HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SCHEDULE 5A

HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SCHEDULE 5A

SCHEDULE 5A – Savings and transitional provisions [NSW[#93]

Note : This Schedule is an additional New South Wales provision.

Part 1 - NSW Regulations [NSW[#93]

1 Savings and transitional regulations [NSW[#93]

(1) The NSW regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--

the Health Practitioner Regulation (Adoption of National Law) Act 2009

the Health Practitioner Regulation Amendment Act 2010

the Health Legislation Amendment Act 2012

any Act that amends this Law

(2) Any such provision may, if the NSW 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 on the NSW legislation website, the provision does not operate so as--

(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.

Part 2 - Provisions consequent on enactment of Health Practitioner Regulation Amendment Act 2010 [NSW[#93]

Division 1 - Preliminary [NSW[#93]

2 Definitions [NSW[#93]

In this Part--


"commencement" means commencement of this Part.

Division 2 - Complaints and disciplinary proceedings [NSW[#93]

3 Complaints made but not being dealt with on commencement [NSW[#93]

(1) This clause applies if, immediately before the commencement, a former Board had received but not started dealing with a complaint about a person registered in a health profession by the Board.

(2) From the commencement, the complaint is taken to have been made to the Council established for the profession.

4 Relevant matters still being dealt with on participation day [NSW[#93]

(1) This clause applies if, immediately before the commencement, any of the following referrals, actions, applications or appeals (
"relevant matters" ) had been started but not completed under a repealed Act--

(a) the referral of a matter to an Impaired Registrants Panel;

(b) the referral of the professional performance of a health practitioner for assessment;

(c) the referral of a complaint to a Committee;

(d) the referral of a matter to a Performance Review Panel;

(e) an application for a review;

(f) action by a former Board to suspend, or impose conditions on, a registered health practitioner's registration under public protection provision;

(g) the referral of a complaint or another matter to a Tribunal;

(h) an appeal or application to a Tribunal;

(i) an appeal to the Supreme Court.

(2) From the commencement, the relevant matter is to continue to be dealt with under the repealed Act under which it was made.

(3) After the relevant matter has been decided under the repealed Act, any further proceedings or appeal in relation to the matter the subject of the relevant matter is to be dealt with under this Law as if the relevant matter had been decided under this Law.

(4) For the purposes of this clause, the repealed Act applies--

(a) as if a reference to the former Board were a reference to the Council; and

(b) with any other changes that are necessary or convenient.

(5) The National Board for the health profession must give effect to a decision made in relation to a relevant matter under a repealed Act, and the decision continues to apply, as if it were a decision made under this Law.

(6) In this clause--


"public protection provision" means any of the following provisions--

(a) section 54 of the Chiropractors Act 2001 ;

(b) section 72 of the Dental Practice Act 2001 ;

(c) section 66 of the Medical Practice Act 1992 ;

(d) section 48 of the Nurses and Midwives Act 1991 ;

(e) section 58 of the Optometrists Act 2002 ;

(f) section 54 of the Osteopaths Act 2001 ;

(g) section 67 of the Pharmacy Practice Act 2006 ;

(h) section 55 of the Physiotherapists Act 2001 ;

(i) section 54 of the Podiatrists Act 2003 ;

(j) section 54 of the Psychologists Act 2001 .

5 Complaints about dental prosthetists [NSW[#93]

(1) This clause applies if, immediately before the commencement, the Dental Technicians Registration Board under the Dental Technicians Registration Act 1975 --

(a) had received but not started dealing with a complaint about a dental prosthetist; or

(b) had started but not completed dealing with a complaint about a dental prosthetist.

(2) From the commencement, the complaint is--

(a) taken to have been made to the Dental Council of New South Wales; and

(b) to be dealt with under this Law in the way agreed between the Dental Council of New South Wales and the Commission.

6 Complaints about dental technicians [NSW[#93]

(1) This clause applies if, immediately before the commencement, the Dental Technicians Registration Board under the Dental Technicians Registration Act 1975 --

(a) had received but not started dealing with a complaint about a dental technician; or

(b) had started but not completed dealing with a complaint about a dental technician.

