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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Health Legislation Amendment Bill
2007
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendments relating to disciplinary tribunals 2
4 Other amendments 2
5 Repeal of Act 2
Schedule 1 Amendments relating to disciplinary tribunals 3
Schedule 2 Other amendments 11
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2007
New South Wales
Health Legislation Amendment Bill
2007
Act No , 2007
An Act to amend various Acts and regulations to make provision with respect to
health professional disciplinary tribunals and certain mental health matters relating
to medical or dental students, to make miscellaneous amendments; and for other
purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Health Legislation Amendment Bill 2007
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Health Legislation Amendment Act 2007.
2 Commencement
(1) Except as provided by subsections (2) and (3), this Act commences on
the date of assent to this Act.
(2) Schedule 2.1 [1] commences on 1 July 2008.
(3) Schedule 2.13 [4] commences on a day or days to be appointed by
proclamation.
3 Amendments relating to disciplinary tribunals
The Acts specified in Schedule 1 are amended as set out in that
Schedule.
4 Other amendments
The Acts and instruments specified in Schedule 2 are amended as set out
in that Schedule.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
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Health Legislation Amendment Bill 2007
Amendments relating to disciplinary tribunals Schedule 1
Schedule 1 Amendments relating to disciplinary
tribunals
(Section 3)
1.1 Chiropractors Act 2001 No 15
[1] Section 100 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 100 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 5 Proceedings before the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
1.2 Dental Practice Act 2001 No 64
[1] Section 121 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 121 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
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Schedule 1 Amendments relating to disciplinary tribunals
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 5 Proceedings before the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
1.3 Medical Practice Act 1992 No 94
[1] Section 148 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 148 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
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Amendments relating to disciplinary tribunals Schedule 1
[2] Schedule 2 Proceedings before a Committee or the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
1.4 Nurses and Midwives Act 1991 No 9
[1] Section 60 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 60 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 2 Proceedings before a Committee and the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
[3] Schedule 2, clause 6
Omit the penalty provision at the end of the clause. Insert instead:
Maximum penalty: 150 penalty units in the case of a corporation
and 20 penalty units in any other case.
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Schedule 1 Amendments relating to disciplinary tribunals
1.5 Optometrists Act 2002 No 30
[1] Section 104 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 104 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 5 Proceedings before the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
1.6 Osteopaths Act 2001 No 16
[1] Section 100 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 100 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
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Amendments relating to disciplinary tribunals Schedule 1
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 5 Proceedings before the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
1.7 Pharmacy Act 1964 No 48
Schedule 2 Inquiries by the Board or a Committee
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
1.8 Pharmacy Practice Act 2006 No 59
[1] Section 113 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 113 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
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Schedule 1 Amendments relating to disciplinary tribunals
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 6 Proceedings before Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
1.9 Physiotherapists Act 2001 No 67
[1] Section 101 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 101 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 5 Proceedings before the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
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Amendments relating to disciplinary tribunals Schedule 1
1.10 Podiatrists Act 2003 No 69
[1] Section 100 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 100 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 5 Proceedings before the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
1.11 Psychologists Act 2001 No 69
[1] Section 100 Chairperson and Deputy Chairpersons of the Tribunal
Insert after section 100 (4):
(4A) If the period of a person's appointment as Chairperson or a
Deputy Chairperson expires while the person is sitting on the
Tribunal for the purposes of an inquiry or an appeal, the person
may, despite that expiry, continue to sit on the Tribunal for the
purpose of that inquiry or appeal (the continuing inquiry or
appeal).
(4B) For the purposes of the conduct or hearing of the continuing
inquiry or appeal (and any provision of this Act or the regulations
with respect to such an inquiry or an appeal), the person referred
to in subsection (4A):
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Schedule 1 Amendments relating to disciplinary tribunals
(a) is taken to be a Deputy Chairperson, and
(b) has and may exercise only the functions conferred or
imposed on a Deputy Chairperson under this Act, and
(c) may exercise those functions only in respect of the
continuing inquiry or appeal.
[2] Schedule 5 Proceedings before the Tribunal
Insert after clause 6 (3):
(3A) For the purposes of this clause, a reference to the name of any
person includes a reference to any information, picture or other
material that identifies the person or is likely to lead to the
identification of the person.
