2) of this Act as originally enacted, and Legal Notice 339 of 2016.

COMMISSIONER FOR OLDER PERSONS

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,

the Commissioner shall act independently and shall not be subject

to the direction or control of any other person or authority.

Any document purporting to be an instrument made or

issued and signed by the Commissioner shall be received in

evidence 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

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,

a p p o i n t a s u b s t i t u t e u n t i l t h e r e s u m p t i o n o f o ff i c e o f t h e

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 FOR OLDER PERSONS

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

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

COMMISSIONER FOR OLDER PERSONS

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

COMMISSIONER FOR OLDER PERSONS

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 appointed

by the Minister to assist the Commissioner. This Council 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

COMMISSIONER FOR OLDER PERSONS

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

COMMISSIONER FOR OLDER PERSONS

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

COMMISSIONER FOR OLDER PERSONS

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 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

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

necessary 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

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

Nations Principles for Older Persons adopted by the General

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.

COMMISSIONER FOR OLDER PERSONS

(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

Commissioner or a member of his staff in performing or exercising

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

COMMISSIONER FOR OLDER PERSONS

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

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

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

public officers.

COMMISSIONER FOR OLDER PERSONS