(2) From the commencement, the complaint is taken to be a complaint made to the Commission about the professional conduct of the dental technician.

(3) For the purposes of subclause (2), a code of conduct prescribed under section 10AM of the Public Health Act 1991 is taken to have applied to the dental technician's practice of the profession before the commencement as if the dental technician had not been required to be registered under a health registration Act.

(4) If, after the complaint is dealt with, an order is made in relation to the dental technician that does either or both of the following, the order is taken to be a prohibition order for the purposes of Division 3 of Part 2A of the Public Health Act 1991 --

(a) prohibits the dental technician from providing health services or specified health services for the period specified in the order or permanently;

(b) places conditions on the provision of health services by the dental technician for the period specified in the order or permanently.

7 Existing orders in relation to dental technicians' registration [NSW[#93]

(1) This clause applies if, immediately before the commencement, an order was in force in relation to a dental technician that did either or both of the following--

(a) prohibited the dental technician from providing health services or specified health services for the period specified in the order or permanently;

(b) placed conditions on the provision of health services by the dental technician for the period specified in the order or permanently.

(2) From the commencement, the order is taken to be a prohibition order for the purposes of Division 3 of Part 2A of the Public Health Act 1991 .

Division 3 - Appointments [NSW[#93]

8 Board members [NSW[#93]

(1) A person who, immediately before the commencement, was a member of a former Board for a health profession is taken, after the commencement, to be a member of the Council for that profession as if the person had been appointed under this Law.

(2) The person holds office as a member of the Council until the earlier of the following days--

(a) the day that is 2 years after the commencement;

(b) the day a NSW regulation made for section 41E in relation to the membership of that Council commences;

(c) the day the person otherwise vacates office under this Law.

(3) For the purposes of clause 12(2) of Schedule 5C, the period for which the person held consecutive terms of office as a member of a former Board immediately before the commencement is to be taken into account in calculating the total period for which the person has held office.

(4) However, the person may be appointed for one more term of office under this Law even if the person has held office for consecutive terms of office totalling more than 9 years.

(5) Subclauses (2) and (4) apply despite--

(a) anything in clause 12 of Schedule 5C; or

(b) anything in the member's instrument of appointment as in force immediately before the commencement.

9 President and Deputy President of former Board [NSW[#93]

(1) If a person referred to in clause 8 was, immediately before the commencement, the President of a former Board for a health profession the person is taken, after the commencement, to be the President of the Council for the health profession under this Law.

(2) If a person referred to in clause 8 was, immediately before the commencement, the Deputy President of a former Board for a health profession the person is taken, after the commencement, to be the Deputy President of the Council for the health profession under this Law.

10 Tribunals [NSW[#93]

(1) A person who, immediately before the commencement, was the Chairperson of a Tribunal for a health profession under a repealed Act is taken, after the commencement, to be the Chairperson of the Tribunal for that profession under this Law as if the person had been appointed under this Law.

(2) A person who, immediately before the commencement, was a Deputy Chairperson of a Tribunal for a health profession under a repealed Act is taken, after the commencement, to be the Deputy Chairperson of the Tribunal for that profession under this Law as if the person had been appointed under this Law.

(3) A person who, immediately before the commencement, was a member of a panel of lay persons for a Tribunal for a health profession under a repealed Act is taken, after the commencement, to be a member of a panel of lay persons for the Tribunal for that profession under this Law.

(4) A person to whom this clause applies continues to hold office until the earlier of the following--

(a) the day the person's term of appointment under the repealed Act would have ended if that Act had not been repealed;

(b) the day the person otherwise vacates office under this Law.

11 Professional Standards Committees [NSW[#93]

(1) A person who, immediately before the commencement, was a member of a panel of lay persons for Professional Standards Committees for a health profession under a repealed Act is taken, after the commencement, to be a member of a panel of lay persons for Professional Standards Committees for that profession under this Law.

(2) The person continues to be a member of the panel until the earlier of the following--

(a) the day that is 2 years after the commencement;

(b) the person resigns or is removed from the panel by the Minister.

