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New South Wales
National Competition Policy Health and
Other Amendments (Commonwealth
Financial Penalties) Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Acts 2
4 Explanatory notes 2
Schedule 1 Amendment of Dentists Act 1989 No 139 3
Schedule 2 Amendment of Dental Practice Act 2001 No 64 6
Schedule 3 Amendment of Optometrists Act 2002 No 30 15
Schedule 4 Amendment of Pharmacy Act 1964 No 48 23
Schedule 5 Amendment of Farm Debt Mediation Act 1994 No 91 25
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, , 2004
New South Wales
National Competition Policy Health and
Other Amendments (Commonwealth
Financial Penalties) Bill 2004
Act No , 2004
An Act to amend various Acts in connection with Commonwealth financial
penalties arising from National Competition Policy reviews.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
National Competition Policy Health and Other Amendments
Clause 1 (Commonwealth Financial Penalties) Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the National Competition Policy Health and Other
Amendments (Commonwealth Financial Penalties) Act 2004.
2 Commencement
(1) This Act commences on the date of assent, except as provided by
subsection (2).
(2) Schedules 13 commence on a day or days to be appointed by
proclamation.
3 Amendment of Acts
The Acts specified in Schedules 15 are amended as set out in those
Schedules.
4 Explanatory notes
The matter appearing under the heading "Explanatory note" in each
of the Schedules does not form part of this Act.
Page 2
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Amendment of Dentists Act 1989 No 139 Schedule 1
Schedule 1 Amendment of Dentists Act 1989 No 139
(Section 3)
[1] Section 3 Definitions
Omit the definition of incorporated practice from section 3 (1).
[2] Section 3 (3)
Insert after section 3 (2):
(3) Notes included in this Act do not form part of this Act.
[3] Section 5 Professional misconduct
Insert after section 5 (1) (a):
(a1) engaging in overservicing as provided by subsection
(2), and
[4] Section 5 (1) (d)(f)
Omit the paragraphs.
[5] Section 5 (2)
Omit section 5 (2)(6). Insert instead:
(2) A dentist engages in overservicing if the dentist, in the course
of professional practice:
(a) provides a service in circumstances in which provision
of the service is unnecessary, not reasonably required or
excessive, or
(b) engages in conduct that is prescribed by the regulations
as constituting overservicing.
[6] Section 28 Application of Part to incorporated practices
Omit the section.
Page 3
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Schedule 1 Amendment of Dentists Act 1989 No 139
[7] Sections 53 and 54
Omit the sections. Insert instead:
53 Ownership of dental practices
Nothing in this Act prevents a registered dentist from
practising dentistry as the director or employee of any
corporation or in the course of employment by, or in
association with, any body or person.
Note. Under section 137D of the Dental Practice Act 2001 (which
applies as a provision of this Act by virtue of section 54) a dentist can be
prohibited from operating a business that provides dental services.
54 Prohibition against directing or inciting misconduct
The provisions of Part 11A (Prohibition against directing or
inciting misconduct) of the Dental Practice Act 2001 have
effect as provisions of this Act, subject to any necessary
modification.
Note. The general effect of Part 11A of the Dental Practice Act 2001 is
as follows:
(a) to make it an offence for a person who employs a registered
dentist to direct or incite the dentist to engage in conduct in the
course of professional practice that would constitute
unsatisfactory professional conduct or professional misconduct,
(b) to enable the Director-General to prohibit persons who have
been convicted of or made the subject of a criminal finding for
such an offence from operating a business that provides dental
services. (Such a prohibition has an extended operation. For
example, it will prohibit the person from having a management
role or substantial interest in a corporation that operates such a
business or from having a substantial interest in a trust under
which such a business is operated.)
[8] Section 67 Regulations
Omit "society, council, body or corporation referred to in section 5 (4) (c),
(d), (e) or (f)" from section 67 (2) (c).
Insert instead "person or body".
[9] Section 67 (2) (l) and (m)
Omit the paragraphs.
Page 4
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Amendment of Dentists Act 1989 No 139 Schedule 1
[10] Schedule 4 Savings, transitional and other provisions
Insert ", and the National Competition Policy Health and Other
Amendments (Commonwealth Financial Penalties) Act 2004 to the extent
that it amends this Act" after "this Act" in clause 15 (1).
[11] Schedule 4, clause 15 (2)
Omit "this Act". Insert instead "the Act concerned".