Page 10
Health Legislation Amendment Bill 2007
Other amendments Schedule 2
Schedule 2 Other amendments
(Section 4)
2.1 Dental Practice Act 2001 No 64
[1] Section 33 Restrictions on dental auxiliaries
Omit section 33 (2).
[2] Section 39 Referral of mental health matters to Registrar
Insert "or dental student" after "registered dental care provider".
2.2 Dental Practice Regulation 2004
Clause 25 Notice of mental incapacity of registered dental care provider
or dental student
Insert "or dental student" after "registered dental care provider" wherever
occurring.
2.3 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices issued
Insert in appropriate order:
Smoke-free Environment Act 2000, section 20A
2.4 Health Administration Act 1982 No 135
Section 13A Corporation to manage accounts of health professional
boards
Omit section 13A (3). Insert instead:
(3) The Corporation may pay out of such an account:
(a) amounts required to meet the costs incurred in the
administration or execution of the Act establishing the
board in respect of which the account is kept and the
regulations made under that Act, and
(b) amounts necessary to meet any costs associated with the
employment of NSW Health Service staff to enable the
Corporation to exercise its functions in respect of that
board.
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Health Legislation Amendment Bill 2007
Schedule 2 Other amendments
2.5 Health Services Act 1997 No 154
[1] Sections 67AA and 67AB
Insert before section 67A:
67AA Definition
In this Chapter, appointed body means a committee, board or
other body appointed by the Director-General under section
67AB.
67AB Appointed body
(1) The Director-General may appoint a committee, board or other
body as an appointed body for the purposes of this Chapter.
(2) An appointed body is to consist of such members appointed by
the Director-General as the Director-General thinks fit.
(3) The procedure of an appointed body is to be determined by the
Director-General or (subject to any determination of the
Director-General) by the appointed body.
(4) A member of an appointed body holds office for such period (not
exceeding 5 years) as is specified in the member's instrument of
appointment, but is eligible (if otherwise qualified) for
re-appointment.
(5) The Director-General may terminate the appointment of a
member of an appointed body at any time for any or no reason by
notice in writing to the member.
(6) A member of an appointed body is entitled to such fees and
allowances as the Director-General may determine from time to
time.
(7) A member of an appointed body is not personally liable for any
act or omission done or omitted to be done in good faith for the
purposes of this Chapter.
(8) If subsection (7) prevents liability attaching to a member of an
appointed body, the liability attaches instead to the
Director-General.
[2] Section 67B Provision etc of ambulance services
Insert after section 67B (2):
(3) The Director-General may delegate the exercise of any function
of the Director-General under this section (other than this power
of delegation) to an appointed body.
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Other amendments Schedule 2
[3] Section 67C Ambulance Services Advisory Council
Omit section 67C (5). Insert instead:
(5) The function of the Advisory Council is to provide advice to the
Director-General or to an appointed body in relation to the
exercise of functions under this Chapter in respect of the
provision of ambulance services.
[4] Section 112 Determination of appeal
Insert after section 112 (1):
(1A) Following its determination of an appeal, if a Committee
considers on reasonable grounds that:
(a) serious concerns exist in relation to the performance or
competence of the appellant, or
(b) the appellant has engaged in conduct that may constitute
professional misconduct or unsatisfactory professional
conduct under the health registration Act under which the
appellant is registered, or
(c) if the appellant is a medical practitioner--the appellant
may suffer from an impairment (within the meaning of the
Medical Practice Act 1992), or
(d) if the appellant is a dentist--the appellant may suffer from
an impairment as a dentist (within the meaning of the
Dental Practice Act 2001),
the Chairperson of the Committee may refer the matter to the
New South Wales Medical Board to be dealt with as a complaint
under Part 4 of the Medical Practice Act 1992 (in the case of a
medical practitioner) or to the Dental Board to be dealt with as a
complaint under Part 5 of the Dental Practice Act 2001 (in the
case of a dentist).
