HEALTH PRACTITIONER REGULATION NATIONAL LAW (VICTORIA) ACT 2009 (NO. 79 OF 2009) - SCHEDULE
HEALTH PRACTITIONER REGULATION NATIONAL LAW (VICTORIA) ACT 2009 (NO. 79 OF 2009) - SCHEDULE
Schedule
Schedule Health Practitioner Regulation National Law
Part 1 Preliminary
1 Short title
This Law may be cited as the Health Practitioner Regulation National Law.
2 Commencement
This Law commences in a participating jurisdiction as provided by the Act of
that jurisdiction that applies this Law as a law of that jurisdiction.
3 Objectives and guiding principles
App.
(1) The object of this Law is to establish a
national registration and accreditation scheme for—
(a) the regulation of health
practitioners; and
(b) the registration of students
undertaking—
(i) programs of
study that provide a qualification for registration in a health profession; or
(ii) clinical
training in a health profession.
(2) The objectives of the national registration
and accreditation scheme are—
(a) to provide for the protection of
the public by ensuring that only health practitioners who are suitably trained
and qualified to practise in a competent and ethical manner are registered;
and
(b) to facilitate workforce mobility
across Australia by reducing the administrative burden for health
practitioners wishing to move between participating jurisdictions or to
practise in more than one participating jurisdiction; and
(c) to facilitate the provision of
high quality education and training of health practitioners; and
(d) to facilitate the rigorous and
responsive assessment of overseas-trained health practitioners; and
(e) to facilitate access to services
provided by health practitioners in accordance with the public interest; and
(f) to enable the continuous
development of a flexible, responsive and sustainable Australian health
workforce and to enable innovation in the education of, and service delivery
by, health practitioners.
(3) The guiding principles of the national
registration and accreditation scheme are as follows—
(a) the scheme is to operate in a
transparent, accountable, efficient, effective and fair way;
(b) fees required to be paid under
the scheme are to be reasonable having regard to the efficient and effective
operation of the scheme;
(c) restrictions on the practice of
a health profession are to be imposed under the scheme only if it is necessary
to ensure health services are provided safely and are of an appropriate
quality.
4 How functions to be exercised
App.
An entity that has functions under this Law is to exercise its functions
having regard to the objectives and guiding principles of the national
registration and accreditation scheme set out in section 3.
5 Definitions
In this Law—
"accreditation authority" means—
(a) an external accreditation
entity; or
(b) an accreditation committee.
"accreditation committee" means a committee established by a National Board to
exercise an accreditation function for the health profession for which the
Board is established.
"accreditation standard", for a health profession, means a standard used to
assess whether a program of study, and the education provider that provides
the program of study, provide persons who complete the program with the
knowledge, skills and professional attributes necessary to practise the
profession in Australia.
"accredited program of study" means a program of study accredited under
section 48 by an accreditation authority.
"adjudication body" means—
(a) a panel; or
(b) a responsible tribunal; or
(c) a Court; or
(d) an entity of a co-regulatory
jurisdiction that is declared in the Act applying this Law to be an
adjudication body for the purposes of this Law.
"Advisory Council" means the Australian Health Workforce Advisory Council
established by section 18.
"Agency Fund" means the Australian Health Practitioner Regulation Agency Fund
established by section 208.
"Agency Management Committee" means the Australian Health Practitioner
Regulation Agency Management Committee established by section 29.
"appropriate professional indemnity insurance arrangements", in relation to a
registered health practitioner, means professional indemnity insurance
arrangements that comply with an approved registration standard for the health
profession in which the practitioner is registered.
App.
"approved accreditation standard" means an accreditation standard—
(a) approved by a National Board
under section 47(3); and
(b) published on the Board's website
under section 47(6).
"approved area of practice", for a health profession, means an area of
practice approved under section 15 for the profession.
"approved program of study", for a health profession or for endorsement of
registration in a health profession, means an accredited program of
study—
(a) approved under section 49(1) by
the National Board established for the health profession; and
(b) included in the list published
by the National Agency under section 49(5).
"approved qualification"—
(a) for a health profession, means a
qualification obtained by completing an approved program of study for the
profession; and
(b) for endorsement of registration
in a health profession, means a qualification obtained by completing an
approved program of study relevant to the endorsement.
"approved registration standard" means a registration standard—
(a) approved by the Ministerial
Council under section 12; and
(b) published on the website of the
National Board that developed the standard.
"Australian legal practitioner" means a person who—
(a) is admitted to the legal
profession under the law of a State or Territory; and
(b) holds a current practising
certificate under a law of a State or Territory authorising the person to
practise the legal profession.
"COAG Agreement" means the agreement for a national registration and
accreditation scheme for health professions, made on 26 March 2008 between the
Commonwealth, the States, the Australian Capital Territory and the Northern
Territory.
App.
Note.
A copy of the COAG Agreement is available on the Council of Australian
Governments' website.
"co-regulatory authority", for a co-regulatory jurisdiction, means an entity
that is declared by the Act applying this Law in the co-regulatory
jurisdiction to be a co-regulatory authority for the purposes of this Law.
"co-regulatory jurisdiction" means a participating jurisdiction in which the
Act applying this Law declares that the jurisdiction is not participating in
the health, performance and conduct process provided by Divisions 3 to 12
of Part 8.
"corresponding prior Act" means a law of a participating jurisdiction
that—
(a) was in force before the day on
which the jurisdiction became a participating jurisdiction; and
(b) established an entity having
functions that included—
(i) the
registration of persons as health practitioners; or
(ii) health,
conduct or performance action.
"criminal history", of a person, means the following—
(a) every conviction of the person
for an offence, in a participating jurisdiction or elsewhere, and whether
before or after the commencement of this Law;
(b) every plea of guilty or finding
of guilt by a court of the person for an offence, in a participating
jurisdiction or elsewhere, and whether before or after the commencement of
this Law and whether or not a conviction is recorded for the offence;
(c) every charge made against the
person for an offence, in a participating jurisdiction or elsewhere, and
whether before or after the commencement of this Law.
"criminal history law" means a law of a participating jurisdiction that
provides that spent or other convictions do not form part of a person's
criminal history and prevents or does not require the disclosure of those
convictions.
"division", of a health profession, means a part of a health profession for
which a Division is included in the National Register kept for the profession.
App.
"education provider" means—
(a) a university; or
(b) a tertiary education
institution, or another institution or organisation, that provides vocational
training; or
(c) a specialist medical college or
other health profession college.
"entity" includes a person and an unincorporated body.
"exercise" a function includes perform a duty.
"external accreditation entity" means an entity, other than a committee
established by a National Board, that exercises an accreditation function.
"health assessment" means an assessment of a person to determine whether the
person has an impairment and includes a medical, physical, psychiatric or
psychological examination or test of the person.
"health complaints entity" means an entity—
(a) that is established by or under
an Act of a participating jurisdiction; and
(b) whose functions include
conciliating, investigating and resolving complaints made against health
service providers and investigating failures in the health system.
"health, conduct or performance action" means action that—
(a) a National Board or an
adjudication body may take in relation to a registered health practitioner or
student at the end of a proceeding under Part 8; or
(b) a co-regulatory authority or an
adjudication body may take in relation to a registered health practitioner or
student at the end of a proceeding that, under the law of a co-regulatory
jurisdiction, substantially corresponds to a proceeding under Part 8.
"health panel" means a panel established under section 181.
"health practitioner" means an individual who practises a health profession.
App.
"health profession" means the following professions, and includes a recognised
specialty in any of the following professions—
(a) Aboriginal and Torres Strait
Islander health practice;
(b) Chinese medicine;
(c) chiropractic;
(d) dental (including the profession
of a dentist, dental therapist, dental hygienist, dental prosthetist and oral
health therapist);
(e) medical;
(f) medical radiation practice;
(g) nursing and midwifery;
(h) occupational therapy;
(i) optometry;
(j) osteopathy;
(k) pharmacy;
(l) physiotherapy;
(m) podiatry;
(n) psychology.
Note.
See Division 15 of Part 12 which provides for a staged commencement of the
application of this Law to the Aboriginal and Torres Strait Islander health
practice, Chinese medicine, medical radiation practice and occupational
therapy professions.
health profession agreement has the meaning given by section 26.
"health program" means a program providing education, prevention, early
intervention, treatment or rehabilitation services relating to physical or
mental impairments, disabilities, conditions or disorders, including substance
abuse or dependence.
"health service" includes the following services, whether provided as public
or private services—
(a) services provided by registered
health practitioners;
(b) hospital services;
(c) mental health services;
App.
(d) pharmaceutical services;
(e) ambulance services;
(f) community health services;
(g) health education services;
(h) welfare services necessary to
implement any services referred to in paragraphs (a) to (g);
(i) services
provided by dietitians, masseurs, naturopaths, social workers, speech
pathologists, audiologists or audiometrists;
(j) pathology services.
"health service provider" means a person who provides a health service.
"impairment", in relation to a person, means the person has a physical or
mental impairment, disability, condition or disorder (including substance
abuse or dependence) that detrimentally affects or is likely to detrimentally
affect—
(a) for a registered health
practitioner or an applicant for registration in a health profession, the
person's capacity to practise the profession; or
(b) for a student, the student's
capacity to undertake clinical training—
(i) as part of
the approved program of study in which the student is enrolled; or
(ii) arranged
by an education provider.
"local registration authority" means an entity having functions under a law of
a State or Territory that include the registration of persons as health
practitioners.
"mandatory notification" means a notification an entity is required to make to
the National Agency under Division 2 of Part 8.
"medical practitioner" means a person who is registered under this "Law" in
the medical profession.
"Ministerial Council" means the Australian Health
Workforce Ministerial Council comprising Ministers of the governments of the
participating jurisdictions and the Commonwealth with portfolio responsibility
for health.
App.
"National Agency" means the Australian Health Practitioner Regulation Agency
established by section 23.
"National Board" means a National Health Practitioner Board established by
section 31.
"National Register" means the Register kept by a National Board under section
222.
"national registration and accreditation scheme" means the scheme—
(a) referred to in the COAG
Agreement; and
(b) established by this Law.
"notification" means—
(a) a mandatory notification; or
(b) a voluntary notification.
"notifier" means a person who makes a notification.
"panel" means—
(a) a health panel; or
(b) a performance and professional
standards panel.
"participating jurisdiction" means a State or Territory—
(a) that is a party to the COAG
Agreement; and
(b) in which—
(i) this Law
applies as a law of the State or Territory; or
(ii) a law that
substantially corresponds to the provisions of this Law has been enacted.
"performance and professional standards panel" means a panel established under
section 182.
"performance assessment" means an assessment of the knowledge, skill or
judgment possessed, or care exercised by, a registered health practitioner in
the practice of the health profession in which the practitioner is registered.
"police commissioner" means the commissioner of the police force or police
service of a participating jurisdiction or the Commonwealth.
"principal place of practice", for a registered health practitioner, means the
address declared by the practitioner to be the address—
(a) at which the practitioner is
predominantly practising the profession; or
App.
(b) if the practitioner is not
practising the profession or is not practising the profession predominantly at
one address, that is the practitioner's principal place of residence.
"professional misconduct", of a registered health practitioner,
includes—
(a) unprofessional conduct by the
practitioner that amounts to conduct that is substantially below the standard
reasonably expected of a registered health practitioner of an equivalent level
of training or experience; and
(b) more than one instance of
unprofessional conduct that, when considered together, amounts to conduct that
is substantially below the standard reasonably expected of a registered health
practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner,
whether occurring in connection with the practice of the health practitioner's
profession or not, that is inconsistent with the practitioner being a fit and
proper person to hold registration in the profession.
"program of study" means a program of study provided by an education provider.
"psychologist" means a person registered under this Law in the psychology
profession.
"public health facility" includes—
(a) a public hospital; and
(b) a public health, teaching or
research facility.
"recognised specialty" means a specialty in a health profession that has been
approved by the Ministerial Council under section 13(2).
"registered health practitioner" means an individual who—
(a) is registered under this Law to
practise a health profession, other than as a student; or
(b) holds non-practising
registration under this Law in a health profession.
"registration authority" means—
(a) a local registration authority;
or
(b) an entity of a jurisdiction
outside Australia that has responsibility for registering health practitioners
in that jurisdiction.
"registration standard" means a registration standard developed by a National
Board under section 38.
App.
"registration status", in relation to an applicant for registration,
includes—
(a) any undertakings given by the
applicant to a registration authority, whether before or after the
commencement of this Law; and
(b) any conditions previously
imposed on the applicant's registration by a registration authority, whether
before or after the commencement of this Law; and
(c) any decisions made by a
registration authority, a tribunal, a court or another entity having functions
relating to the regulation of health practitioners about the applicant's
practice of the profession, whether before or after the commencement of this
Law; and
(d) any investigation commenced by a
registration authority or a health complaints entity into the applicant's
conduct, performance or possible impairment but not finalised at the time of
the application.
"relevant action", for Division 10 of Part 8, see section 178.
"relevant fee", for a service provided by a National Board, means the
fee—
(a) set under a health profession
agreement between the Board and the National Agency for the service; and
(b) published on the Board's website
under section 26(3).
"responsible Minister" means a Minister responsible for the administration of
this Law in a participating jurisdiction.