Explanatory note
Section 5 of the Dentists Act 1989 (the Principal Act) defines professional
misconduct in relation to a dentist. Under section 5 (1) (f), such conduct includes
practising dentistry for fee, salary or other reward in the course of employment by, or
in association with, any person other than a registered dentist or an entity specified in
section 5 (4) (which includes a body or corporation approved by the Dental Board).
Schedule 1 [4] removes this restriction on the practice of dentistry and makes
consequential amendments. Schedule 1 [8] makes a consequential amendment.
Section 53 of the Principal Act allows registered dentists to practise dentistry as the
director or employee of a corporation only if the corporation is an incorporated practice
(that is, if the corporation is controlled by one or more registered dentists, and all the
directors and shareholders of the corporation are registered dentists or family members
of the registered dentists concerned). Schedule 1 [7] removes this restriction on the
practice of dentistry and makes a consequential amendment. Schedule 1 [1], [6] and
[9] make consequential amendments.
Schedule 1 [7] also inserts new sections 53 and 54 into the Principal Act. New section
53 makes it clear that nothing in the Act prevents a registered dentist from practising
dentistry as the director or employee of any corporation or in the course of employment
by, or in association with, any body or person. New section 54 incorporates into the
Principal Act, subject to any necessary modification, the provisions of Part 11A of the
Dental Practice Act 2001 (which is yet to be commenced) that are proposed to be
inserted by Schedule 2 [7].
Schedule 1 [2] inserts a formal provision relating to notes.
Schedule 1 [3] includes a dentist's engaging in overservicing in the definition of
professional misconduct in section 5 of the Principal Act.
Schedule 1 [5] makes amendments consequential on the amendments made by
Schedule 1 [3] and [4].
Schedule 1 [10] provides for the making of savings and transitional regulations as a
consequence of the proposed amendments to the Principal Act. Schedule 1 [11]
makes a consequential amendment.
Page 5
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Schedule 2 Amendment of Dental Practice Act 2001 No 64
Schedule 2 Amendment of Dental Practice Act 2001
No 64
(Section 3)
[1] Section 4 Definitions
Omit the definition of incorporated practice.
[2] Section 34
Omit the section. Insert instead:
34 Ownership of dental practices
Nothing in this Act (except section 137D) prevents a
registered dentist from practising dentistry as the director or
employee of any corporation or in the course of employment
by, or in association with, any body or person.
[3] Section 41 Meaning of "unsatisfactory professional conduct"--
dentists
Insert after section 41 (1) (a):
(a1) engaging in overservicing as provided by subsection
(2),
[4] Section 41 (1) (c), (f) and (g)
Omit the paragraphs.
[5] Section 41 (2)
Omit the subsection and note. Insert instead:
(2) A dentist engages in overservicing if the dentist, in the course
of professional practice:
(a) provides a service in circumstances in which provision
of the service is unnecessary, not reasonably required or
excessive, or
(b) engages in conduct that is prescribed by the regulations
as constituting overservicing.
[6] Section 43 Application of Part to incorporated practices
Omit the section.
Page 6
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Amendment of Dental Practice Act 2001 No 64 Schedule 2
[7] Part 11A
Insert after Part 11:
Part 11A Prohibition against directing or inciting
misconduct
137A Prohibition against directing or inciting misconduct
(1) A person (the employer) who employs a registered dentist
must not direct or incite the dentist to engage in conduct in the
course of professional practice that would constitute
unsatisfactory professional conduct or professional
misconduct.
Maximum penalty:
(a) in the case of a corporation, 800 penalty units for a first
offence or 1600 penalty units for a second or
subsequent offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
(2) For the purposes of this section, any actions of an agent or
employee of the employer are taken to be actions of the
employer unless the employer establishes:
(a) that the employer had no knowledge of those actions,
and
(b) that the employer could not, by the exercise of due
diligence, have prevented those actions.
(3) If a person is convicted of or made the subject of a criminal
finding for an offence against this section in respect of the
actions of an agent or employee of the person, the agent or
employee is for the purposes of this Part taken to have been
convicted of or made the subject of a criminal finding for the
offence also.
(4) When a court convicts or makes a criminal finding against a
person for an offence against this section, the registrar or
other proper officer of the court must notify the Director-
General in writing of the conviction or criminal finding.
(5) This section does not apply in respect of the employment of a
dentist by any of the following:
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National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Schedule 2 Amendment of Dental Practice Act 2001 No 64
(a) a public health organisation within the meaning of the
Health Services Act 1997,
(b) a private hospital or day procedure centre within the
meaning of the Private Hospitals and Day Procedure
Centres Act 1988,
(c) a nursing home within the meaning of the Nursing
Homes Act 1988.