[5] Section 139
Insert after section 138:
139 Liability of persons conducting performance reviews etc
(1) This section applies with respect to the provision of expert advice
or assistance by a person, for or on behalf of a public health
organisation or the Director-General and in the person's
professional capacity, in connection with:
(a) a review of the performance or conduct of, or
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Health Legislation Amendment Bill 2007
Schedule 2 Other amendments
(b) a review to determine whether to take disciplinary action
in relation to,
any visiting practitioner or member of the NSW Health Service.
(2) No matter or thing done by the person in providing the advice or
assistance subjects the person personally to any action, liability,
claim or demand if the matter or thing was done by the person in
good faith for the purposes of executing this or any other Act.
(3) If subsection (2) prevents liability attaching to a person, the
liability attaches instead to the public health organisation
concerned or the Director-General (as the case may be).
(4) A reference in this section to the Director-General is a reference
to the Director-General in respect of the provision of ambulance
services under Chapter 5A or the provision of health support
services under Part 1A of Chapter 10.
[6] Dictionary
Insert after paragraph (e) in the definition of health service in Part 1:
(e1) the supply or fitting of any prosthesis or therapeutic
device,
2.6 Medical Practice Act 1992 No 94
[1] Section 4 Entitlement to general registration based on qualifications and
training
Omit section 4 (2) and (3). Insert instead:
(2) A person has recognised medical qualifications if the person:
(a) is a graduate of a Medical School (whether within or
outside Australia) accredited by the Australian Medical
Council, or
(b) has successfully completed examinations held by that
Council for the purposes of registration as a medical
practitioner, or
(c) has received a certificate or other kind of qualification in
accordance with a process approved by the Board for the
purpose of qualifying a person for registration as a medical
practitioner.
(3) The entitlement under this section is an entitlement to general
registration.
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Health Legislation Amendment Bill 2007
Other amendments Schedule 2
[2] Section 54 Board may require practitioner to undergo examination
Omit "a medical examination by a specified registered medical practitioner"
from section 54 (1).
Insert instead "an examination by a specified registered medical practitioner
or a specified registered health practitioner".
[3] Section 54 (2)
Omit "a medical examination".
Insert instead "an examination under subsection (1)".
[4] Section 55 Result of failure to attend counselling or examination
Omit "under this Division to attend counselling or undergo a medical
examination".
Insert instead "under section 50 to attend counselling or under section 54 to
undergo an examination".
[5] Section 70 Referral of mental health matters to Registrar
Insert "or medical student" after "registered medical practitioner".
[6] Section 78A Board may require practitioner to undergo examination
Omit "a medical examination by a specified registered medical practitioner"
from section 78A (1).
Insert instead "an examination by a specified registered medical practitioner
or a specified registered health practitioner".
[7] Section 78A (2) and (3)
Omit "a medical examination" wherever occurring.
Insert instead "an examination under subsection (1)".
[8] Section 79 Board may require student to undergo examination
Omit "a medical examination by a specified registered medical practitioner"
from section 79 (1).
Insert instead "an examination by a specified registered medical practitioner
or a specified registered health practitioner".
[9] Section 79 (2) and (3)
Omit "a medical examination" wherever occurring.
Insert instead "an examination under subsection (1)".
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Schedule 2 Other amendments
[10] Section 136 Delegation by Board and Registrar
Insert after section 136 (2):
(3) In this section, a reference to a person includes a reference to a
group of persons, including a committee established under
section 133.
[11] Section 190A Reports of medical or health practitioners
Omit "a medical examination of a person (a medical report)" from section
190A (1).
Insert instead "an examination of a person by a registered medical practitioner
or a registered health practitioner (a health or medical report)".
[12] Section 190A (2), (3) and (4)
Omit "medical report" wherever occurring.
Insert instead "health or medical report".
[13] Schedule 1 Registration procedure
Omit "medical" from the heading to clause 17.
[14] Schedule 1, clause 17 (1)
Omit "a medical examination by a registered medical practitioner".
Insert instead "an examination by a specified registered medical practitioner
or a specified registered health practitioner".
[15] Schedule 5 Savings and transitional provisions
Insert after clause 35:
Part 7 Provisions consequent on enactment of
Health Legislation Amendment Act 2007
36 Delegations by Board
Anything done or purported to be done under section 136 before
the commencement of amendments to that section by the Health
Legislation Amendment Act 2007 that would have been validly
done had those amendments been in force when it was done is
validated.