12 Committees [NSW[#93]

(1) A person who, immediately before the commencement, was a member of a Committee for a health profession is taken, after the commencement, to be a member of the Assessment Committee for that profession under this Law as if the person had been appointed under this Law.

(2) The person continues to hold office until the earlier of the following--

(a) the day that is 2 years after the commencement;

(b) the person otherwise vacates office under this Law.

(3) In this clause--


"Committee" means the following--

(a) the Chiropractic Care Assessment Committee constituted under the Chiropractors Act 2001 ;

(b) the Dental Care Assessment Committee constituted under the Dental Practice Act 2001 ;

(c) the Optometry Care Assessment Committee constituted under the Optometrists Act 2002 ;

(d) the Osteopathy Care Assessment Committee constituted under the Osteopaths Act 2001 ;

(e) the Pharmacy Care Assessment Committee constituted under the Pharmacy Practice Act 2006 ;

(f) the Physiotherapy Standards Advisory Committee constituted under the Physiotherapists Act 2001 ;

(g) the Podiatry Standards Advisory Committee constituted under the Podiatrists Act 2003 ;

(h) the Psychological Care Assessment Committee constituted under the Psychologists Act 2001 .

13 Assessors [NSW[#93]

A person who was, immediately before the commencement, appointed as an assessor under a repealed Act by a former Board constituted for a health profession is taken after the commencement to have been appointed as an assessor under this Law by the Council established for that profession.

Division 4 - Staff [NSW[#93]

14 Definitions [NSW[#93]

In this Division--


"HPCA Division" means the Health Professional Councils Authority Division of the Government Service.


"HPRB Division" means Health Professional Registration Boards Division of the Government Service.


"new employer" means an employer to whom a person's employment is transferred under this Division.


"relevant former board" means the following--

(a) the Dental Board of New South Wales;

(b) the New South Wales Medical Board;

(c) the Pharmacy Board of New South Wales.

15 Staff employed by HPRB Division [NSW[#93]

(1) A person who was, immediately before the commencement, a member of staff of the HPRB Division is, from the commencement, taken to be a member of staff of the HPCA Division employed on the same terms and conditions that applied to the member immediately before the commencement.

(2) Subclause (1) does not prevent the terms and conditions on which a member of staff is employed being varied.

(3) The Minister may, by written order, transfer the employment of a member of staff of the HPCA Division to the employment of the National Agency.

(4) A member of staff may decline to be transferred to the National Agency.

16 Staff employed by relevant former board [NSW[#93]

(1) The Minister may, by written order, transfer the employment of a member of staff of a relevant former board to the employment of the National Agency or the HPCA Division.

(2) A member of staff of a relevant former board may decline to be transferred to the National Agency or the HPCA Division.

17 Continuity of employment [NSW[#93]

The continuity of a transferred employee's employment is taken not to have been broken by the transfer of employment, and service with the Government Service or relevant former board that is continuous service up to the time of transfer is deemed for all purposes to be service with the new employer.

18 Accrued leave entitlements [NSW[#93]

A transferred employee retains any rights to sick leave, annual leave or long service leave accrued or accruing immediately before the transfer of employment (other than accrued leave for which the employee has, on ceasing to be an employee of the Government Service or relevant former board, been paid the monetary value under any other entitlement of the employee).

19 Transfer payments [NSW[#93]

A transferred employee is not entitled to receive any payment or other benefit (including in the nature of severance pay or redundancy or other compensation) merely because the employee ceased to be an employee of the Government Service or relevant former board, or the employee's contract of employment with the Government Service or relevant former board was terminated, as a result of the transfer of employment.

Division 5 - Financial matters [NSW[#93]

20 Education and research account [NSW[#93]

(1) An amount in an Education and Research Account established by a former Board for a health profession under a repealed Act is taken to be transferred to the Education and Research Account established by the Council for that profession under this Law.

(2) An amount that had been appropriated from the Education and Research Account under the repealed Act for or towards a purpose specified under that Act but not paid before the commencement is to be paid by the Council for the health profession under this Law.