137B Extended concept of employment
(1) When a registered dentist engages in the practice of dentistry
in the course of the carrying on of a business, any person who
owns, manages, controls, conducts or operates that business is
for the purposes of this Part taken to employ the dentist (in
addition to any person who actually employs the dentist).
(2) When a registered dentist is employed by a corporation, each
of the following persons is for the purposes of this Part also
considered to be the employer of the dentist (in addition to the
corporation):
(a) a person who is a director, secretary or executive officer
(as defined in the Corporations Act 2001 of the
Commonwealth) of the corporation or is concerned in
the management of the corporation,
(b) any other employee of the corporation in accordance
with whose directions the dentist is required or
expected to act.
137C Extended concept of carrying on business
(1) If a dentist engaged in the practice of dentistry is provided, in
the course of the carrying on of a business, with services that
facilitate that practice and the operator of the business is
entitled, in connection with the provision of those services, to
a share or interest in the profits or income arising from the
practice of dentistry by the dentist:
(a) that business is taken for the purposes of this Part to be
a business that provides the dental services that are
provided by the dentist in the course of that practice,
and
(b) the dentist is taken for the purposes of this Part to be
engaged in the practice of dentistry in the course of the
carrying on of that business.
Page 8
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Amendment of Dental Practice Act 2001 No 64 Schedule 2
(2) Subsection (1) does not apply in respect of the practice of
dentistry by a dentist in such circumstances as may be
prescribed by the regulations as exempt from that subsection.
(3) For the purposes of this Part, a person is considered to operate
a business if the person:
(a) owns, manages, controls, conducts or operates the
business, or
(b) has (within the meaning of section 137G) a
management role or substantial interest in a corporation
that operates the business or a substantial interest in a
trust under which the business is operated.
137D Convicted offenders may be prohibited from carrying on
business
(1) The Director-General may, by notice in writing given to a
person who has been convicted of or made the subject of a
criminal finding for an offence against this Part, prohibit the
person from operating a business that provides dental
services.
(2) The prohibition may be expressed to be:
(a) for a fixed period (in which case the prohibition
remains in force only for that fixed period), or
(b) for an unlimited period subject to an entitlement to
apply after a specified time for the lifting of the
prohibition (in which case the prohibition remains in
force until it is lifted).
(3) A prohibition may not be imposed under this section unless
the Director-General is of the opinion that the person is not a
fit and proper person to operate a business that provides dental
services. The Director-General is entitled to presume, in the
absence of evidence to the contrary, that a person who has
been convicted of or made the subject of a criminal finding for
an offence against this Part on 2 or more occasions in any
period of 10 years is not a fit and proper person to operate
such a business.
(4) A prohibition under this section may be limited in its
operation in either or both of the following ways:
Page 9
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Schedule 2 Amendment of Dental Practice Act 2001 No 64
(a) it may be limited to specified premises, but only where
the person concerned operates a business that provides
dental services at those premises and at other premises,
(b) it may be limited to premises within a specified area.
(5) If a prohibition under this section is subject to an entitlement
to apply after a specified time for the prohibition to be lifted,
such an application may be made to the Director-General after
that time. The Director-General may lift the prohibition or
confirm the prohibition and set a further period after which an
application for the prohibition to be lifted can be made under
this subsection.
137E Offence of operating business while prohibited
(1) A person who in contravention of a prohibition under this Part
operates a business that provides dental services is guilty of an
offence.
Maximum penalty:
(a) in the case of a corporation, 800 penalty units for a first
offence or 1600 penalty units for a second or
subsequent offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
(2) If a continuing state of affairs is created by an offence against
this section the offender is liable to a maximum penalty of:
(a) 200 penalty units in the case of a corporation, or
(b) 50 penalty units in any other case,
in respect of each day on which that offence continues, in
addition to the penalty specified in subsection (1).
(3) If dental services are provided on premises on which a
business is carried on, it is to be presumed for the purposes of
this section, unless the contrary is established, that the
business provides those dental services.
137F Effect of appeal against conviction
A prohibition under this Part has no effect while an appeal is
pending against the conviction or criminal finding for the
offence on which the prohibition is based.