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Health Legislation Amendment Bill 2007
Other amendments Schedule 2
[16] Dictionary
Insert in alphabetical order:
registered health practitioner means a person registered under a health
registration Act.
2.7 Medical Practice Regulation 2003
Clause 11 Notice of mental incapacity of registered medical practitioner
or medical student
Insert "or medical student" after "medical practitioner" wherever occurring.
2.8 New South Wales Institute of Psychiatry Act 1964 No 44
Section 5 Members of the Institute
Omit "or a chief executive officer of an area health board constituted under the
Health Services Act 1997" from section 5 (2) (c).
Insert instead "a senior employee of a statutory health corporation constituted
under the Health Services Act 1997 or a member of the Health Executive
Service within the meaning of that Act".
2.9 Nurses and Midwives Act 1991 No 9
[1] Section 77 Protection from liability
Insert after section 77 (b):
(b1) an assessor, or
[2] Section 77
Insert ", the assessor" after "Registrar" where secondly occurring.
2.10 Optometrists Act 2002 No 30
Section 21 Authority for use of drugs by optometrists
Insert after section 21 (2):
(2A) An application for an optometrists drug authority is to be
accompanied by such fee (if any) as is determined by the Minister
in consultation with the Board.
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Schedule 2 Other amendments
2.11 Pharmacy Practice Act 2006 No 59
Section 155 Regulations
Insert after section 155 (2) (l):
(m) infection control standards to be followed by persons in the
practice of pharmacy.
2.12 Poisons and Therapeutic Goods Act 1966 No 31
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
midwife means a registered midwife within the meaning of the
Nurses and Midwives Act 1991.
nurse has the same meaning as it has in the Nurses and Midwives
Act 1991.
podiatrist means a podiatrist registered under the Podiatrists Act
2003.
[2] Section 18AA
Insert after section 18:
18AA Director-General may restrict possession or supply
(1) In this section, relevant person means a medical practitioner, a
nurse, a midwife, a dentist, an optometrist, a pharmacist, a
podiatrist or a veterinary practitioner.
(2) The Director-General may, by order in writing served on a
relevant person, prohibit or restrict the person from possessing,
supplying or prescribing a substance specified in Schedule 2, 3
or 4 of the Poisons List that the person:
(a) possesses, supplies or prescribes in the practice of the
person's profession as a relevant person, or
(b) is licensed or authorised by or under this Act to possess,
supply or prescribe.
(3) Such an order may be made for any one or more of the following
reasons:
(a) the person has requested or agreed in writing to the making
of the order,
(b) the person is convicted of an offence against this Act or the
regulations made under this Act, or of an offence against
the Drug Misuse and Trafficking Act 1985 or the
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Health Legislation Amendment Bill 2007
Other amendments Schedule 2
regulations made under that Act, or an order has been
made against the person under section 10 (1) of the Crimes
(Sentencing Procedure) Act 1999 in respect of such an
offence,
(c) the person has, in the opinion of the Director-General,
failed to comply with any prohibition, restriction or
condition imposed on the person by an order under this
section,
(d) the person is, in the opinion of the Director-General, a
person who should be restricted or prohibited from
possessing, supplying or prescribing such a substance for
the purpose of protecting the life, or the physical or mental
health, of that or any other person (whether or not any
other such person is identifiable).
(4) An order that restricts a person as referred to in subsection (2):
(a) may be made unconditionally or subject to conditions, and
(b) may apply generally or be limited in its application by
reference to specified exceptions or factors, and
(c) may apply differently according to different factors of a
specified kind.
(5) An order under this section must specify the grounds on which it
is made.
(6) An order under this section takes effect:
(a) in the case of an order made on the grounds referred to in
subsection (3) (d), when the order is served on the person
against whom it is made, or
(b) in any other case, on the date specified in the order in that
regard.
(7) Except in the case of an order that is made on the ground referred
to in subsection (3) (a), the date referred to in subsection (6) (b)
must be a date occurring not less than 14 days after the date on
which the order is served on the person against whom it is made.
(8) A person must not contravene any order in force under this
section.
Maximum penalty: 20 penalty units.