"responsible tribunal" means a tribunal or court that—
(a) is declared, by the Act applying
this Law in a participating jurisdiction, to be the responsible tribunal for
that jurisdiction for the purposes of this Law as applied in that
jurisdiction, or
(b) is declared, by a law that
substantially corresponds to this Law enacted in a participating jurisdiction,
to be the responsible tribunal for that jurisdiction for the purposes of the
law of that jurisdiction.
"review period", for a condition or undertaking, means the period during which
the condition may not be changed or removed, or the undertaking may not be
changed or revoked, under section 125, 126 or 127.
App.
"scheduled medicine" means a substance included in a Schedule to the current
Poisons Standard within the meaning of the Therapeutic Goods Act 1989 of the
Commonwealth.
"specialist health practitioner" means a person registered under this Law in a
recognised specialty.
"Specialists Register" means a register kept by a National Board under section
223.
"specialist title", in relation to a recognised specialty, means a title that
is approved by the Ministerial Council under section 13 as being a specialist
title for that recognised specialty.
State or Territory Board has the meaning given by section 36.
"student" means a person whose name is entered in a student register as being
currently registered under this Law.
"student register", for a health profession, means a register kept under
section 229 by the National Board established for the profession.
"unprofessional conduct", of a registered health practitioner, means
professional conduct that is of a lesser standard than that which might
reasonably be expected of the health practitioner by the public or the
practitioner's professional peers, and includes—
(a) a contravention by the
practitioner of this Law, whether or not the practitioner has been prosecuted
for, or convicted of, an offence in relation to the contravention; and
(b) a contravention by the
practitioner of—
(i) a condition
to which the practitioner's registration was subject; or
(ii) an
undertaking given by the practitioner to the National Board that registers the
practitioner; and
(c) the conviction of the
practitioner for an offence under another Act, the nature of which may affect
the practitioner's suitability to continue to practise the profession; and
(d) providing a person with health
services of a kind that are excessive, unnecessary or otherwise not reasonably
required for the person's well-being; and
App.
(e) influencing, or attempting to
influence, the conduct of another registered health practitioner in a way that
may compromise patient care; and
(f) accepting a benefit as
inducement, consideration or reward for referring another person to a health
service provider or recommending another person use or consult with a health
service provider; and
(g) offering or giving a person a
benefit, consideration or reward in return for the person referring another
person to the practitioner or recommending to another person that the person
use a health service provided by the practitioner; and
(h) referring a person to, or
recommending that a person use or consult, another health service provider,
health service or health product if the practitioner has a pecuniary interest
in giving that referral or recommendation, unless the practitioner discloses
the nature of that interest to the person before or at the time of giving the
referral or recommendation.
"unsatisfactory professional performance", of a registered health
practitioner, means the knowledge, skill or judgment possessed, or care
exercised by, the practitioner in the practice of the health profession in
which the practitioner is registered is below the standard reasonably expected
of a health practitioner of an equivalent level of training or experience.
"voluntary notification" means a notification made under Division 3 of Part 8.
6 Interpretation generally
Schedule 7 applies in relation to this Law.
7 Single national entity
(1) It is the intention of the Parliament of
this jurisdiction that this Law as applied by an Act of this jurisdiction,
together with this Law as applied by Acts of the other participating
jurisdictions, has the effect that an entity established by this Law is one
single national entity, with functions conferred by this Law as so applied.
(2) An entity established by this Law has power to
do acts in or in relation to this jurisdiction in the exercise of a function
expressed to be conferred on it by this Law as applied by Acts of each
participating jurisdiction.
(3) An entity established by this Law may exercise
its functions in relation to—
App.
(a) one participating jurisdiction;
or
(b) 2 or more or all participating
jurisdictions collectively.
(4) In this section, a reference to this Law as
applied by an Act of a jurisdiction includes a reference to a law that
substantially corresponds to this Law enacted in a jurisdiction.
8 Extraterritorial operation of Law
It is the intention of the Parliament of this jurisdiction that the operation
of this Law is to, as far as possible, include operation in relation to the
following—
(a) things situated in or outside
the territorial limits of thisjurisdiction;
(b) acts, transactions and matters
done, entered into or occurring in or outside the territorial limits of
this jurisdiction;
(c) things, acts, transactions and
matters (wherever situated, done, entered into or occurring) that would, apart
from this Law, be governed or otherwise affected by the law of another
jurisdiction.
9 Trans-Tasman mutual recognition principle
This Law does not affect the operation of an Act of a participating
jurisdiction providing for the application of the Trans-Tasman mutual
recognition principle to occupations.
10 Law binds the State
(1) This Law binds the State.
(2) In this section—
"State" means the Crown in right of this jurisdiction, and includes—
(c) a statutory corporation, or
other entity, representing the Crown in right of this jurisdiction.
Part 2 Ministerial Council
App.
11 Policy directions
(1) The Ministerial Council may give directions to
the National Agency about the policies to be applied by the National Agency in
exercising its functions under this Law.
(2) The Ministerial Council may give directions to
a National Board about the policies to be applied by the National Board in
exercising its functions under this Law.
(3) Without limiting subsections (1) and (2), a
direction under this section may relate to—
(a) a matter relevant to the
policies of the National Agency or a National Board; or
(b) an administrative process of the
National Agency or a National Board; or
(c) a procedure of the National
Agency or a National Board; or
(d) a particular proposed
accreditation standard, or a particular proposed amendment of an accreditation
standard, for a health profession.
(4) However, the Ministerial Council may give a
National Board a direction under subsection (3)(d) only if—
(a) in the Council's opinion, the
proposed accreditation standard or amendment will have a substantive and
negative impact on the recruitment or supply of health practitioners; and
(b) the Council has first given
consideration to the potential impact of the Council's direction on the
quality and safety of health care.
(5) A direction under this section cannot be
about—
(a) a particular person; or
(b) a particular qualification; or
(c) a particular application,
notification or proceeding.
(6) The National Agency or a National Board must
comply with a direction given to it by the Ministerial Council under this
section.
12 Approval of registration standards
(1) The Ministerial Council may approve a
registration standard about—
App.
(a) the registration, or renewal of
registration, of persons in a health profession; or
(b) the endorsement, or renewal of
the endorsement, of the registration of registered health practitioners.
(2) The Ministerial Council may approve a
registration standard for a health profession only if—
(a) its approval is recommended by
the National Board established for the health profession; and
(b) it does not provide for a matter
about which an accreditation standard may provide.
Note.
An accreditation standard for a health profession is a standard used to assess
whether a program of study, and the education provider that provides the
program, provide persons who complete the program with the knowledge, skills
and professional attributes to practise the profession in Australia.
Accreditation standards are developed and approved under Division 3 of Part 6.
(3) The Ministerial Council may, at any time, ask
a National Board to review an approved or proposed registration standard for
the health profession for which the National Board is established.
13 Approvals in relation to specialist
registration
(1) The following health professions, or divisions
of health professions, are health professions for which specialist recognition
operates under this Law—
(a) the medical profession;
(b) the dentists division of the
dental profession;
(c) any other health profession
approved by the Ministerial Council, on the recommendation of the National
Board established for the profession.
(2) If a health profession is a profession for
which specialist recognition operates, the Ministerial Council may, on the
recommendation of the National Board established for the profession—
(a) approve a list of specialties
for the profession; and
App.
(b) approve one or more specialist
titles for each specialty in the list.
(3) In making a recommendation to the Ministerial
Council for the purposes of subsection (1)(c) or (2), a National Board
established for a health profession may have regard to any relevant advice
provided by—
(a) an accreditation authority for
the profession; or
(b) a specialist college for the
profession.
(4) The Ministerial Council may provide guidance
to a National Board established for a health profession for which specialist
recognition will operate in relation to the criteria for the approval of
specialties for the profession by the Council.
14 Approval of endorsement in relation to
scheduled medicines
(1) The Ministerial Council may, on the
recommendation of a National Board, decide that the Board may endorse the
registration of health practitioners practising the profession for which the
Board is established as being qualified to administer, obtain, possess,
prescribe, sell, supply or use a scheduled medicine or class of scheduled
medicines.
Note.
See section 94 which provides for the endorsement of health practitioners'
registration in relation to scheduled medicines.
(2) An approval under subsection (1) is to
specify—
(a) the class of health
practitioners registered by the Board to which the approval relates; and
(b) whether the National Board may
endorse the registration of the class of health practitioners as being
qualified in relation to a particular scheduled medicine or a class of
scheduled medicines; and
(c) whether the National Board may
endorse the registration of the class of health practitioners in relation to
administering, obtaining, possessing, prescribing, selling, supplying or using
the scheduled medicine or class of scheduled medicines.
15 Approval of areas of practice for purposes of
endorsement
App.
The Ministerial Council may, on the recommendation of a National Board,
approve an area of practice in the health profession for which the Board is
established as being an area of practice for which the registration of a
health practitioner registered in the profession may be endorsed.
Note.
See section 98 which provides for the endorsement of health practitioners'
registration in relation to approved areas of practice.
16 How Ministerial Council exercises functions
(1) The Ministerial Council is to give a direction
or approval, or make a recommendation, request or appointment, for the
purposes of a provision of this Law by resolution of the Council passed in
accordance with procedures determined by the Council.
(2) An act or thing done by the Ministerial
Council (whether by resolution, instrument or otherwise) does not cease to
have effect merely because of a change in the Council's membership.
17 Notification and publication of directions and
approvals
(1) A copy of any direction given by the
Ministerial Council to the National Agency—
(a) is to be given to the
Chairperson of the Agency Management Committee; and
(b) must be published by the
National Agency on its website as soon as practicable after being received by
the Chairperson.
(2) A copy of a direction or approval given by the
Ministerial Council to a National Board—
(a) is to be given to the
Chairperson of the National Board; and
(b) if the direction is given under
section 11(3)(d), is to include reasons for the direction; and
(c) must be published by the
National Board on its website as soon as practicable after being received by
the Chairperson.
App.
(3) A copy of a direction or approval given by the
Ministerial Council to the National Agency or to a National Board is to be
published in the annual report of the National Agency.
Part 3 Australian Health Workforce Advisory Council
18 Establishment of Advisory Council
The Australian Health Workforce Advisory Council is established.
19 Function of Advisory Council
(1) The function of the Advisory Council is to
provide independent advice to the Ministerial Council about the
following—
(a) any matter relating to the
national registration and accreditation scheme that is referred to it by the
Ministerial Council;
(b) if asked by the Ministerial
Council, any matter relating to the national registration and accreditation
scheme on which the Ministerial Council has been unable to reach a decision;
(c) any other matter relating to the
national registration and accreditation scheme that it considers appropriate.
(2) Advice under this section cannot be
about—
(a) a particular person; or
(b) a particular qualification; or
(c) a particular application,
notification or proceeding.
20 Publication of advice
(1) The Ministerial Council is to make
arrangements for the publication of advice given to it by the Advisory Council
as soon as practicable after the Ministerial Council has had the opportunity
to consider the advice, in accordance with the COAG Agreement.
(2) However, the Ministerial Council may decide
not to publish an advice or part of an advice if the Advisory Council
recommends that the Council not publish it in the interests of protecting the
privacy of any person.
21 Powers of Advisory Council
App.
The Advisory Council has the powers necessary to enable it to exercise its
function.
22 Membership of Advisory Council
(1) The Advisory Council is to consist of 7
members.
(2) Members of the Advisory Council are to be
appointed by the Ministerial Council.
(3) One of the members of the Advisory Council is
to be appointed as Chairperson, being a person who—
(a) is not a registered health
practitioner; and
(b) has not been registered as a
health practitioner under this Law or a corresponding prior Act within the
last 5 years.
(4) At least 3 of the other members of the
Advisory Council are to be persons who have expertise in health, or education
and training, or both.
(5) Schedule 1 sets out provisions relating to the
Advisory Council.
Part 4 Australian Health Practitioner Regulation Agency
Division 1 National Agency
23 National Agency
(1) The Australian Health Practitioner Regulation
Agency is established.
(2) The National Agency—
(a) is a body corporate with
perpetual succession; and
(b) has a common seal; and
(c) may sue and be sued in its
corporate name.
(3) The National Agency represents the State.
(4) Schedule 3 sets out provisions relating to the
National Agency.
24 General powers of National Agency
The National Agency has all the powers of an individual and, in particular,
may—
App.
(a) enter into contracts; and
(b) acquire, hold, dispose of, and
deal with, real and personal property; and
(c) do anything necessary or
convenient to be done in the exercise of its functions.
25 Functions of National Agency
The functions of the National Agency are as follows—
(a) to provide administrative
assistance and support to the National Boards, and the Boards' committees, in
exercising their functions;
(b) in consultation with the
National Boards, to develop and administer procedures for the purpose of
ensuring the efficient and effective operation of the National Boards;
(c) to establish procedures for the
development of accreditation standards, registration standards and codes and
guidelines approved by National Boards, for the purpose of ensuring the
national registration and accreditation scheme operates in accordance with
good regulatory practice;
(d) to negotiate in good faith with,
and attempt to come to an agreement with, each National Board on the terms of
a health profession agreement;
(e) to establish and administer an
efficient procedure for receiving and dealing with applications for
registration as a health practitioner and other matters relating to the
registration of registered health practitioners;
(f) in conjunction with the National
Boards, to keep up-to-date and publicly accessible national registers of
registered health practitioners for each health profession;
(g) in conjunction with the National
Boards, to keep up-to-date national registers of students for each health
profession;
(h) to keep an up-to-date and
publicly accessible list of approved programs of study for each health
profession;
(i) to
establish an efficient procedure for receiving and dealing with notifications
against persons who are or were registered health practitioners and persons
who are students, including by establishing a national process for receiving
notifications about registered health practitioners in all professions;
App.