Page 10
National Competition Policy Health and Other Amendments
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Amendment of Dental Practice Act 2001 No 64 Schedule 2
137G Business interests--effect of prohibition
(1) When a corporation or the trustee of a trust is the subject of a
prohibition under this Part in connection with the operation of
a business operated by the corporation or under the trust:
(a) each person who has a management role or substantial
interest in the corporation or a substantial interest in the
trust is for the purposes of this Part taken to be the
subject of that prohibition also, and
(b) each corporation in which a person referred to in
paragraph (a) has a management role or substantial
interest is for the purposes of this Part taken to be the
subject of that prohibition also (whether or not the
corporation was in existence at the time of the relevant
offence), and
(c) the trustee and any manager of a trust in which a person
referred to in paragraph (a) has a substantial interest are
for the purposes of this Part taken to be the subject of
that prohibition also (whether or not the trust was in
existence at the time of the relevant offence).
(2) A person is considered to have a management role or
substantial interest in a corporation if:
(a) the person is a director, secretary or executive officer
(as defined in the Corporations Act 2001 of the
Commonwealth) of the corporation, or
(b) the person is entitled to more than 10% of the issued
share capital of the corporation (with the shares to
which a person is entitled including shares in which the
person or an associate of the person has a relevant
interest within the meaning of the Corporations
Act 2001 of the Commonwealth).
(3) A person is considered to have a substantial interest in a trust
if the person (whether or not as the trustee of another trust) is
the beneficiary in respect of more than 10% of the value of the
interests in the trust.
(4) The regulations may create exceptions to this section.
Page 11
National Competition Policy Health and Other Amendments
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Schedule 2 Amendment of Dental Practice Act 2001 No 64
137H Power to require information from convicted persons and
others
(1) When a corporation or the trustee of a trust is convicted of or
made the subject of a criminal finding for an offence against
this Part in connection with the operation of a business
operated by the corporation or under the trust, the Director-
General may require certain persons to provide specified
information to the Director-General, as provided by this
section.
(2) The corporation or trustee may be required to provide
information that the Director-General may reasonably require
to ascertain the identity of each person who has a management
role or substantial interest in the corporation or a substantial
interest in the trust.
(3) A person whom the Director-General reasonably believes has
a management role or substantial interest in the corporation or
a substantial interest in the trust may be required to provide
information that the Director-General may reasonably require
to ascertain:
(a) the identity of each corporation in which that person has
a management role or substantial interest, or
(b) the identity of the trustee and any manager of a trust in
which that person has a substantial interest.
(4) A requirement to provide information is to be imposed by a
direction in writing served on the person, corporation or
trustee concerned. The direction must specify a period of not
less than 7 days as the period within which the required
information must be provided.
(5) A person who fails without reasonable excuse to comply with
a requirement under this section is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation, 800 penalty units for a first
offence or 1600 penalty units for a second or
subsequent offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
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Amendment of Dental Practice Act 2001 No 64 Schedule 2
(6) A person who in purported compliance with a requirement
under this section provides information that is false or
misleading in a material particular is guilty of an offence
unless the person satisfies the court that the person did not
know and could not reasonably be expected to have known
that the information was false or misleading.
Maximum penalty:
(a) in the case of a corporation, 800 penalty units for a first
offence or 1600 penalty units for a second or
subsequent offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
137I Evidentiary certificate
(1) The Director-General may issue a certificate to the effect that
a person specified in the certificate is or was prohibited under
this Part from operating a business that provides dental
services during a period specified in the certificate.
(2) Such a certificate is evidence of the matters certified.
(3) A certificate purporting to be a certificate issued by the
Director-General under this section is presumed to have been
so issued unless the contrary is established.
[8] Section 139 Approval for employment of dentists by non-dentists
Omit the section.
[9] Section 141 Carrying on practice of deceased dentist
Omit the section.
[10] Section 142 Civil liability of directors of incorporated practices
Omit the section.
[11] Section 158 Regulations
Omit "referred to in section 41 (2) (d)(g)" from section 158 (2) (n).
[12] Section 158 (2) (v)
Omit the paragraph.
Page 13
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Schedule 2 Amendment of Dental Practice Act 2001 No 64
[13] Schedule 7 Savings and transitional provisions
Insert at the end of clause 2 (1):
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Act 2004, to the extent
that it amends this Act
Explanatory note
The Dental Practice Act 2001 (the Principal Act) was enacted to replace the existing
Dentists Act 1989 as a result of a National Competition Policy review of that Act.
Section 41 of the Principal Act defines unsatisfactory professional conduct in
relation to a dentist. Under section 41 (1) (c) of that Act (which continues a restriction
under the existing Act), such conduct includes practising dentistry for remuneration in
the course of employment by, or in association with, a non-dentist (being any person
or body who is not a registered dentist other than certain specified entities, or persons
or bodies approved by the Dental Board). Schedule 2 [4] removes this restriction on
the practice of dentistry and makes consequential amendments. Schedule 2 [8] and
[11] also make consequential amendments.