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Schedule 2 Other amendments
2.13 Public Health Act 1991 No 10
[1] Section 16 Notification of test results--Category 3 medical condition
Insert after section 16 (4):
(5) On receiving a report under subsection (1) that appears to the
Director-General to be incomplete or contain incorrect
information, the Director-General may require a medical
practitioner involved in the treatment of the person the subject of
the report to provide any information required to complete the
report or correct the information.
(6) A medical practitioner who is subject to a requirement made
under subsection (1) may comply with the requirement despite
any other Act or law.
[2] Part 6, Division 2, heading
Omit the heading. Insert instead:
Division 2 Tobacco products and sales
[3] Section 54A
Insert after section 54:
54A Prohibited tobacco products
(1) The Minister may, by notice published in the Gazette, declare
that a tobacco product, or a class of tobacco products, specified
in the notice is a prohibited tobacco product or are prohibited
tobacco products.
(2) The Minister must not make a declaration under subsection (1)
unless the Minister is satisfied that the tobacco product or
products, or the smoke of the product or products, has a
distinctive fruity, sweet or confectionery-like character that
might encourage a minor to smoke.
(3) The Minister may, by further notice published in the Gazette,
vary or revoke a notice under this section.
(4) A person who sells a prohibited tobacco product is guilty of an
offence.
Maximum penalty: 50 penalty units.
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Health Legislation Amendment Bill 2007
Other amendments Schedule 2
[4] Section 57A
Insert after section 57:
57A Sale of tobacco products by certain means and from certain
premises prohibited
(1) A person (the vendor) who carries a tobacco product in any
public place for the purpose of the sale of the product by retail to
persons in the place is guilty of an offence.
(2) A person who causes or permits a vendor to carry a tobacco
product in contravention of subsection (1) on premises under the
person's control is guilty of an offence.
(3) If a vendor contravenes subsection (1):
(a) a person who is the employer of the vendor in the person's
capacity as vendor, or
(b) a person who has entered into a contract with the vendor in
the performance of which the vendor engaged in the
activity that constituted the contravention,
is also guilty of an offence.
(4) A person who sells a tobacco product by retail from:
(a) any booth, tent or other temporary enclosure (including a
market stall or stand), whether or not part of the booth, tent
or enclosure is permanent, or
(b) any mobile structure, vehicle or vessel,
is guilty of an offence.
(5) A person who causes or permits a person to sell a tobacco product
in contravention of subsection (4):
(a) on premises under the person's control, or
(b) on premises being used for a concert or other event
organised by the person,
is guilty of an offence.
(6) In this section:
public place means a place or vehicle that the public, or a section
of the public, is entitled to use or that is open to, or is being used
by, the public or a section of the public (whether on payment of
money, by virtue of membership of a club or other body, or
otherwise).
(7) Maximum penalty: 50 penalty units.
Page 21
Health Legislation Amendment Bill 2007
Schedule 2 Other amendments
2.14 Smoke-free Environment Act 2000 No 69
Section 20A
Insert after section 20:
20A Penalty notices
(1) An inspector may serve a penalty notice on a person if it appears
to the inspector that the person has committed an offence against
this Act or the regulations, being an offence prescribed by the
regulations as a penalty notice offence.
(2) A penalty notice is a notice to the effect that, if the person served
does not wish to have the matter determined by a court, the
person can pay, within the time and to the person specified in the
notice, the amount of the penalty prescribed by the regulations for
the offence if dealt with under this section.
(3) A penalty notice may be served personally or by post.
(4) If the amount of penalty prescribed for an alleged offence is paid
under this section, no person is liable to any further proceedings
for the alleged offence.
(5) Payment under this section is not to be regarded as an admission
of liability for the purpose of, and does not in any way affect or
prejudice, any civil claim, action or proceeding arising out of the
same occurrence.
(6) The regulations may:
(a) prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision
creating the offence, and
(b) prescribe the amount of penalty payable for the offence if
dealt with under this section, and
(c) prescribe different amounts of penalties for different
offences or classes of offences.
(7) The amount of a penalty prescribed under this section for an
offence is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
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Health Legislation Amendment Bill 2007
Other amendments Schedule 2
(8) This section does not limit the operation of any other provision
of, or made under, this or any other Act relating to proceedings
that may be taken in respect of offences.
Page 23
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