(j) to provide advice to the
Ministerial Council in connection with the administration of the national
registration and accreditation scheme;
(k) if asked by the Ministerial
Council, to give to the Ministerial Council the assistance or information
reasonably required by the Ministerial Council in connection with the
administration of the national registration and accreditation scheme;
(l) any other function given to the
National Agency by or under this Law.
26 Health profession agreements
(1) The National Agency must enter into an
agreement (a health profession agreement ) with a National Board that makes
provision for the following—
(a) the fees that will be payable
under this Law by health practitioners and others in respect of the health
profession for which the Board is established (including arrangements relating
to refunds of fees, waivers of fees and additional fees for late payment);
(b) the annual budget of the
National Board (including the funding arrangements for its committees and
accreditation authorities);
(c) the services to be provided to
the National Board by the National Agency to enable the National Board to
carry out its functions under this Law.
(2) If the National Agency and a National Board
are unable to agree on a matter relating to a health profession agreement or a
proposed health profession agreement, the Ministerial Council may give
directions to the National Agency and National Board about how the dispute is
to be resolved.
(3) Each National Board must publish on its
website the fees for which provision has been made in a health profession
agreement between the Board and the National Agency.
27 Co-operation with participating jurisdictions
and Commonwealth
(1) The National Agency may exercise any of its
functions in co-operation with or with the assistance of a participating
jurisdiction or the Commonwealth, including in co-operation with or with the
assistance of any of the following—
App.
(a) a government agency of a
participating jurisdiction or of the Commonwealth;
(b) a local registration authority;
(c) a co-regulatory authority;
(d) a health complaints entity;
(e) an educational body or other
body established by or under a law of a participating jurisdiction or the
Commonwealth.
(2) In particular, the National Agency may—
(a) ask an entity referred to in
subsection (1) for information that the Agency requires to exercise its
functions under this Law; and
(b) use the information to exercise
its functions under this Law.
(3) An entity referred to in subsection (1) that
receives a request for information from the National Agency is authorised to
give the information to the National Agency.
28 Office of National Agency
(1) The National Agency is to establish a national
office.
(2) The National Agency is also to establish at
least one local office in each participating jurisdiction.
Division 2 Agency Management Committee
29 Agency Management Committee
(1) The Australian Health Practitioner Regulation
Agency Management Committee is established.
(2) The Agency Management Committee is to consist
of at least 5 members appointed by the Ministerial Council.
(3) Of the members—
(a) one is to be a person appointed
by the Ministerial Council as Chairperson, being a person who—
App.
(i) is not a
registered health practitioner; and
(ii) has not
been registered as a health practitioner under this Law or a corresponding
prior Act within the last 5 years; and
(b) at least 2 others are to be
persons who have expertise in health, or education and training, or both; and
(c) at least 2 others are to be
persons who are not current or former registered health practitioners and who
have business or administrative expertise.
(4) Schedule 2 sets out provisions relating to the
Agency Management Committee.
30 Functions of Agency Management Committee
(1) The functions of the Agency Management
Committee are as follows—
(a) subject to any directions of the
Ministerial Council, to decide the policies of the National Agency;
(b) to ensure that the National
Agency performs its functions in a proper, effective and efficient way;
(c) any other function given to the
Committee by or under this Law.
(2) The affairs of the National Agency are to be
controlled by the Agency Management Committee and all acts and things done in
the name of, or on behalf of, the National Agency by or with the authority of
the Agency Management Committee are taken to have been done by the National
Agency.
Part 5 National Boards
Division 1 National Boards
31 Establishment of National Boards
(1) Each of the following National Health
Practitioner Boards is established for the health profession listed beside
that Board in the following Table—
App.
Table—National Boards
Name of Board
Health profession
Aboriginal and Torres Strait Islander Health Practice Board of Australia
Aboriginal and Torres Strait Islander health practice
Chinese Medicine Board of Australia
Chinese medicine
Chiropractic Board of Australia
chiropractic
Dental Board of Australia
dental (including the profession of a dentist, dental therapist, dental
hygienist, dental prosthetist or oral health therapist)
Medical Board of Australia
medical
Medical Radiation Practice Board of Australia
medical radiation practice
Nursing and Midwifery Board of Australia
nursing and midwifery
Occupational Therapy Board of Australia
occupational therapy
Optometry Board of Australia
optometry
Osteopathy Board of Australia
osteopathy
Pharmacy Board of Australia
pharmacy
Physiotherapy Board of Australia
physiotherapy
Podiatry Board of Australia
podiatry
Psychology Board of Australia
psychology
(2) A National Board—
(a) is a body corporate with
perpetual succession; and
(b) has a common seal; and
(c) may sue and be sued in its
corporate name.
(3) A National Board represents the State.
32 Powers of National Board
(1) Subject to subsection (2), a National Board
has the powers necessary to enable it to exercise its functions.
(2) A National Board does not have power to—
(a) enter into contracts; or
(b) employ staff; or
(c) acquire, hold, dispose of, and
deal with, real property.
App.
(3) The National Board may exercise any of its
functions in co-operation with or with the assistance of a participating
jurisdiction or the Commonwealth, including in co-operation with or with the
assistance of any of the following—
(a) a government agency of a
participating jurisdiction or of the Commonwealth;
(b) a local registration authority;
(c) a co-regulatory authority;
(d) a health complaints entity;
(e) an educational body or other
body established by or under a law of a participating jurisdiction or the
Commonwealth.
(4) In particular, the National Board may—
(a) ask an entity referred to in
subsection (3) for information that the Board requires to exercise its
functions under this Law; and
(b) use the information to exercise
its functions under this Law.
(5) An entity referred to in subsection (3) that
receives a request for information from the National Board is authorised to
give the information to the National Board.
33 Membership of National Boards
(1) A National Board is to consist of members
appointed in writing by the Ministerial Council.
(2) Members of a National Board are to be
appointed as practitioner members or community members.
(3) Subject to this section, the Ministerial
Council may decide the size and composition of a National Board.
(4) At least half, but not more than two-thirds,
of the members of a National Board must be persons appointed as practitioner
members.
(5) The practitioner members of a National Board
must consist of—
(a) at least one member from each
large participating jurisdiction; and
(b) at least one member from a small
participating jurisdiction.
App.
(6) At least 2 of the members of a National Board
must be persons appointed as community members.
(7) At least one of the members of a National
Board must live in a regional or rural area.
(8) A person cannot be appointed as a member of a
National Board if the person is a member of the Agency Management Committee.
(9) One of the practitioner members of the
National Board is to be appointed as Chairperson of the Board by the
Ministerial Council.
(10) Schedule 4 sets out provisions relating to a
National Board.
(11) In this section—
"large participating jurisdiction" means any of the following States that is a
participating jurisdiction—
(a) New South Wales;
(b) Queensland;
(c) South Australia;
(d) Victoria;
(e) Western Australia.
"small participating jurisdiction" means any of the following States or
Territories that is a participating jurisdiction—
(a) the Australian Capital
Territory;
(b) the Northern Territory;
(c) Tasmania.
34 Eligibility for appointment
(1) In deciding whether to appoint a person as a
member of a National Board, the Ministerial Council is to have regard to the
skills and experience of the person that are relevant to the Board's
functions.
(2) A person is eligible to be appointed as a
practitioner member only if the person is a registered health practitioner in
the health profession for which the Board is established.
App.
(3) A person is eligible to be appointed as a
community member of a National Board only if the person—
(a) is not a registered health
practitioner in the health profession for which the Board is established; and
(b) has not at any time been
registered as a health practitioner in the health profession under this Law or
a corresponding prior Act.
(4) A person is not eligible to be appointed as a
member of a National Board if—
(a) in the case of appointment as a
practitioner member, the person has ceased to be registered as a health
practitioner in the health profession for which the Board is established,
whether before or after the commencement of this Law, as a result of the
person's misconduct, impairment or incompetence; or
(b) in any case, the person has, at
any time, been found guilty of an offence (whether in a participating
jurisdiction or elsewhere) that, in the opinion of the Ministerial Council,
renders the person unfit to hold the office of member.
Division 2 Functions of National Boards
35 Functions of National Boards
(1) The functions of a National Board established
for a health profession are as follows—
(a) to register suitably qualified
and competent persons in the health profession and, if necessary, to impose
conditions on the registration of persons in the profession;
(b) to decide the requirements for
registration or endorsement of registration in the health profession,
including the arrangements for supervised practice in the profession;
(c) to develop or approve standards,
codes and guidelines for the health profession, including—
(i) the
approval of accreditation standards developed and submitted to it by an
accreditation authority; and
(ii) the
development of registration standards for approval by the Ministerial Council;
and
App.
(iii) the
development and approval of codes and guidelines that provide guidance to
health practitioners registered in the profession;
(d) to approve accredited programs
of study as providing qualifications for registration or endorsement in the
health profession;
(e) to oversee the assessment of the
knowledge and clinical skills of overseas trained applicants for registration
in the health profession whose qualifications are not approved qualifications
for the profession, and to determine the suitability of the applicants for
registration in Australia;
(f) to negotiate in good faith with,
and attempt to come to an agreement with, the National Agency on the terms of
a health profession agreement;
(g) to oversee the receipt,
assessment and investigation of notifications about persons who—
(i) are or were
registered as health practitioners in the health profession under this Law or
a corresponding prior Act; or
(ii) are
students in the health profession;
(h) to establish panels to conduct
hearings about—
(i) health and performance and professional standards matters in
relation to persons who are or were registered in the health profession under
this Law or a corresponding prior Act; and
(ii) health
matters in relation to students registered by the Board;
(i) to refer
matters about health practitioners who are or were registered under this Law
or a corresponding prior Act to responsible tribunals for participating
jurisdictions;
(j) to oversee the management of
health practitioners and students registered in the health profession,
including monitoring conditions, undertaking and suspensions imposed on the
registration of the practitioners or students;
(k) to make recommendations to the
Ministerial Council about the operation of specialist recognition in the
health profession and the approval of specialties for the profession;
App.
(l) in conjunction with the National
Agency, to keep up-to-date and publicly accessible national registers of
registered health practitioners for the health profession;
(m) in conjunction with the National
Agency, to keep an up-to-date national register of students for the health
profession;
(n) at the Board's discretion, to
provide financial or other support for health programs for registered health
practitioners and students;
(o) to give advice to the
Ministerial Council on issues relating to the national registration and
accreditation scheme for the health profession;
(p) if asked by the Ministerial
Council, to give to the Ministerial Council the assistance or information
reasonably required by the Ministerial Council in connection with the national
registration and accreditation scheme;
(q) to do anything else necessary or
convenient for the effective and efficient operation of the national
registration and accreditation scheme;
(r) any other function given to the
Board by or under this Law.
(2) For the purposes of subsection (1)(g)-(j), the
Board's functions do not include receiving notifications and taking action
referred to in those paragraphs in relation to behaviour by a registered
health practitioner or student that occurred, or is reasonably believed to
have occurred, in a co-regulatory jurisdiction.
36 State and Territory Boards
(1) A National Board may establish a committee (a
State or Territory Board) for a participating jurisdiction to enable the Board
to exercise its functions in the jurisdiction in a way that provides an
effective and timely local response to health practitioners and other persons
in the jurisdiction.
(2) A State or Territory Board is to be known as
the “[Name of participating jurisdiction for which it is established]
Board” of the National Board.
(3) The members of a State or Territory Board are
to be appointed by the responsible Minister for the participating
jurisdiction.
Example.
(a) The Pharmacy Board of Australia
decides to establish a State or Territory Board for New South Wales. The State
or Territory Board will be known as the New South Wales Board of the Pharmacy
Board of Australia. The members of the State or Territory Board will be
appointed by the responsible Minister for New South Wales.
(b) The Podiatry Board of Australia
decides to establish a State or Territory Board for Queensland and the
Northern Territory. The State or Territory Board will be known as the
Queensland and Northern Territory Board of the Podiatry Board of Australia.
The members of the State or Territory Board will be appointed jointly by the
responsible Ministers for Queensland and the Northern Territory.
(4) In deciding whether to appoint a person as a
member of a State or Territory Board, the responsible Minister is to have
regard to the skills and experience of the person that are relevant to the
Board's functions.
App.
(5) At least half, but not more than two-thirds,
of the members of a State or Territory Board must be persons appointed as
practitioner members.
(6) At least 2 of the members of a State or
Territory Board must be persons appointed as community members.
Note.
See section 299 which provides that subsections (5) and (6) do not apply to a
State or Territory Board for a jurisdiction for the first 12 months after
the jurisdiction becomes a participating jurisdiction.
(7) Before a responsible Minister appoints a
member of a State or Territory Board the vacancy to be filled is to be
publicly advertised.
(8) The National Agency may assist a responsible
Minister in the process of appointing members of a State or Territory Board,
including in the advertising of vacancies.
(9) It is not necessary to advertise a vacancy in
the membership of a State or Territory Board before appointing a person to act
in the office of a member.
App.
Note.
The general interpretation provisions applicable to this Law under section 6
confer power to appoint acting members of a State or Territory Board.