Section 34 of the Principal Act (also continuing an existing provision) allows registered
dentists to practise dentistry as the director or employee of a corporation only if the
corporation is an incorporated practice (that is, if the corporation is controlled by one or
more registered dentists, and all the directors and shareholders of the corporation are
registered dentists or family members of the registered dentists concerned). Schedule
2 [2] removes this restriction on the practice of dentistry. Schedule 2 [1], [6], [10] and
[12] make consequential amendments.
Schedule 2 [2] also inserts a new section 34 into the Principal Act to make it clear that
nothing in the Act prevents a registered dentist from practising dentistry as the director
or employee of any corporation or in the course of employment by, or in association
with, any body or person.
Schedule 2 [7] inserts a new Part 11A (sections 137A137I) into the Principal Act.
Under proposed section 137A, it will be an offence for a person who employs a
registered dentist to direct or incite the dentist to engage in conduct in the course of
professional practice that would constitute unsatisfactory professional conduct (which,
under the amendment proposed to be made by Schedule 2 [3], will include
overservicing) or professional misconduct. Under proposed section 137D, the Director-
General of the Department of Health will be able to prohibit persons who have been
convicted of or made the subject of a criminal finding for such an offence from operating
a business that provides dental services. Such a prohibition has an extended
operation. For example, it will prohibit the person from having a management role or
substantial interest in a corporation that operates such a business or from having a
substantial interest in a trust under which such a business is operated.
Schedule 2 [9] makes an amendment consequential on the amendments made by
Schedule 2 [2] and [4].
Schedule 2 [5] substitutes a provision consequential on the amendments made by
Schedule 2 [3] and [4].
Schedule 2 [13] provides for the making of savings and transitional regulations as a
consequence of the proposed amendments to the Principal Act.
Page 14
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Bill 2004
Amendment of Optometrists Act 2002 No 30 Schedule 3
Schedule 3 Amendment of Optometrists Act 2002
No 30
(Section 3)
[1] Section 23
Omit the section. Insert instead:
23 Ownership of optometry practices
Nothing in this Act (except section 120D) prevents a
registered optometrist from practising optometry as the
director or employee of any corporation or in the course of
employment by, or in association with, any body or person.
[2] Section 29 Meaning of "unsatisfactory professional conduct"
Omit section 29 (1) (g) and (h).
[3] Section 29 (3)
Omit the subsection.
[4] Part 10A
Insert after Part 10:
Part 10A Prohibition against directing or inciting
misconduct
120A Prohibition against directing or inciting misconduct
(1) A person (the employer) who employs a registered
optometrist must not direct or incite the optometrist to engage
in conduct in the course of professional practice that would
constitute unsatisfactory professional conduct or professional
misconduct.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first
offence or 800 penalty units for a second or subsequent
offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
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Schedule 3 Amendment of Optometrists Act 2002 No 30
(2) For the purposes of this section, any actions of an agent or
employee of the employer are taken to be actions of the
employer unless the employer establishes:
(a) that the employer had no knowledge of those actions,
and
(b) that the employer could not, by the exercise of due
diligence, have prevented those actions.
(3) If a person is convicted of or made the subject of a criminal
finding for an offence against this section in respect of the
actions of an agent or employee of the person, the agent or
employee is for the purposes of this Part taken to have been
convicted of or made the subject of a criminal finding for the
offence also.
(4) When a court convicts or makes a criminal finding against a
person for an offence against this section, the registrar or
other proper officer of the court must notify the Director-
General in writing of the conviction or criminal finding.
(5) This section does not apply in respect of the employment of
an optometrist by any of the following:
(a) a public health organisation within the meaning of the
Health Services Act 1997,
(b) a private hospital or day procedure centre within the
meaning of the Private Hospitals and Day Procedure
Centres Act 1988,
(c) a nursing home within the meaning of the Nursing
Homes Act 1988.
120B Extended concept of employment
(1) When a registered optometrist engages in the practice of
optometry in the course of the carrying on of a business, any
person who owns, manages, controls, conducts or operates
that business is for the purposes of this Part taken to employ
the optometrist (in addition to any person who actually
employs the optometrist).
(2) When a registered optometrist is employed by a corporation,
each of the following persons is for the purposes of this Part
also considered to be the employer of the optometrist (in
addition to the corporation):
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Amendment of Optometrists Act 2002 No 30 Schedule 3
(a) a person who is a director, secretary or executive officer
(as defined in the Corporations Act 2001 of the
Commonwealth) of the corporation or is concerned in
the management of the corporation,
(b) any other employee of the corporation in accordance
with whose directions the optometrist is required or
expected to act.