21 Education Account for dental technicians [NSW[#93]

(1) As soon as practicable after the commencement, the Dental Council of New South Wales must establish an account named the Dental Technicians Education Account.

(2) The Council must pay into the Education Account the amounts decided in accordance with the NSW regulations.

(3) Money in the Education Account may be expended by the Council only for purposes relating to the education of dental technicians.

(4) An expenditure of money in the Education Account must not be made unless it is authorised by a committee of the Council consisting of 5 members.

(5) The committee must consist of--

(a) at least 2 members who are dental technicians; and

(b) no more than 2 members who are dentists.

(6) An expenditure of money in the Education Account may be authorised by the committee only if 4 of the members of the committee support the expenditure.

(7) All the money in the Education Account must be expended within 3 years after the Account is established.

(8) When all the money in the Education Account has been expended the Council must close the Account.

(9) In this clause--


"dental technician" means a person, other than a dentist or dental prosthetist, who is engaged in the mechanical construction, or renewal or repair, of artificial dentures or restorative dental appliances.

Division 6 - Pharmacy businesses [NSW[#93]

22 Approval, authorisation or consent given under Pharmacy Practice Act 2006 continues [NSW[#93]

(1) An approval, authorisation or consent in force under Division 2 of Part 3 of the Pharmacy Practice Act 2006 immediately before the commencement continues after the commencement as if it had been given under Schedule 5F.

(2) Without limiting subclause (1), the approval, authorisation or consent continues subject to any conditions that applied to it immediately before the commencement.

23 Application for approval, authorisation or consent [NSW[#93]

An application for an approval, authorisation or consent made under Part 3 of the Pharmacy Practice Act 2006 but not decided immediately before the commencement is taken, after the commencement, to be an application made to the Pharmacy Council of New South Wales under Schedule 5F.

24 Appointment of responsible pharmacist continues [NSW[#93]

An appointment under clause 9 of the Pharmacy Practice Regulation 2008 in force immediately before the commencement continues after the commencement as if it had been made under this Law.

25 Register of Pharmacies [NSW[#93]

The Register of Pharmacies kept under the Pharmacy Practice Act 2006 immediately before the commencement is taken, from the commencement, to be the Register of Pharmacies kept by the Pharmacy Council of New South Wales under this Law.

26 Inspectors [NSW[#93]

A person who immediately before the commencement was an inspector under the Pharmacy Practice Act 2006 is taken, from the commencement, to be an authorised person appointed under this Law.

Division 7 - Miscellaneous [NSW[#93]

27 Principal place of practice [NSW[#93]

A person who was, immediately before the commencement, registered as a health practitioner under a repealed Act is taken on the commencement to have declared the address recorded for the person in the Register kept under that Act as being the person's principal place of practice.

28 References to former Boards in conditions [NSW[#93]

(1) This clause applies if--

(a) a registered health practitioner's or student's registration is subject to a condition under section 279; and

(b) the condition includes a reference to a former Board.

(2) From the commencement, the reference to the former Board is taken to be a reference to--

(a) the Council established for the same health profession as the profession for which the former Board was established; or

(b) if the Council gives the registered health practitioner or student written notice that the reference is taken to be a reference to the National Board for the profession, the National Board.

Part 3 - Provision consequent on enactment of Statute Law (Miscellaneous Provisions) Act (No 2) 2010 [NSW[#93]

29 Protected reports [NSW[#93]

The amendment to the definition of
"protected report" in section 138 (1) made by the Statute Law (Miscellaneous Provisions) Act (No 2) 2010 applies to a report the subject of that amendment whether prepared before, on or after the commencement of that amendment.

Part 4 - Provisions consequent on enactment of Health Legislation Amendment Act 2012 [NSW[#93]

30 Definition [NSW[#93]

In this Part--


"amending Act" means the Health Legislation Amendment Act 2012 .

31 Mandatory notifications [NSW[#93]

Section 143A as inserted by the amending Act does not extend to a notification under Division 2 of Part 8 that was made before the commencement of that section.