(10) This section does not limit clause 11 of
Schedule 4.
Note.
Clause 11 of Schedule 4 confers power for the establishment of other
committees.
37 Delegation of functions
(1) A National Board may delegate any of its
functions, other than this power of delegation, to—
(a) a committee; or
(b) the National Agency; or
(c) a member of the staff of the
National Agency; or
(d) a person engaged as a contractor
by the National Agency.
(2) The National Agency may subdelegate any
function delegated to the National Agency by a National Board to a member of
the staff of the National Agency.
Division 3 Registration standards and codes and guidelines
38 National board must develop registration
standards
(1) A National Board must develop and recommend to
the Ministerial Council one or more registration standards about the following
matters for the health profession for which the Board is established—
(a) requirements for professional
indemnity insurance arrangements for registered health practitioners
registered in the profession;
(b) matters about the criminal
history of applicants for registration in the profession, and registered
health practitioners and students registered by the Board, including, the
matters to be considered in deciding whether an individual's criminal history
is relevant to the practice of the profession;
(c) requirements for continuing
professional development for registered health practitioners registered in the
profession;
(d) requirements about the English
language skills necessary for an applicant for registration in the profession
to be suitable for registration in the profession;
(e) requirements in relation to the
nature, extent, period and recency of any previous practice of the profession
by applicants for registration in the profession.
(2) Subject to subsection (3), a National Board
may also develop, and recommend to the Ministerial Council, one or more
registration standards about the following—
App.
(a) the physical and mental health
of—
(i) applicants
for registration in the profession; and
(ii) registered
health practitioners and students;
(b) the scope of practice of health
practitioners registered in the profession;
(c) any other issue relevant to the
eligibility of individuals for registration in the profession or the
suitability of individuals to competently and safely practise the profession.
(3) A registration standard may not be about a
matter for which an accreditation standard may provide.
Note.
An accreditation standard for a health profession is used to assess whether a
program of study, and the education provider that provides the program of
study, provide persons who complete the program with the knowledge, skills and
professional attributes to practise the profession. Accreditation standards
are developed and approved under Division 3 of Part 6.
39 Codes and guidelines
A National Board may develop and approve codes and guidelines—
(a) to provide guidance to the
health practitioners it registers; and
App.
(b) about other matters relevant to
the exercise of its functions.
Example.
A National Board may develop guidelines about the advertising of regulated
health services by health practitioners registered by the Board or other
persons for the purposes of section 133.
40 Consultation about registration standards,
codes and guidelines
(1) If a National Board develops a registration
standard or a code or guideline, it must ensure there is wide-ranging
consultation about its content.
(2) A contravention of subsection (1) does not
invalidate a registration standard, code or guideline.
(3) The following must be published on a National
Board's website—
(a) a registration standard
developed by the Board and approved by the Ministerial Council;
(b) a code or guideline approved by
the National Board.
(4) An approved registration standard or a code or
guideline takes effect—
(a) on the day it is published on
the National Board's website; or
(b) if a later day is stated in the
registration standard, code or guideline, on that day.
41 Use of registration standards, codes or
guidelines in disciplinary proceedings
An approved registration standard for a health profession, or a code or
guideline approved by a National Board, is admissible in proceedings under
this Law or a law of a co-regulatory jurisdiction against a health
practitioner registered by the Board as evidence of what constitutes
appropriate professional conduct or practice for the health profession.
Part 6 Accreditation
Division 1 Preliminary
42 Definition
App.
In this Part—
"accreditation function" means—
(a) developing accreditation
standards for approval by a National Board; or
(b) assessing programs of study, and
the education providers that provide the programs of study, to determine
whether the programs meet approved accreditation standards; or
(c) assessing authorities in other
countries who conduct examinations for registration in a health profession, or
accredit programs of study relevant to registration in a health profession, to
decide whether persons who successfully complete the examinations or programs
of study conducted or accredited by the authorities have the knowledge,
clinical skills and professional attributes necessary to practise the
profession in Australia; or
(d) overseeing the assessment of the
knowledge, clinical skills and professional attributes of overseas qualified
health practitioners who are seeking registration in a health profession under
this Law and whose qualifications are not approved qualifications for the
health profession; or
(e) making recommendations and
giving advice to a National Board about a matter referred to in paragraph (a),
(b), (c) or (d).
Division 2 Accreditation authorities
43 Accreditation authority to be decided
(1) The National Board established for a health
profession must decide whether an accreditation function for the health
profession for which the Board is established is to be exercised by—
(a) an external accreditation
entity; or
(b) a committee established by the
Board.
Note.
See sections 253 and 301 which provide for the performance of accreditation
functions for a health profession by external accreditation authorities
appointed by the Ministerial Council for a period after the commencement of
this Law.
App.
(2) The National Agency may charge an entity the
relevant fee for the exercise of an accreditation function by an accreditation
committee.
44 National Agency may enter into contracts with
external accreditation entities
The National Agency may enter into a contract with an external accreditation
entity for the performance by the entity of an accreditation function for a
health profession only if the terms of the contract are in accordance with the
health profession agreement between the National Agency and the National Board
established for that profession.
45 Accreditation processes to be published
Each accreditation authority must publish on its website or, if the authority
is an accreditation committee, the website of the National Board that
established the committee, how it will exercise its accreditation function.
Division 3 Accreditation functions
46 Development of accreditation standards
(1) An accreditation standard for a health
profession may be developed by—
(a) an external accreditation entity
for the health profession; or
(b) an accreditation committee
established by the National Board established for the health profession.
(2) In developing an accreditation standard for a
health profession, an accreditation authority must undertake wide-ranging
consultation about the content of the standard.
47 Approval of accreditation standards
(1) An accreditation authority must, as soon as
practicable after developing an accreditation standard for a health
profession, submit it to the National Board established for the health
profession.
(2) As soon as practicable after a National Board
receives an accreditation standard under subsection (1), the Board must decide
to—
(a) approve the accreditation
standard; or
(b) refuse to approve the
accreditation standard; or
App.
(c) ask the accreditation authority
to review the standard.
(3) If the National Board decides to approve the
accreditation standard it must give written notice of the approval to—
(a) the National Agency; and
(b) the accreditation authority that
submitted the standard to the Board.
(4) If the National Board decides to refuse to
approve the accreditation standard—
(a) it must give written notice of
the refusal, including the reasons for the refusal, to the accreditation
authority that submitted the standard; and
(b) the accreditation authority is
entitled to publish any information or advice it gave the Board about the
standard.
(5) If the National Board decides to ask the
accreditation authority to review the standard it must give the authority a
written notice that—
(a) states that the authority is
being asked to review the standard; and
(b) identifies the matters the
authority is to address before again submitting the standard to the Board.
(6) An accreditation standard approved by a
National Board must be published on its website.
(7) An accreditation standard takes effect—
(a) on the day it is published on
the National Board's website; or
(b) if a later day is stated in the
standard, on that day.
48 Accreditation of programs of study
(1) An accreditation authority for a health
profession may accredit a program of study if, after assessing the program,
the authority is reasonably satisfied—
(a) the program of study, and the
education provider that provides the program of study, meet an approved
accreditation standard for the profession; or
App.
(b) the program of study, and the
education provider that provides the program of study, substantially meet an
approved accreditation standard for the profession and the imposition of
conditions on the approval will ensure the program meets the standard within a
reasonable time.
(2) If the accreditation authority decides to
accredit a program of study, with or without conditions, it must give to the
National Board established for the health profession a report about the
authority's accreditation of the program.
(3) If the accreditation authority decides to
refuse to accredit a program of study it must give written notice of the
decision to the education provider that provides the program of study.
(4) The notice must state—
(a) the reasons for the decision;
and
(b) that, within 30 days after
receiving the notice, the education provider may apply to the accreditation
authority for an internal review of the decision; and
(c) how the education provider may
apply for the review.
(5) An education provider given a notice under
subsection (3) may apply, as stated in the notice, for an internal review of
the accreditation authority's decision to refuse to accredit the program of
study.
(6) The internal review must not be carried out by
a person who assessed the program of study for the accreditation authority.
49 Approval of accredited programs of study
(1) If a National Board is given a report by an
accreditation authority about the authority's accreditation of a program of
study, the Board may approve, or refuse to approve, the accredited program of
study as providing a qualification for the purposes of registration in the
health profession for which the Board is established.
(2) An approval under subsection (1) may be
granted subject to the conditions the National Board considers necessary or
desirable in the circumstances.
(3) If the National Board decides to approve the
accredited program of study it must give written notice of the approval
to—
App.
(a) the National Agency for
inclusion of the program of study in the list under subsection (5); and
(b) the accreditation authority that
submitted the program to the Board.
(4) If the National Board decides to refuse to
approve the accredited program of study—
(a) it must give written notice of
the refusal, including the reasons for the refusal, to the accreditation
authority that submitted the program; and
(b) the accreditation authority is
entitled to publish any information or advice it gave the Board about the
program.
(5) A list of the programs of study approved by a
National Board as providing a qualification for registration in the health
profession for which the Board is established must be published on the
National Agency's website.
(6) The list of approved programs of study
published under subsection (5) must include, for each program of study, the
name of the university, specialist medical or other college or other education
provider that provides the approved program of study.
(7) An approval under subsection (1) does not take
effect until the program of study is included in the list published under
subsection (5).
50 Accreditation authority to monitor approved
programs of study
(1) The accreditation authority that accredited an
approved program of study must monitor the program and the education provider
that provides the program to ensure the authority continues to be satisfied
the program and provider meet an approved accreditation standard for the
health profession.
(2) If the accreditation authority reasonably
believes the program of study and education provider no longer meet an
approved accreditation standard for the health profession, the accreditation
authority must—
(a) decide to—
App.
(i) impose the
conditions on the accreditation that the accreditation authority considers
necessary to ensure the program of study will meet the standard within a
reasonable time; or
(ii) revoke the
accreditation of the program of study; and
(b) give the National Board that
approved the accredited program of study written notice of the accreditation
authority's decision.
51 Changes to approval of program of study
(1) If a National Board is given notice under
section 50(2)(b) that an accreditation authority has revoked the accreditation
of a program of study approved by the Board, the Board's approval of the
program is taken to have been cancelled at the same time the accreditation was
revoked.
(2) If a National Board reasonably believes,
because of a notice given to the Board under section 50(2)(b) or for any other
reason, that an accredited program of study approved by the Board no longer
provides a qualification for the purposes of registration in the health
profession for which the Board is established, the Board may decide to—
(a) impose the conditions the Board
considers necessary or desirable on the approval of the accredited program of
study to ensure the program provides a qualification for the purposes of
registration; or
(b) cancel its approval of the
accredited program of study.
(3) If a National Board makes a decision under
subsection (2), it must give written notice of the decision, including the
reasons for the decision, to the accreditation authority that accredited the
program.
Part 7 Registration of health practitioners
Division 1 General registration
52 Eligibility for general registration
(1) An individual is eligible for general
registration in a health profession if—
(a) the individual is qualified for
general registration in the health profession; and
App.
(b) the individual has successfully
completed—
(i) any period
of supervised practice in the health profession required by an approved
registration standard for the health profession; or
(ii) any
examination or assessment required by an approved registration standard for
the health profession to assess the individual's ability to competently and
safely practise the profession; and
(c) the individual is a suitable
person to hold general registration in the health profession; and
(d) the individual is not
disqualified under this Law or a law of a co-regulatory jurisdiction from
applying for registration, or being registered, in the health profession; and
(e) the individual meets any other
requirements for registration stated in an approved registration standard for
the health profession.
(2) Without limiting subsection (1), the National
Board established for the health profession may decide the individual is
eligible for general registration in the profession by imposing conditions on
the registration under section 83.
53 Qualifications for general registration
An individual is qualified for general registration in a health profession
if—
(a) the individual holds an approved
qualification for the health profession; or
(b) the individual holds a
qualification the National Board established for the health profession
considers to be substantially equivalent, or based on similar competencies, to
an approved qualification; or
(c) the individual holds a
qualification, not referred to in paragraph (a) or (b), relevant to the health
profession and has successfully completed an examination or other assessment
required by the National Board for the purpose of general registration in the
health profession; or
App.
(d) the individual—
(i) holds a
qualification, not referred to in paragraph (a) or (b), that under this Law or
a corresponding prior Act qualified the individual for general registration
(however described) in the health profession; and
(ii) was
previously registered under this Law or the corresponding prior Act on the
basis of holding that qualification.
54 Examination or assessment for general
registration
For the purposes of section 52(1)(b)(ii), if a National Board requires an
individual to undertake an examination or assessment, the examination or
assessment must be conducted by an accreditation authority for the health
profession, unless the Board decides otherwise.
55 Unsuitability to hold general registration
(1) A National Board may decide an individual is
not a suitable person to hold general registration in a health profession
if—
(a) in the Board's opinion, the
individual has an impairment that would detrimentally affect the individual's
capacity to practise the profession to such an extent that it would or may
place the safety of the public at risk; or
(b) having regard to the
individual's criminal history to the extent that is relevant to the
individual's practice of the profession, the individual is not, in the Board's
opinion, an appropriate person to practise the profession or it is not in the
public interest for the individual to practise the profession; or
(c) the individual has previously
been registered under a relevant law and during the period of that
registration proceedings under Part 8, or proceedings that substantially
correspond to proceedings under Part 8, were started against the individual
but not finalised; or
(d) in the Board's opinion, the
individual's competency in speaking or otherwise communicating in English is
not sufficient for the individual to practise the profession; or
App.