120C Extended concept of carrying on business
(1) If an optometrist engaged in the practice of optometry is
provided, in the course of the carrying on of a business, with
services that facilitate that practice and the operator of the
business is entitled, in connection with the provision of those
services, to a share or interest in the profits or income arising
from the practice of optometry by the optometrist:
(a) that business is taken for the purposes of this Part to be
a business that provides the optometrical services that
are provided by the optometrist in the course of that
practice, and
(b) the optometrist is taken for the purposes of this Part to
be engaged in the practice of optometry in the course of
the carrying on of that business.
(2) Subsection (1) does not apply in respect of the practice of
optometry by an optometrist in such circumstances as may be
prescribed by the regulations as exempt from that subsection.
(3) For the purposes of this Part, a person is considered to operate
a business if the person:
(a) owns, manages, controls, conducts or operates the
business, or
(b) has (within the meaning of section 120G) a
management role or substantial interest in a corporation
that operates the business or a substantial interest in a
trust under which the business is operated.
120D Convicted offenders may be prohibited from carrying on
business
(1) The Director-General may, by notice in writing given to a
person who has been convicted of or made the subject of a
criminal finding for an offence against this Part, prohibit the
person from operating a business that provides optometrical
services.
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Schedule 3 Amendment of Optometrists Act 2002 No 30
(2) The prohibition may be expressed to be:
(a) for a fixed period (in which case the prohibition
remains in force only for that fixed period), or
(b) for an unlimited period subject to an entitlement to
apply after a specified time for the lifting of the
prohibition (in which case the prohibition remains in
force until it is lifted).
(3) A prohibition may not be imposed under this section unless
the Director-General is of the opinion that the person is not a
fit and proper person to operate a business that provides
optometrical services. The Director-General is entitled to
presume, in the absence of evidence to the contrary, that a
person who has been convicted of or made the subject of a
criminal finding for an offence against this Part on 2 or more
occasions in any period of 10 years is not a fit and proper
person to operate such a business.
(4) A prohibition under this section may be limited in its
operation in either or both of the following ways:
(a) it may be limited to specified premises, but only where
the person concerned operates a business that provides
optometrical services at those premises and at other
premises,
(b) it may be limited to premises within a specified area.
(5) If a prohibition under this section is subject to an entitlement
to apply after a specified time for the prohibition to be lifted,
such an application may be made to the Director-General after
that time. The Director-General may lift the prohibition or
confirm the prohibition and set a further period after which an
application for the prohibition to be lifted can be made under
this subsection.
120E Offence of operating business while prohibited
(1) A person who in contravention of a prohibition under this Part
operates a business that provides optometrical services is
guilty of an offence.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first
offence or 800 penalty units for a second or subsequent
offence, or
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(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
(2) If a continuing state of affairs is created by an offence against
this section the offender is liable to a maximum penalty of:
(a) 100 penalty units in the case of a corporation, or
(b) 50 penalty units in any other case,
in respect of each day on which that offence continues, in
addition to the penalty specified in subsection (1).
(3) If optometrical services are provided on premises on which a
business is carried on, it is to be presumed for the purposes of
this section, unless the contrary is established, that the
business provides those optometrical services.
120F Effect of appeal against conviction
A prohibition under this Part has no effect while an appeal is
pending against the conviction or criminal finding for the
offence on which the prohibition is based.
120G Business interests--effect of prohibition
(1) When a corporation or the trustee of a trust is the subject of a
prohibition under this Part in connection with the operation of
a business operated by the corporation or under the trust:
(a) each person who has a management role or substantial
interest in the corporation or a substantial interest in the
trust is for the purposes of this Part taken to be the
subject of that prohibition also, and
(b) each corporation in which a person referred to in
paragraph (a) has a management role or substantial
interest is for the purposes of this Part taken to be the
subject of that prohibition also (whether or not the
corporation was in existence at the time of the relevant
offence), and
(c) the trustee and any manager of a trust in which a person
referred to in paragraph (a) has a substantial interest are
for the purposes of this Part taken to be the subject of
that prohibition also (whether or not the trust was in
existence at the time of the relevant offence).
(2) A person is considered to have a management role or
substantial interest in a corporation if:
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(a) the person is a director, secretary or executive officer
(as defined in the Corporations Act 2001 of the
Commonwealth) of the corporation, or
(b) the person is entitled to more than 10% of the issued
share capital of the corporation (with the shares to
which a person is entitled including shares in which the
person or an associate of the person has a relevant
interest within the meaning of the Corporations
Act 2001 of the Commonwealth).