32 Suspension or conditions of registration to protect public [NSW[#93]

Section 150 (7) as substituted by the amending Act does not apply to a delegation made by a Council before that substitution.

33 Membership of Committees [NSW[#93]

(1) The substitution of section 169B (1) (c) by the amending Act does not affect any Committee that was established before that substitution.

(2) The substitution of section 172B (1) (b) by the amending Act does not affect any Committee that was established before that substitution.

34 Membership of Performance Review Panels [NSW[#93]

The substitution of section 174A (2) (b) by the amending Act does not affect any Performance Review Panel that was established before that substitution.

Part 5 - Provision consequent on enactment of Health Legislation Amendment Act 2013 [NSW[#93]

35 Appointments of acting members and acting President of Councils

The amendment of clause 11 (1) and (3) of Schedule 5C by the Health Legislation Amendment Act 2013 does not affect the appointment of any person holding office as an acting member or an acting President of a Council immediately before the commencement of that amendment.

Part 6 - Provision consequent on enactment of Health Practitioner Regulation Legislation Amendment Act 2014 [NSW[#93]

36 Application of amendment concerning requirement for reinstatement order before registration [NSW[#93]

(1) Without limiting section 287, section 149E, as inserted by the Health Practitioner Regulation Legislation Amendment Act 2014 , extends to persons whose registrations as health practitioners were cancelled, or who were disqualified from being registered as health practitioners, by the Tribunal (or a predecessor of the Tribunal) before the commencement of section 149E.

Note : Section 287 makes provision for cancellations of registration and disqualifications from registration made under corresponding prior Acts to continue to have effect under this Law as if they were decisions made by the responsible tribunal under this Law. As a result, subclause (1) includes such cancellations and disqualifications as well as cancellations and disqualifications under this Law. The subclause also extends to decisions made by the former health practitioner tribunals before their abolition and replacement by the Tribunal.

(2) However, subclause (1) does not affect any application for registration that was made and granted before the commencement of section 149E.

Part 7 - Provision consequent on enactment of Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 [NSW[#93]

37 Application of amendment concerning membership of Committee [NSW[#93]

Any person appointed by the Minister under section 172B (1) (as in force immediately before its amendment by the Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 ) is taken to have been appointed by the relevant Council.

Part 8 - Provision consequent on enactment of Health Practitioner Regulation Amendment Act 2017 [NSW[#93]

38 Setting of inaugural fee by Secretary for paramedicine [NSW[#93]

Until such time as the amount of the complaints element for registration fees payable by paramedics is first set in accordance with section 26A of the Law, the Secretary of the Ministry of Health may instead set the amount.

Part 9 - Provisions consequent on enactment of Health Legislation Amendment Act (No 2) 2018 [NSW[#93]

39 Appeal against reprimand by Council [NSW[#93]

Section 159 (1) (a1) of this Law extends to a reprimand given before the commencement of that paragraph even if the reprimand was not given by way of an order.

40 Tribunal's powers on appeal [NSW[#93]

Section 159C (1) of this Law, as substituted by the Health Legislation Amendment Act (No 2) 2018 , extends to an appeal that has been made but not finally disposed of before that substitution.

41 Effect of suspension [NSW[#93]

Section 176D of this Law, as substituted by the Health Legislation Amendment Act (No 2) 2018 , extends to a suspension that was imposed before that substitution.

Part 10 - Provision consequent on enactment of Criminal Legislation Amendment (Child Sexual Abuse) Act 2018

42 Sexual touching and sexual act include former acts of indecency

The reference in paragraph (b) of the definition of
"sex or violence offence" in section 138 (1) to sexual touching or sexual acts is taken, in a reference to an offence committed before the amendment of that definition by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 , to include a reference to acts of indecency.

Part 11 - Provision consequent on enactment of Health Legislation (Miscellaneous) Amendment Act (No 2) 2022

43 Notice of appeal

The amendment made to this Law, section 161(a) by the Health Legislation (Miscellaneous) Amendment Act (No 2) 2022 does not apply to a decision of which notice other than written notice of the reasons for the decision was given before the commencement of the amendment.