(e) the individual's registration
(however described) in the health profession in a jurisdiction that is not a
participating jurisdiction, whether in Australia or elsewhere, is currently
suspended or cancelled on a ground for which an adjudication body could
suspend or cancel a health practitioner's registration in Australia; or
(f) the nature, extent, period and
recency of any previous practice of the profession is not sufficient to meet
the requirements specified in an approved registration standard relevant to
general registration in the profession; or
(g) the individual fails to meet any
other requirement in an approved registration standard for the profession
about the suitability of individuals to be registered in the profession or to
competently and safely practise the profession; or
(h) in the Board's opinion, the
individual is for any other reason—
(i) not a fit
and proper person for general registration in the profession; or
(ii) unable to
practise the profession competently and safely.
(2) In this section—
"relevant law" means—
(a) this Law or a corresponding
prior Act; or
(b) the law of another jurisdiction,
whether in Australia or elsewhere.
56 Period of general registration
(1) The period of registration that is to apply to
a health practitioner granted general registration in a health profession is
the period (the registration period ), not more than 12 months, decided
by the National Board established for the profession and published on the
Board's website.
(2) If the National Board decides to register a
health practitioner in the health profession during a registration period, the
registration—
(a) starts when the Board makes the
decision; and
App.
(b) expires at the end of the last
day of the registration period.
Division 2 Specialist registration
57 Eligibility for specialist registration
(1) An individual is eligible for specialist
registration in a recognised specialty in a health profession if—
(a) the individual is qualified for
registration in the specialty; and
(b) the individual has successfully
completed—
(i) any period
of supervised practice in the specialty required by an approved registration
standard for the health profession; or
(ii) any
examination or assessment required by an approved registration standard for
the health profession to assess the individual's ability to competently and
safely practise the specialty; and
(c) the individual is a suitable
person to hold registration in the health profession; and
(d) the individual is not
disqualified under this Law or a law of a co-regulatory jurisdiction from
applying for registration, or being registered, in the specialty; and
(e) the individual meets any other
requirements for registration stated in an approved registration standard for
the specialty.
(2) Without limiting subsection (1), the National
Board may decide the individual is eligible for registration in the recognised
specialty by imposing conditions on the registration under section 83.
58 Qualifications for specialist registration
An individual is qualified for specialist registration in a recognised
specialty in a health profession if the individual—
(a) holds an approved qualification
for the specialty; or
(b) holds another qualification the
National Board established for the health profession considers to be
substantially equivalent, or based on similar competencies, to an approved
qualification for the specialty; or
App.
(c) holds a qualification, not
referred to in paragraph (a) or (b), relevant to the specialty and has
successfully completed an examination or other assessment required by the
National Board for the purpose of registration in the specialty; or
(d) the individual—
(i) holds a
qualification, not referred to in paragraph (a) or (b), that under this Law or
a corresponding prior Act qualified the individual for specialist registration
(however described) in the specialty; and
(ii) was
previously registered under this Law or the corresponding prior Act on the
basis of holding that qualification for the specialty.
59 Examination or assessment for specialist
registration
For the purposes of section 57(1)(b)(ii), if the National Board requires an
individual to undertake an examination or assessment, the examination or
assessment must be conducted by an accreditation authority for the health
profession, unless the Board decides otherwise.
60 Unsuitability to hold specialist registration
(1) Section 55 applies to the making of a decision
by a National Board that an individual is not a suitable person to hold
specialist registration in a recognised specialty.
(2) For the purposes of subsection (1), a
reference in section 55 to—
(a) general registration in the
health profession is taken to be a reference to specialist registration in a
recognised specialty; and
(b) the health profession is taken
to be a reference to the recognised specialty.
61 Period of specialist registration
(1) The period of registration that is to apply to
a health practitioner granted specialist registration in a recognised
specialty in a health profession is the period (the registration period ), not
more than 12 months, decided by the National Board established for the
profession and published on the Board's website.
(2) If the National Board decides to register a
health practitioner in a recognised specialty for the health profession during
a registration period, the specialist registration—
(a) starts when the Board makes the
decision; and
(b) expires at the end of the last
day of the registration period.
Division 3 Provisional registration
62 Eligibility for provisional registration
App.
(1) An individual is eligible for provisional
registration in a health profession, to enable the individual to complete a
period of supervised practice that the individual requires to be eligible for
general registration in the health profession, if—
(a) the individual is qualified for
general registration in the profession; and
(b) the individual is a suitable
person to hold provisional registration in the profession; and
(c) the individual is not
disqualified under this Law or a law of a co-regulatory jurisdiction from
applying for, or being registered in, the profession; and
(d) the individual meets any other
requirements for registration stated in an approved registration standard for
the health profession.
(2) Without limiting subsection (1), the National
Board established for the health profession may decide the individual is
eligible for provisional registration in the health profession by imposing
conditions on the registration under section 83.
63 Unsuitability to hold provisional registration
(1) Section 55 applies to a decision by a National
Board that an individual is not a suitable person to hold provisional
registration in a health profession.
(2) For the purposes of subsection (1), a
reference in section 55 to general registration in the health profession is
taken to be a reference to provisional registration in the health profession.
64 Period of provisional registration
(1) The period of registration (the registration
period) that is to apply to a health practitioner granted provisional
registration in a health profession is—
(a) the period decided by the
National Board established for the profession, but not more than 12 months,
and published on the Board's website; or
(b) the longer period prescribed by
a regulation.
(2) If the National Board decides to register a
health practitioner in the health profession during a registration period, the
registration—
(a) starts when the Board makes the
decision; and
(b) expires at the end of the last
day of the registration period.
(3) Provisional registration may not be renewed
more than twice.
App.
Note.
If an individual were not able to complete the supervised practice the
individual requires for general registration in a health profession during the
period consisting of the individual's initial period of registration and 2
renewals of that registration, the individual would need to make a new
application for provisional registration in the profession.
Division 4 Limited registration
65 Eligibility for limited registration
(1) An individual is eligible for limited
registration in a health profession if—
(a) the individual is not qualified
for general registration in the profession or specialist registration in a
recognised speciality in the profession; and
(b) the individual is qualified
under this Division for limited registration; and
(c) the individual is a suitable
person to hold limited registration in the profession; and
(d) the individual is not
disqualified under this Law or a law of a co-regulatory jurisdiction from
applying for registration, or being registered, in the health profession; and
(e) the individual meets any other
requirements for registration stated in an approved registration standard for
the health profession.
(2) Without limiting subsection (1), the National
Board established for the health profession may decide the individual is
eligible for registration in the profession by imposing conditions on the
registration under section 83.
66 Limited registration for postgraduate training
or supervised practice
App.
(1) An individual may apply for limited
registration to enable the individual to undertake a period of postgraduate
training or supervised practice in a health profession, or to undertake
assessment or sit an examination, approved by the National Board established
for the profession.
(2) The individual is qualified for the limited
registration applied for if the National Board is satisfied the individual has
completed a qualification that is relevant to, and suitable for, the
postgraduate training, supervised practice, assessment or examination.
67 Limited registration for area of need
(1) An individual may apply for limited
registration to enable the individual to practise a health profession in an
area of need decided by the responsible Minister under subsection (5).
(2) The individual is qualified for the limited
registration applied for if the National Board is satisfied the individual's
qualifications and experience are relevant to, and suitable for, the practice
of the profession in the area of need.
(3) The National Board must consider the
application but is not required to register the individual merely because
there is an area of need.
(4) If the National Board grants the individual
limited registration to enable the individual to practise the profession in
the area of need, the individual must not practise the profession other than
in the area of need specified in the individual's certificate of registration.
(5) A responsible Minister for a participating
jurisdiction may decide there is an area of need for health services in the
jurisdiction, or part of the jurisdiction, if the Minister considers there are
insufficient health practitioners practising in a particular health profession
in the jurisdiction or the part of the jurisdiction to provide services that
meet the needs of people living in the jurisdiction or the part of the
jurisdiction.
(6) If a responsible Minister decides there is an
area of need under subsection (5), the responsible Minister must give the
National Board established for the health profession written notice of the
decision.
(7) A responsible Minister may delegate the
Minister's power under this section to an appropriately qualified person.
App.
(8) In this section—
"appropriately qualified" means having the qualifications, experience or
standing appropriate to the exercise of the power.
"health services" means the provision of services by health practitioners in a
particular health profession.
68 Limited registration in public interest
(1) An individual may apply for limited
registration to enable the individual to practise a health profession for a
limited time, or for a limited scope, in the public interest.
(2) The individual is qualified for the limited
registration applied for if the National Board established for the health
profession is satisfied it is in the public interest for an individual with
the individual's qualifications and experience to practise the profession for
that time or scope.
69 Limited registration for teaching or research
(1) An individual may apply for limited
registration in a health profession to enable the individual to fill a
teaching or research position.
(2) The individual is qualified for the limited
registration applied for if the National Board established for the health
profession is satisfied the individual's qualifications are relevant to, and
suitable for, the position.
70 Unsuitability to hold limited registration
(1) Section 55 applies to a decision by a National
Board that an individual is not a suitable person to hold limited registration
in a health profession.
(2) For the purposes of subsection (1), a
reference in section 55 to general registration in the health profession is
taken to be a reference to limited registration in the health profession.
71 Limited registration not to be held for more
than one purpose
An individual may not hold limited registration in the same health profession
for more than one purpose under this Division at the same time.
72 Period of limited registration
(1) The period of registration that is to apply to
a health practitioner granted limited registration in a health profession is
the period (the registration period ), not more than 12 months, decided
by the National Board established for the profession and published on the
Board's website.
App.
(2) If the National Board decides to register a
health practitioner in the health profession during a registration period, the
registration—
(a) starts when the Board makes the
decision; and
(b) expires at the end of the last
day of the registration period.
(3) Limited registration may not be renewed more
than 3 times.
Note.
If an individual had been granted limited registration in a health profession
for a purpose under this Division, had subsequently renewed the registration
in the profession for that purpose 3 times and at the end of the period wished
to continue holding limited registration in the profession for that purpose,
the individual would need to make a new application for limited registration
in the profession for that purpose.
Division 5 Non-practising registration
73 Eligibility for non-practising registration
An individual is eligible for non-practising registration in a health
profession if—
(a) the individual—
(i) holds or
has held general registration in the health profession under this Law; or
(ii) holds or
has held specialist registration in a recognised speciality in the health
profession under this Law; or
(iii) held
registration in the health profession under a corresponding prior Act that was
equivalent to general registration or specialist registration in the health
profession under this Law;
(b) the individual is a suitable
person to hold non-practising registration in the profession.
74 Unsuitability to hold non-practising
registration
A National Board may decide an individual is not a suitable person to hold
non-practising registration in a health profession if—
(a) having regard to the
individual's criminal history to the extent that is relevant to the
individual's practise of the profession, the individual is not, in the Board's
opinion, an appropriate person to hold registration in the profession or it is
not in the public interest for the individual to hold registration in the
profession; or
App.
(b) in the Board's opinion, the
individual is for any other reason not a fit and proper person to hold
non-practising registration in the profession.
75 Registered health practitioner who holds
non-practising registration must not practise the profession
(1) A registered health practitioner who holds
non-practising registration in a health profession must not practise the
profession.
(2) A contravention of subsection (1) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
76 Period of non-practising registration
(1) The period of registration that is to apply to
a health practitioner granted non-practising registration in a health
profession is the period (the registration period ), not more than 12 months,
decided by the National Board established for the profession and published on
the Board's website.
(2) If the National Board decides to register a
health practitioner in the health profession during a registration period, the
registration—
(a) starts when the Board makes the
decision; and
(b) expires at the end of the last
day of the registration period.
Division 6 Application for registration
77 Application for registration
(1) An individual may apply to a National Board
for registration in the health profession for which the Board is established.
(2) An application must—
(a) be in the form approved by the
National Board; and
(b) be accompanied by the relevant
fee; and
(c) be accompanied by proof of the
applicant's identity; and
(d) be accompanied by any other
information reasonably required by the Board.
(3) Without limiting subsection (2)(a), a form
approved by a National Board for the purposes of that subsection must require
an applicant—
App.
(a) to provide a declaration
about—
(i) the address
at which the applicant will predominantly practise the profession; or
(ii) if the
applicant will not be practising the profession or will not predominantly
practise the profession at one address, the address that is the applicant's
principal place of residence; and
(b) to provide an address to be used
by the Board in corresponding with the applicant; and
(c) to disclose the applicant's
criminal history; and
(d) to authorise the Board to obtain
the applicant's criminal history.
Note.
See the definition of criminal history which applies to offences in
participating jurisdictions and elsewhere, including outside Australia.
(4) A criminal history law does not apply to the
requirement under subsection (3)(c) for the applicant to disclose the
applicant's criminal history.
(5) Information in the application must, if the
approved form requires, be verified by a statutory declaration.
78 Power to check applicant's proof of identity
(1) If an applicant for registration gives a
National Board a document as evidence of the applicant's identity under this
section, the Board may, by written notice, ask the entity that issued the
document—
(a) to confirm the validity of the
document; or
(b) to give the Board other
information relevant to the applicant's identity.
(2) An entity given a notice under subsection (1)
is authorised to give the National Board the information requested in the
notice.