(3) A person is considered to have a substantial interest in a trust
if the person (whether or not as the trustee of another trust) is
the beneficiary in respect of more than 10% of the value of the
interests in the trust.
(4) The regulations may create exceptions to this section.
120H Power to require information from convicted persons and
others
(1) When a corporation or the trustee of a trust is convicted of or
made the subject of a criminal finding for an offence against
this Part in connection with the operation of a business
operated by the corporation or under the trust, the Director-
General may require certain persons to provide specified
information to the Director-General, as provided by this
section.
(2) The corporation or trustee may be required to provide
information that the Director-General may reasonably require
to ascertain the identity of each person who has a management
role or substantial interest in the corporation or a substantial
interest in the trust.
(3) A person whom the Director-General reasonably believes has
a management role or substantial interest in the corporation or
a substantial interest in the trust may be required to provide
information that the Director-General may reasonably require
to ascertain:
(a) the identity of each corporation in which that person has
a management role or substantial interest, or
(b) the identity of the trustee and any manager of a trust in
which that person has a substantial interest.
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(4) A requirement to provide information is to be imposed by a
direction in writing served on the person, corporation or
trustee concerned. The direction must specify a period of not
less than 7 days as the period within which the required
information must be provided.
(5) A person who fails without reasonable excuse to comply with
a requirement under this section is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first
offence or 800 penalty units for a second or subsequent
offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
(6) A person who in purported compliance with a requirement
under this section provides information that is false or
misleading in a material particular is guilty of an offence
unless the person satisfies the court that the person did not
know and could not reasonably be expected to have known
that the information was false or misleading.
Maximum penalty:
(a) in the case of a corporation, 400 penalty units for a first
offence or 800 penalty units for a second or subsequent
offence, or
(b) in any other case, 200 penalty units for a first offence or
400 penalty units for a second or subsequent offence.
120I Evidentiary certificate
(1) The Director-General may issue a certificate to the effect that
a person specified in the certificate is or was prohibited under
this Part from operating a business that provides optometrical
services during a period specified in the certificate.
(2) Such a certificate is evidence of the matters certified.
(3) A certificate purporting to be a certificate issued by the
Director-General under this section is presumed to have been
so issued unless the contrary is established.
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Schedule 3 Amendment of Optometrists Act 2002 No 30
[5] Schedule 7 Savings and transitional provisions
Insert at the end of clause 2 (1):
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Act 2004, to the extent
that it amends this Act
Explanatory note
The Optometrists Act 2002 (the Principal Act) was enacted to replace the existing
Optometrists Act 1930 as a result of a National Competition Policy review of that Act.
Section 23 of the Principal Act (continuing a similar restriction under the existing Act)
restricts the carrying on of the business of the practice of optometry to registered
optometrists, incorporated practices, existing optometry businesses, persons
approved by the Minister for Health, persons carrying on the business of a deceased
optometrist for a limited period and others as permitted by the regulations. Schedule
3 [1] removes this restriction on the practice of optometry.
Schedule 3 [1] also inserts a new section 23 into the Principal Act to make it clear that
nothing in the Act prevents a registered optometrist from practising optometry as the
director or employee of any corporation or in the course of employment by, or in
association with, any body or person.
Schedule 3 [4] inserts a new Part 10A (sections 120A120I) into the Principal Act.
Under proposed section 120A, it will be an offence for a person who employs a
registered optometrist to direct or incite the optometrist to engage in conduct in the
course of professional practice that would constitute unsatisfactory professional
conduct (which, under the current definition of that term in the Principal Act, includes
overservicing) or professional misconduct. Under proposed section 120D, the Director-
General of the Department of Health will be able to prohibit persons who have been
convicted of or made the subject of a criminal finding for such an offence from operating
a business that provides optometrical services. Such a prohibition has an extended
operation. For example, it will prohibit the person from having a management role or
substantial interest in a corporation that operates such a business or from having a
substantial interest in a trust under which such a business is operated.
Schedule 3 [2] and [3] make amendments consequential on the amendments made
by Schedule 3 [1].
Schedule 3 [5] provides for the making of savings and transitional regulations as a
consequence of the proposed amendments to the Principal Act.
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Amendment of Pharmacy Act 1964 No 48 Schedule 4
Schedule 4 Amendment of Pharmacy Act 1964 No 48
(Section 3)
[1] Section 26 Restrictions on carrying on business of a pharmacist
in pharmacies
Omit "3" wherever occurring in section 26 (1) and (2). Insert instead "5".