79 Power to check applicant's criminal history
App.
(1) Before deciding an application for
registration, a National Board must check the applicant's criminal history.
(2) For the purposes of checking an applicant's
criminal history, a National Board may obtain a written report about the
criminal history of the applicant from any of the following—
(a) CrimTrac;
(b) a police commissioner;
(c) an entity in a jurisdiction
outside Australia that has access to records about the criminal history of
persons in that jurisdiction.
(3) A criminal history law does not apply to a
report about an applicant's criminal history under subsection (2).
80 Boards' other powers before deciding
application for registration
(1) Before deciding an application for
registration, a National Board may—
(a) investigate the applicant,
including, for example, by asking an entity—
(i) to give the
Board information about the applicant; or
(ii) to verify
information or a document that relates to the applicant;
Examples.
If the applicant is or has been registered by another registration authority,
the National Board may ask the registration authority for information about
the applicant's registration status.
The National Board may ask an entity that issued qualifications that the
applicant believes qualifies the applicant for registration for confirmation
that the qualification was issued to the applicant.
(b) by written notice given to the
applicant, require the applicant to give the Board, within a reasonable time
stated in the notice, further information or a document the Board reasonably
requires to decide the application; and
App.
(c) by written notice given to the
applicant, require the applicant to attend before the Board, within a
reasonable time stated in the notice and at a reasonable place, to answer any
questions of the Board relating to the application; and
(d) by written notice given to the
applicant, require the applicant to undergo an examination or assessment,
within a reasonable time stated in the notice and at a reasonable place, to
assess the applicant's ability to practise the health profession in which
registration is sought; and
(e) by written notice given to the
applicant, require the applicant to undergo a health assessment, within a
reasonable time stated in the notice and at a reasonable place.
(2) The National Board may require the information
or document referred to in subsection (1)(b) to be verified by a statutory
declaration.
(3) If the National Board requires an applicant to
undertake an examination or assessment under subsection (1)(d) to assess the
applicant's ability to practise the health profession—
(a) the examination or assessment
must be conducted by an accreditation authority for the health profession,
unless the Board decides otherwise; and
(b) the National Agency may require
the applicant to pay the relevant fee.
(4) A notice under subsection (1)(d) or (e) must
state—
(a) the reason for the examination
or assessment; and
(b) the name and qualifications of
the person appointed by the National Board to conduct the examination or
assessment; and
(c) the place where, and the day and
time at which, the examination or assessment is to be conducted.
(5) The applicant is taken to have withdrawn the
application if, within the stated time, the applicant does not comply with a
requirement under subsection (1).
81 Applicant may make submissions about proposed
refusal of application or imposition of condition
App.
(1) If, after considering an application for
registration, a National Board is proposing to refuse to register the
applicant or to register the applicant subject to a condition, the Board must
give the applicant written notice of the proposal.
(2) The notice must—
(a) state the reasons for the
proposal; and
(b) invite the applicant to make a
written or verbal submission to the Board by the date stated in the notice,
being not less than 30 days after the day the notice is given to the
applicant, about the proposal.
82 Decision about application
(1) After considering an application for
registration and any submissions made in accordance with a notice under
section 81, a National Board established for a health profession must—
(a) decide to grant the applicant
the type of registration in the health profession applied for if the applicant
is eligible for that type of registration under a relevant section; or
(b) decide to grant the applicant a
type of registration in the health profession, other than the type of
registration applied for, for which the applicant is eligible under a relevant
section; or
(c) decide to refuse to grant the
applicant registration in the health profession if—
(i) the
applicant is ineligible for registration in the profession under a relevant
section because the applicant—
(A) is not qualified for registration; or
(B) has not completed a period of supervised
practice in the health profession, or an examination or assessment required by
the Board to assess the individual's ability to practise the profession; or
(C) is not a suitable person to hold registration;
or
(D) is disqualified under this Law from applying
for registration, or being registered, in the health profession; or
(E) does not meet a requirement for registration
stated in an approved registration standard for the profession; or
App.
(ii) it would
be improper to register the applicant because the applicant or someone else
gave the National Board information or a document in relation to the
application that was false or misleading in a material particular.
(2) In this section—
"relevant section" means section 52, 57, 62, 65 or 73.
83 Conditions of registration
(1) If a National Board decides to register a
person in the health profession for which the Board is established, the
registration is subject to any condition the Board considers necessary or
desirable in the circumstances.
Note.
A failure by a registered health practitioner to comply with a condition of
the practitioner's registration does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
(2) If the National Board decides to register the
person subject to a condition referred to in subsection (1), the Board must
decide a review period for the condition.
84 Notice to be given to applicant
(1) Within 30 days after making the decision under
section 82, the National Board must—
(a) give the applicant written
notice of the Board's decision; and
(b) if the Board decides to register
the applicant, give the applicant a certificate of registration.
(2) If the Board decides not to register the
applicant, or decides to register the applicant in a type of registration
other than the registration applied for or subject to a condition, the notice
under subsection (1)(a) must state—
(a) the reasons for the decision;
and
(b) that the applicant may appeal
against the decision; and
(c) how an application for appeal
may be made and the period within which the application must be made.
App.
85 Failure to decide application
If a National Board fails to decide an application for registration within 90
days after its receipt, or the longer period agreed between the Board and the
applicant, the failure by the Board to make a decision is taken to be a
decision to refuse to register the applicant.
Division 7 Student registration
Subdivision 1 Persons undertaking approved programs of study
86 Definitions
In this Subdivision—
"approved program of study", for a health profession, does not include an
approved program of study that provides a qualification for endorsement of
registration in the profession but does not qualify a person for registration
in the profession.
"particulars" means particulars required to be included in the student
register.
87 National Board must register persons
undertaking approved program of study
(1) The National Board established for a health
profession must decide whether persons who are undertaking an approved program
of study for the health profession must be registered—
(a) for the entire period during
which the persons are enrolled in the approved program of study; or
(b) for the period starting when the
persons begin a particular part of the approved program of study and ending
when the persons complete, or otherwise cease to be enrolled in, the program.
App.
(2) In deciding whether to register persons
undertaking an approved program of study for the entire period of the program
of study or only part of the period, the National Board must have regard
to—
(a) the likelihood that persons
undertaking the approved program of study will, in the course of undertaking
the program, have contact with members of the public; and
(b) if it is likely that the persons
undertaking the approved program of study will have contact with members of
the public—
(i) when in the
approved program of study it is likely the persons will have contact with
members of the public; and
(ii) the
potential risk that contact may pose to members of the public.
88 National Board may ask education provider for
list of persons undertaking approved program of study
(1) For the purposes of registering persons as
required by section 87, a National Board may, at any time by written notice
given to an education provider, ask the provider for the following—
(a) the particulars of all persons
who are undertaking an approved program of study for the health profession for
which the Board is established;
(b) the particulars of all persons
who will be undertaking the part of the approved program of study specified in
the notice.
(2) An education provider given a notice under
subsection (1) must not fail, without reasonable excuse, to comply with the
notice.
(3) A contravention of subsection (2) does not
constitute an offence.
(4) However, if an education provider does not
comply with a notice under subsection (1)—
(a) the National Board that gave the
education provider the notice must publish details of the failure to comply
with the notice on the Board's website; and
(b) the National Agency may, on the
recommendation of the National Board, include a statement about the failure to
comply with the notice in the Agency's annual report.
89 Registration of students
App.
(1) On receipt of the particulars of persons
undertaking an approved program of study, or part of an approved program of
study, under section 88—
(a) the National Board may register
the persons as students in the health profession by entering the persons'
particulars in the student register kept by the Board; or
(b) the National Board may—
(i) by written
notice given to each person, require the person to complete an application for
registration as a student in the form approved by the National Board; and
(ii) on receipt
of the person's application form, register the person as a student in the
health profession by entering the person's particulars in the student register
kept by the Board.
(2) The National Board must not register a person
as a student if the person is undertaking an approved program of study for a
health profession in which the person already holds registration under
Division 6.
(3) The National Board must not require a person
to pay a fee for registration as a student.
(4) As soon as practicable after registering a
person as a student, a National Board must give written notice of the
registration to—
(a) the education provider that
provided the student's particulars to the Board; and
(b) if the Board required the person
to complete an application form for registration, the student.
(5) As soon as practicable after receiving notice
that a student has been registered under subsection (1)(a), the education
provider must give written notice of the registration to the student.
90 Period of student registration
The period of registration for a student—
(a) starts when the student is
registered under section 89; and
(b) expires at the end of the day on
which the student completes, or otherwise ceases to be enrolled in, the
approved program of study.
Subdivision 2 Other persons to be registered as students
91 Education provider to provide lists of persons
App.
(1) If an education provider arranges clinical
training in a health profession for a person who is not enrolled in an
approved program of study for the profession, the education provider must give
the National Board established for the profession written notice about the
arrangement.
(2) Subsection (1) does not apply if the person is
a registered health practitioner who is registered in the health profession in
which the clinical training is being undertaken.
(3) A notice under subsection (1) must
include—
(a) the particulars of the person
undertaking the clinical training, and
(b) particulars of the arrangement
for the person to undertake the clinical training.
(4) On receipt of a notice under subsection
(1)—
(a) the National Board may register
the persons as students in the health profession by entering the persons'
particulars in the student register kept by the Board; or
(b) the National Board may—
(i) by written
notice given to each person, require the person to complete an application for
registration as a student in the form approved by the National Board; and
(ii) on receipt
of the person's application form, register the person as a student in the
health profession by entering the person's particulars in the student register
kept by the Board.
(5) As soon as practicable after registering a
person as a student under subsection (4), a National Board must give written
notice of the registration to the education provider that provided the
student's particulars to the Board.
(6) The National Board must not require a person
to pay a fee for registration as a student.
(7) A student's period of registration under this
section—
(a) starts when the student is
registered under subsection (4); and
App.
(b) expires at the end of the day on
which the person completes, or otherwise ceases to undertake, the period of
clinical training.
Subdivision 3 General provisions applicable to students
92 Notice to be given if student registration
suspended or condition imposed
(1) This section applies if, at any time, any of
the following events occurs—
(a) a person's registration as a
student under this Law is suspended;
(b) a condition is imposed on a
person's registration as a student under this Law or a condition to which a
person's registration is subject is changed or removed;
(c) a National Board accepts an
undertaking from a person who is a student.
(2) The National Board that registered the person
must, as soon as practicable after the event occurs, give written notice of
the event to the education provider with which the person is undertaking the
approved program of study.
(3) If an education provider is given a notice
under subsection (2) about a person, the education provider must, as soon as
practicable after receiving the notice, give notice of the event to any entity
with whom the person is undertaking training as part of the approved program
of study.
93 Report to National Board of cessation of status
as student
(1) This section applies if—
(a) a student completes, or
otherwise ceases to be enrolled in, an approved program of study for a health
profession provided by an education provider; or
(b) a student completes, or
otherwise ceases to undertake, clinical training in a health profession
arranged by an education provider.
App.
(2) The education provider must give written
notice of the student ceasing to be enrolled in the program of study, or to
undertake the clinical training, to the National Board established for the
health profession within 60 days of it occurring.
(3) A contravention of subsection (2) does not
constitute an offence.
(4) However, if an education provider contravenes
subsection (2)—
(a) the National Board must publish
details of the contravention on the Board's website; and
(b) the National Agency may, on the
recommendation of the National Board, include a statement about the
contravention in the Agency's annual report.
Division 8 Endorsement of registration
Subdivision 1 Endorsement in relation to scheduled medicines
94 Endorsement for scheduled medicines
(1) A National Board may, in accordance with an
approval given by the Ministerial Council under section 14, endorse the
registration of a registered health practitioner registered by the Board as
being qualified to administer, obtain, possess, prescribe, sell, supply or use
a scheduled medicine or class of scheduled medicines if the
practitioner—
(a) holds either of the following
qualifications relevant to the endorsement—
(i) an approved
qualification;
(ii) another
qualification that, in the Board's opinion, is substantially equivalent to, or
based on similar competencies to, an approved qualification; and
(b) complies with any approved
registration standard relevant to the endorsement.
Note.
App.
The endorsement of a health practitioner's registration under this section
indicates the practitioner is qualified to administer, obtain, possess,
prescribe, sell, supply or use the scheduled medicine or class of medicines
specified in the endorsement but does not authorise the practitioner to do so.
The authorisation of a health practitioner to administer, obtain, possess,
prescribe, sell, supply or use scheduled medicines in a participating
jurisdiction will be provided for by or under another Act of that
jurisdiction.
Health practitioners registered in certain health professions will be
authorised to administer, obtain, possess, prescribe, sell, supply or use
scheduled medicines by or under an Act of a participating jurisdiction without
the need for the health practitioners to hold an endorsement under this Law.
(2) An endorsement under subsection (1) must
state—
(a) the scheduled medicine or class
of scheduled medicines to which the endorsement relates; and
(b) whether the registered health
practitioner is qualified to administer, obtain, possess, prescribe, sell,
supply or use the scheduled medicine or class of scheduled medicines; and
(c) if the endorsement is for a
limited period, the date the endorsement expires.
Subdivision 2 Endorsement in relation to nurse practitioners
95 Endorsement as nurse practitioner
(1) The Nursing and Midwifery Board of Australia
may endorse the registration of a registered health practitioner whose name is
included in the Register of Nurses as being qualified to practise as a nurse
practitioner if the practitioner—
(a) holds either of the following
qualifications relevant to the endorsement—
(i) an approved
qualification;
(ii) another
qualification that, in the Board's opinion, is substantially equivalent to, or
based on similar competencies to, an approved qualification; and
(b) complies with any approved
registration standard relevant to the endorsement.
(2) An endorsement under subsection (1) must
state—
(a) that the registered health
practitioner is entitled to use the title “nurse practitioner”;
and
App.
(b) any conditions applicable to the
practice by the registered health practitioner as a nurse practitioner.
Subdivision 3 Endorsement in relation to midwife practitioners
96 Endorsement as midwife practitioner
(1) The Nursing and Midwifery Board of Australia
may endorse the registration of a registered health practitioner whose name is
included in the Register of Midwives as being qualified to practise as a
midwife practitioner if the practitioner—
(a) holds either of the following
qualifications relevant to the endorsement—
(i) an approved
qualification;
(ii) another
qualification that, in the Board's opinion, is substantially equivalent to, or
based on similar competencies to, an approved qualification; and
(b) complies with any approved
registration standard relevant to the endorsement.
App.
(2) An endorsement under subsection (1) must
state—
(a) that the registered health
practitioner is entitled to use the title “midwife practitioner”;
and
(b) any conditions applicable to the
practice by the registered health practitioner as a midwife practitioner.
Subdivision 4 Endorsement in relation to acupuncture
97 Endorsement for acupuncture
(1) A National Board may endorse the registration
of a registered health practitioner registered by the Board as being qualified
to practise as an acupuncturist if the practitioner—
(a) holds either of the following
qualifications relevant to the endorsement—
(i) an approved
qualification;
(ii) another
qualification that, in the Board's opinion, is substantially equivalent to, or
based on similar competencies to, an approved qualification; and
(b) complies with an approved
registration standard relevant to the endorsement.
(2) An endorsement under subsection (1) must
state—
(a) that the registered health
practitioner is entitled to use the title “acupuncturist”; and
(b) any conditions applicable to the
practice of acupuncture by the registered health practitioner.
Subdivision 5 Endorsements in relation to approved areas of
practice
98 Endorsement for approved area of practice
(1) A National Board established for a health
profession may, in accordance with an approval given by the Ministerial
Council under section 15, endorse the registration of a registered health
practitioner registered by the Board as being qualified to practise in an
approved area of practice for the health profession if the practitioner—
App.
(a) holds either of the following
qualifications relevant to the endorsement—
(i) an approved
qualification;
(ii) another
qualification that, in the Board's opinion, is substantially equivalent to, or
based on similar competencies to, an approved qualification; and
(b) complies with an approved
registration standard relevant to the endorsement.
(2) An endorsement under subsection (1) must
state—
(a) the approved area of practice to
which the endorsement relates; and
(b) any conditions applicable to the
practice by the registered health practitioner in the approved area of
practice.
Subdivision 6 Application for endorsement
99 Application for endorsement
(1) An individual may apply to a National Board
for endorsement of the individual's registration.
(2) The application must—
(a) be in the form approved by the
National Board; and
(b) be accompanied by the relevant
fee; and
(c) be accompanied by any other
information reasonably required by the Board.
(3) For the purposes of subsection (2)(c), the
information a National Board may require an applicant to provide
includes—
(a) evidence of the qualifications
in the health profession the applicant believes qualifies the applicant for
endorsement; and
(b) evidence of successful
completion of any period of supervised practice required by an approved
registration standard; and
(c) if the applicant is required to
complete an examination or assessment set by or on behalf of the Board,
evidence of the successful completion of the examination or assessment.
100 Boards' other powers before deciding
application for endorsement
(1) Before deciding an application for
endorsement, a National Board may—
(a) investigate the applicant,
including, for example, by asking an entity—
(i) to give the
Board information about the applicant; or
(ii) to verify
information or a document that relates to the applicant; or
(b) by written notice to the
applicant, require the applicant to give the Board, within a reasonable time
stated in the notice, further information or a document the Board reasonably
requires to decide the application; or
(c) by written notice to the
applicant, require the applicant to attend before the Board, within a
reasonable time stated in the notice and at a reasonable place, to answer any
questions of the Board relating to the application; or
(d) by written notice to the
applicant, require the applicant to undergo a written, oral or practical
examination, within a reasonable time stated in the notice and at a reasonable
place.
(2) The purpose of an examination under subsection
(1)(d) must be to assess the applicant's ability to practise the health
profession in accordance with the endorsement sought.
App.
(3) The applicant is taken to have withdrawn the
application if, within the stated time, the applicant does not comply with a
requirement under subsection (1).
101 Applicant may make submissions about proposed
refusal of application or imposition of condition
(1) If, after considering an application for
endorsement of a registration, a National Board is proposing to refuse to
endorse the applicant's registration or to endorse the applicant's
registration subject to a condition, the Board must give the applicant written
notice of the proposal.
(2) The notice must—
(a) state the reasons for the
proposal; and
(b) invite the applicant to make a
written or verbal submission to the Board by the date stated in the notice,
being not less than 30 days after the day the notice is given to the
applicant, about the proposal.
102 Decision about application
(1) After considering an application for
endorsement and any submissions made in accordance with a notice under section
101, a National Board must decide to endorse, or refuse to endorse, the
applicant's registration as sought.
(2) Without limiting subsection (1), a National
Board may refuse to endorse an applicant's registration if—
(a) the applicant is not qualified
for the endorsement under a relevant section; or
(b) the Board considers the
applicant is not competent to practise the health profession in accordance
with the endorsement sought.
(3) In this section—
"relevant section" means section 94, 95, 96, 97 or 98.
103 Conditions of endorsement
App.
(1) If a National Board decides to endorse the
applicant's registration under section 102, the Board may decide to impose on
the endorsement the conditions the Board considers necessary or desirable in
the circumstances.
Note.
A failure by a registered health practitioner to comply with a condition of
the practitioner's registration does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
(2) If the National Board decides to impose a
condition on the endorsement, the Board must also decide a review period for
the condition.
104 Notice of decision to be given to applicant
(1) As soon as practicable after making the
decision under section 102, the National Board must—
(a) give the applicant written
notice of the Board's decision; and
(b) if the Board decides to endorse
the applicant's registration, give the applicant a new certificate of
registration.
(2) If the Board decides not to endorse the
applicant's registration or decides to endorse the applicant's registration
subject to a condition, the notice under subsection (1)(a) must state—
(a) the reasons for the decision;
and
(b) that the applicant may appeal
against the decision; and
(c) how an application for appeal
may be made and the period within which the application must be made.
105 Period of endorsement
If a National Board decides to endorse a registered health practitioner's
registration, the endorsement—
(a) starts when the Board makes the
decision; and
(b) expires when the practitioner's
registration ends.
106 Failure to decide application for endorsement
If a National Board fails to decide an application for endorsement within 90
days after its receipt, or the longer period agreed between the Board and the
applicant, the failure by the Board to make a decision is taken to be a
decision to refuse to endorse the applicant's registration.
Division 9 Renewal of registration
107 Application for renewal of registration or
endorsement
App.
(1) A registered health practitioner may apply to
the National Board that registered the practitioner for renewal of the health
practitioner's registration.
(2) An application for renewal of a registered
health practitioner's registration must be made not later than one month after
the practitioner's period of registration ends.
(3) If the registered health practitioner's
registration has been endorsed by the National Board, the application for
renewal of the practitioner's registration is taken to also be an application
for a renewal of the endorsement.
(4) The application for renewal of registration
must—
(a) be in the form approved by the
National Board; and
(b) be accompanied by the relevant
fee; and
(c) if the application for renewal
is made after the registered health practitioner's period of registration
ends, be accompanied by the relevant fee for a late application; and
(d) be accompanied by the annual
statement required under section 109; and
(e) be accompanied by any other
information reasonably required by the Board.
108 Registration taken to continue in force
(1) If a registered health practitioner applies
under section 107 to renew the practitioner's registration, the applicant's
registration, including any endorsement of the registration, is taken to
continue in force from the day it would, apart from this section, have ended
until—
(a) if the National Board decides to
renew the applicant's registration, the day a new certificate of registration
is issued to the applicant; or
(b) if the National Board decides to
refuse to renew the applicant's registration, the day the applicant is given
notice of the decision.
(2) If a health practitioner does not apply to
renew the practitioner's registration before the practitioner's period of
registration ends, the registration, including any endorsement of the
registration, is taken to continue in force until—
App.
(a) the end of the day that is one
month after the day the period of registration would, apart from this
subsection, have ended; or
(b) if the health practitioner
applies for renewal of the registration not later than one month after the
practitioner's period of registration ends, the day referred to in
subsection (1)(a) or (b).
(3) Subsection (1) or (2) does not apply if the
registration is earlier cancelled under this Law.
109 Annual statement
(1) An application for renewal of registration
must include or be accompanied by a statement that includes the
following—
(a) a declaration by the applicant
that—
(i) the
applicant does not have an impairment; and
(ii) the
applicant has met any recency of practice requirements stated in an approved
registration standard for the health profession; and
(iii) the
applicant has completed the continuing professional development the applicant
was required by an approved registration standard to undertake during the
applicant's preceding period of registration; and
(iv) the
applicant has not practised the health profession during the preceding period
of registration without appropriate professional indemnity insurance
arrangements being in place in relation to the applicant; and
(v) if the
applicant's registration is renewed the applicant will not practise the health
profession unless appropriate professional indemnity insurance arrangements
are in place in relation to the applicant;
(b) details of any change in the
applicant's criminal history that occurred during the applicant's preceding
period of registration;
Note.
App.
See the definition of criminal history which applies to offences in
participating jurisdictions and elsewhere, including outside Australia.
(c) if the applicant's right to
practise at a hospital or another facility at which health services are
provided was withdrawn or restricted during the applicant's preceding period
of registration because of the applicant's conduct, professional performance
or health, details of the withdrawal or restriction of the right to practise;
(d) if the applicant's billing
privileges were withdrawn or restricted under the Medicare Australia Act 1973
of the Commonwealth during the applicant's preceding period of registration
because of the applicant's conduct, professional performance or health,
details of the withdrawal or restriction of the privileges;
(e) details of any complaint made
about the applicant to a registration authority or another entity having
functions relating to professional services provided by health practitioners
or the regulation of health practitioners;
(f) any other information required
by an approved registration standard.
(2) Subsection (1)(a)(ii), (iii) and (iv), (c) and
(d) does not apply to an applicant who is applying for the renewal of
non-practising registration.
110 National Board's powers before making decision
Before deciding an application for renewal of registration, a National Board
may exercise a power under section 80 as if the application were an
application for registration made under section 77.
111 Applicant may make submissions about proposed
refusal of application for renewal or imposition of condition
(1) If, after considering an application for
renewal of registration, a National Board is proposing to refuse to renew the
applicant's registration or to renew the applicant's registration subject to a
new condition, the Board must give the applicant written notice of the
proposal.
App.
(2) The notice must—
(a) state the reasons for the
proposal; and
(b) invite the applicant to make a
written or verbal submission to the Board by the date stated in the notice,
being not less than 30 days after the day the notice is given to the
applicant, about the proposal.
112 Decision about application for renewal
(1) After considering an application for renewal
of registration and any submissions made in accordance with a notice under
section 111, a National Board may decide to renew, or refuse to renew, the
applicant's registration or the endorsement.
(2) The National Board may refuse to renew the
applicant's registration or any endorsement on the applicant's
registration—
(a) on any ground on which the Board
could refuse to grant the registration or endorsement under section 82 or 102
if the application were for a grant of registration or endorsement; or
(b) if the applicant contravened any
condition to which the applicant's previous registration or endorsement was
subject; or
(c) if, during the applicant's
previous period of registration, the applicant failed to have appropriate
professional indemnity insurance arrangements or failed to complete the
continuing professional development required by an approved registration
standard for the profession; or
(d) if a statement made by the
applicant in the applicant's annual statement was false or misleading in a
material particular; or
(e) if the application is for the
renewal of provisional registration and the applicant's provisional
registration has previously been renewed twice; or
(f) if the application is for the
renewal of limited application and the applicant's limited registration has
previously been renewed 3 times.
(3) If the National Board renews a registration,
including any endorsement on the registration, the registration or endorsement
is subject to—
(a) any condition to which the
registration was subject immediately before the renewal; and
App.
(b) any condition the Board
considers necessary or desirable in the circumstances
Note.
A failure by a registered health practitioner to comply with a condition of
the practitioner's registration does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
(4) If the National Board decides to renew a
registered health practitioner's registration or an endorsement of the
registration subject to a condition under subsection (3)(b), the Board must
decide a review period for the condition.
(5) If a National Board decides to refuse to renew
an applicant's registration or the endorsement of the applicant's
registration, or to renew the registration or the endorsement subject to a
condition under subsection (3)(b), the Board must give the applicant a notice
that states—
(a) the decision made by the Board;
and
(b) the reasons for the decision;
and
(c) that the applicant may appeal
against the decision; and
(d) how an application for appeal
may be made and the period within which the application must be made.
(6) A registration, including any endorsement of
the registration, renewed under this Division—
(a) starts on the day immediately
after the applicant's previous period of registration ends or ended; and
(b) expires at the end of the day
that is 12 months after the day it starts.