[2] Section 27A Exemptions for certain friendly societies
Insert after section 27A (5):
(6) A friendly society to which subclause (1) or (2) applies must
not:
(a) carry on the business of a pharmacist in more than 6
pharmacies, or
(b) have a direct or indirect pecuniary interest in the
business of a pharmacist carried on in more than 6
pharmacies, or
(c) carry on such a business in one or more pharmacies and
have such an interest in one or more pharmacies so that
the total number of pharmacies involved exceeds 6.
(7) A friendly society that contravenes subsection (6) is guilty of
an offence against this Act.
[3] Section 40
Insert after section 39:
40 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
National Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Act 2004, to the extent
that it amends this Act
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
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(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
Explanatory note
Schedule 4 [1] amends section 26 of the Pharmacy Act 1964 (the Principal Act) to
increase (from 3 to 5) the number of pharmacy businesses that a pharmacist may carry
on or in which the pharmacist may have a direct or indirect pecuniary interest, and the
number of partnerships carrying on such a business or having such a pecuniary interest
of which a pharmacist may be a member.
Section 27A of the Principal Act allows certain friendly societies to carry on pharmacy
businesses. Schedule 4 [2] amends section 27A of the Principal Act to limit to 6 the
number of pharmacy businesses that such friendly societies may carry on or in which
they may have a direct or indirect pecuniary interest.
Schedule 4 [3] provides for the making of savings and transitional regulations as a
consequence of the proposed amendments to the Principal Act.
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Amendment of Farm Debt Mediation Act 1994 No 91 Schedule 5
Schedule 5 Amendment of Farm Debt Mediation
Act 1994 No 91
(Section 3)
[1] Section 11 Certificate that Act does not apply to farm mortgage
Omit section 11 (3) and the note at the end of that subsection.
[2] Section 29A Reviews by Administrative Decisions Tribunal
Omit the section.
[3] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1 (1):
the National Competition Policy Health and Other
Amendments (Commonwealth Financial Penalties) Act 2004,
to the extent that it amends this Act
[4] Schedule 1, clause 8
Insert after clause 7:
8 Application of 2004 amending Act
(1) In this clause, the 2004 amending Act means the National
Competition Policy Health and Other Amendments
(Commonwealth Financial Penalties) Act 2004.
(2) Section 11 (3) continues to apply to the farmer and the
creditor under a farm mortgage in respect of which the
Authority had, before the repeal of that subsection by the
2004 amending Act, failed to issue a certificate under section
11 as if that subsection had not been repealed.
(3) An application to the Administrative Decisions Tribunal that
had been made under section 29A before the repeal of that
section by the 2004 amending Act is to be heard and
determined, and the decision of the Administrative Decisions
Tribunal on the application is to be given effect to, as if that
section had not been repealed.
Explanatory note
The Farm Debt Mediation Act 1994 prohibits the creditor under a farm debt from taking
enforcement action in relation to the associated farm mortgage without first giving the
farmer an opportunity to seek mediation of the matters giving rise to the creditor's right
to take such action.
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Schedule 5 Amendment of Farm Debt Mediation Act 1994 No 91
Section 11 of the Act allows the Rural Assistance Authority to issue a certificate to the
creditor to the effect that the Act does not apply to the farm mortgage. Section 11 (3)
provides that, if the Authority fails to issue such a certificate because it is not satisfied
that the creditor has attempted to mediate in good faith, the creditor is prohibited from
attempting further mediation, and therefore from enforcing the farm debt, for the next
12 months. Schedule 5 [1] omits section 11 (3). Proposed clause 8 (2) of Schedule 1
(to be inserted by Schedule 5 [4]) continues the effect of section 11 (3) with respect to
past decisions of the Authority to refuse a certificate.
Section 29A of the Act confers on the farmer and the creditor a right to apply to the
Administrative Decisions Tribunal for a review of a decision by the Rural Assistance
Authority with respect to a certificate under section 9B or 11 of the Act and on mediators
the right to apply to the Tribunal for a review of the Authority's decision to refuse or
withdraw accreditation under section 12 of the Act. Schedule 5 [2] omits section 29A.
Proposed clause 8 (3) of Schedule 1 (to be inserted by Schedule 5 [4]) allows existing
applications to the Tribunal to be dealt with, and the Tribunal's decision on such an
application to be given effect to.
Schedule 5 [3] amends clause 1 of Schedule 1 to the Act to enable the regulations
under the Act to make further provision of a savings or transitional nature.
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