Division 10 Title and practice protections
Subdivision 1 Title protections
113 Restriction on use of protected titles
(1) A person must not knowingly or
recklessly—
(a) take or use a title in the Table
to this section, in a way that could be reasonably expected to induce a belief
the person is registered under this Law in the health profession listed beside
the title in the Table, unless the person is registered in the profession, or
(b) take or use a prescribed title
for a health profession, in a way that could be reasonably expected to induce
a belief the person is registered under this Law in the profession, unless the
person is registered in the profession.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
(2) A person must not knowingly or
recklessly—
(a) take or use a title in the Table
in relation to another person (the second person ), in a way that could be
reasonably expected to induce a belief the second person is registered under
this Law in the health profession listed beside the title in the Table, unless
the second person is registered in the profession; or
(b) take or use a prescribed title
for a health profession in relation to another person (the second person ), in
a way that could be reasonably expected to induce a belief the second person
is registered under this Law in the profession, unless the second person is
registered in the profession.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
(3) Subsections (1) and (2) apply whether or not
the title is taken or used with or without any other words and whether in
English or any other language.
App.
Table—Protected Titles
Profession
Title
Aboriginal and Torres Strait Islander Health Practice
Aboriginal and Torres Strait Islander health practitioner, Aboriginal health
practitioner, Torres Strait Islander health practitioner
Chinese Medicine
Chinese medicine practitioner, Chinese herbal dispenser, Chinese herbal
medicine practitioner, Oriental medicine practitioner, acupuncturist
Chiropractic
chiropractor
Dental
dentist, dental therapist, dental hygienist, dental prosthetist, oral health
therapist
Medical
medical practitioner
Medical Radiation Practice
medical radiation practitioner, diagnostic radiographer, medical imaging
technologist, radiographer, nuclear medicine scientist, nuclear medicine
technologist, radiation therapist
(1) A registered health practitioner whose
registration is endorsed under section 97 by a National Board as being
qualified to practise as an acupuncturist does not commit an offence against
section 113(1)(a) merely because the individual takes or uses the title
“acupuncturist”.
(2) A person does not commit an offence against
section 113(2)(a) merely because the person takes or uses the title
“acupuncturist” in relation to another person who is a registered
health practitioner whose registration is endorsed under section 97 by a
National Board as being qualified to practise as an acupuncturist.
115 Restriction on use of specialist titles
(1) A person must not knowingly or recklessly take
or use—
(a) the title “dental
specialist” unless the person is registered under this Law in a
recognised specialty in the dentists division of the dental profession; or
(b) the title “medical
specialist” unless the person is registered in a recognised specialty in
the medical profession; or
(c) a specialist title for a
recognised specialty unless the person is registered under this Law in the
specialty.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
(2) A person must not knowingly or recklessly take
or use—
App.
(a) the title “dental
specialist” in relation to another person unless the other person is
registered under this Law in a recognised specialty in the dentists division
of the dental profession; or
(b) the title “medical
specialist” in relation to another person unless the person is
registered in a recognised specialty in the medical profession; or
(c) a specialist title for a
recognised specialty in relation to another person unless the person is
registered under this Law in the specialty.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
(3) Subsection (1) applies whether or not the
title is taken or used with or without any other words and whether in English
or any other language.
116 Claims by persons as to registration as health
practitioner
App.
(1) A person who is not a registered health
practitioner must not knowingly or recklessly—
(a) take or use the title of
“registered health practitioner”, whether with or without any
other words; or
(b) take or use a title, name,
initial, symbol, word or description that, having regard to the circumstances
in which it is taken or used, indicates or could be reasonably understood to
indicate—
(i) the person
is a health practitioner; or
(ii) the person
is authorised or qualified to practise in a health profession; or
(c) claim to be registered under
this Law or hold himself or herself out as being registered under this Law; or
(d) claim to be qualified to
practise as a health practitioner.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
(2) A person must not knowingly or
recklessly—
(a) take or use the title of
“registered health practitioner”, whether with or without any
other words, in relation to another person who is not a registered health
practitioner; or
(b) take or use a title, name,
initial, symbol, word or description that, having regard to the circumstances
in which it is taken or used, indicates or could be reasonably understood to
indicate—
(i) another
person is a health practitioner if the other person is not a health
practitioner; or
(ii) another
person is authorised or qualified to practise in a health profession if the
other person is not a registered health practitioner in that health
profession; or
(c) claim another person is
registered under this Law, or hold the other person out as being registered
under this Law, if the other person is not registered under this Law; or
(d) claim another person is
qualified to practise as a health practitioner if the other person is not a
registered health practitioner.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
117 Claims by persons as to registration in
particular profession or division
(1) A registered health practitioner must not
knowingly or recklessly—
App.
(a) claim to be registered under
this Law in a health profession or a division of a health profession in which
the practitioner is not registered, or hold himself or herself out as being
registered in a health profession or a division of a health profession if the
person is not registered in that health profession or division; or
(b) claim to be qualified to
practise as a practitioner in a health profession or a division of a health
profession in which the practitioner is not registered; or
(c) take or use any title that could
be reasonably understood to induce a belief the practitioner is registered
under this Law in a health profession or a division of a health profession in
which the practitioner is not registered.
(2) A contravention of subsection (1) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
(3) A person must not knowingly or
recklessly—
(a) claim another person is
registered under this Law in a health profession or a division of a health
profession in which the other person is not registered, or hold the other
person out as being registered in a health profession or a division of a
health profession if the other person is not registered in that health
profession or division; or
(b) claim another person is
qualified to practise as a health practitioner in a health profession or
division of a health profession in which the other person is not registered;
or
(c) take or use any title in
relation to another person that could be reasonably understood to induce a
belief the other person is registered under this Law in a health profession or
a division of a health profession in which the person is not registered.
App.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
Note.
A contravention of this subsection by a registered health practitioner may
also constitute unprofessional conduct for which health, conduct or
performance action may be taken.
118 Claims by persons as to specialist
registration
App.
(1) A person who is not a specialist health
practitioner must not knowingly or recklessly—
(a) take or use the title of
“specialist health practitioner”, whether with or without any
other words; or
(b) take or use a title, name,
initial, symbol, word or description that, having regard to the circumstances
in which it is taken or used, indicates or could be reasonably understood to
indicate—
(i) the person
is a specialist health practitioner; or
(ii) the person
is authorised or qualified to practise in a recognised specialty; or
(c) claim to be registered under
this Law in a recognised specialty or hold himself or herself out as being
registered under this Law in a recognised specialty; or
(d) claim to be qualified to
practise as a specialist health practitioner.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
(2) A person must not knowingly or
recklessly—
(a) take or use the title of
“specialist health practitioner”, whether with or without any
other words, in relation to another person who is not a specialist health
practitioner; or
(b) take or use a title, name,
initial, symbol, word or description in relation to another person that,
having regard to the circumstances in which it is taken or used, indicates or
could be reasonably understood to indicate—
(i) the other
person is a specialist health practitioner; or
(ii) the other
person is authorised or qualified to practise in a recognised specialty; or
(c) claim another person is
registered under this Law in a recognised specialty or hold the other person
out as being registered under this Law in a recognised specialty if the other
person is not registered in that recognised specialty; or
(d) claim another person is
qualified to practise as a specialist health practitioner if the person is not
a specialist health practitioner.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
Note.
A contravention of this section by a registered health practitioner may also
constitute unprofessional conduct for which health, conduct or performance
action may be taken.
119 Claims about type of registration or
registration in recognised specialty
(1) A registered health practitioner must not
knowingly or recklessly—
(a) claim to hold a type of
registration or endorsement under this Law that the practitioner does not hold
or hold himself or herself out as holding a type of registration or
endorsement if the practitioner does not hold that type of registration; or
(b) claim to be qualified to hold a
type of registration or endorsement the practitioner does not hold; or
(c) claim to hold specialist
registration under this Law in a recognised specialty in which the
practitioner does not hold specialist registration or hold himself or herself
out as holding specialist registration in a recognised specialty if the person
does not hold specialist registration in that specialty; or
App.
(d) claim to be qualified to
practise as a specialist health practitioner in a recognised specialty in
which the practitioner is not registered.
(2) A contravention of subsection (1) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
(3) A person must not knowingly or
recklessly—
(a) claim another person holds a
type of registration or endorsement under this Law that the other person does
not hold or hold the other person out as holding a type of registration or
endorsement if the practitioner does not hold that type of registration or
endorsement; or
(b) claim another person is
qualified to hold a type of registration or endorsement that the other person
does not hold; or
(c) claim another person holds
specialist registration under this Law in a recognised specialty which the
other person does not hold or hold the other person out as holding specialist
registration in a recognised specialty if the other person does not hold
specialist registration in that specialty; or
(d) claim another person is
qualified to practise in a recognised specialty in which the other person is
not registered.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
Note.
A contravention of this subsection by a registered health practitioner may
also constitute unprofessional conduct for which health, conduct or
performance action may be taken.
120 Registered health practitioner registered on
conditions
App.
(1) A registered health practitioner who is
registered on conditions must not knowingly or recklessly claim, or hold
himself or herself out, to be registered without the conditions or any
conditions.
(2) A contravention of subsection (1) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
Subdivision 2 Practice protections
121 Restricted dental acts
(1) A person must not carry out a restricted
dental act unless the person—
(a) is registered in the dental
profession or medical profession and carries out the restricted dental act in
accordance with any requirements specified in an approved registration
standard; or
App.
(b) is a student who carries out the
restricted dental act in the course of activities undertaken as part of—
(i) an approved
program of study for the dental profession or medical profession; or
(ii) clinical
training in the dental profession or medical profession; or
(c) carries out the restricted
dental act in the course of carrying out technical work on the written order
of a person registered in the dentists or dental prosthetists division of the
dental profession; or
(d) is a person, or a member of a
class of persons, prescribed under a regulation as being authorised to carry
out the restricted dental act or restricted dental acts generally.
Maximum penalty—$30,000.
(2) In this section—
"restricted dental act" means any of the following acts—
(a) performing any irreversible
procedure on the human teeth or jaw or associated structures;
(b) correcting malpositions of the
human teeth or jaw or associated structures;
(c) fitting or intra-orally
adjusting artificial teeth or corrective or restorative dental appliances for
a person;
(d) performing any irreversible
procedure on, or the giving of any treatment or advice to, a person that is
preparatory to or for the purpose of fitting, inserting, adjusting, fixing,
constructing, repairing or renewing artificial dentures or a restorative
dental appliance.
"technical work" means the mechanical construction or the renewal or repair of
artificial dentures or restorative dental appliances.
122 Restriction on prescription of optical
appliances
App.
(1) A person must not prescribe an optical
appliance unless—
(a) the person is an optometrist or
medical practitioner; or
(b) the appliance is spectacles and
the person is an orthoptist who—
(i) prescribes
the spectacles in the course of carrying out duties at a public health
facility; or
(ii) prescribes
the spectacles under the supervision of an optometrist or medical
practitioner; or
(iii)
prescribes the spectacles, on the written referral of an optometrist or
medical practitioner, to a person who has had, within the 12 months before the
referral, an ocular health examination conducted by an optometrist or medical
practitioner; or
(c) the person is a person, or a
member of a class of persons, prescribed under a regulation as being
authorised to prescribe an optical appliance of that type or to prescribe
optical appliances generally.
Maximum penalty—$30,000.
(2) In this section—
"optical appliance" means—
(a) any appliance designed to
correct, remedy or relieve any refractive abnormality or defect of sight,
including, for example, spectacle lenses; or
(b) contact lenses, whether or not
designed to correct, remedy or relieve any refractive abnormality or defect of
sight.
"optometrist" means a person registered in the optometry profession.
"orthoptist" means a person whose name is recorded in the Register of
Orthoptists kept by the Australian Orthoptists Registration Body Pty Ltd (ACN
095 11 7 678).
123 Restriction on spinal manipulation
(1) A person must not perform manipulation of the
cervical spine unless the person—
(a) is registered in an appropriate
health profession; or
(b) is a student who performs
manipulation of the cervical spine in the course of activities undertaken as
part of—
(i) an approved
program of study in an appropriate health profession; or
(ii) clinical
training in an appropriate health profession; or
(c) is a person, or a member of a
class of persons, prescribed under a regulation as being authorised to perform
manipulation of the cervical spine.
Maximum penalty—$30,000.
App.
(2) In this section—
"appropriate health profession" means any of the following health
professions—
(a) chiropractic;
(b) osteopathy;
(c) medical;
(d) physiotherapy.
"manipulation of the cervical spine" means moving the joints of the cervical
spine beyond a person's usual physiological range of motion using a high
velocity, low amplitude thrust.
Division 11 Miscellaneous
Subdivision 1 Certificates of registration
124 Issue of certificate of registration
(1) This section applies if—
(a) a National Board decides to
register an individual in the health profession for which the Board is
established; or
(b) a National Board decides to
renew an individual's registration in the health profession for which the
Board is established; or
(c) a National Board or an
adjudication body decides to impose, change or remove a condition on a
registered health practitioner's registration or otherwise change the
practitioner's registration in a material way; or
(d) a National Board or an
adjudication body decides to accept an undertaking from a registered health
practitioner or to change or revoke an undertaking given by the practitioner;
or
(e) a National Board decides to
endorse a health practitioner's registration.
(2) The National Board must, as soon as
practicable after the decision is made, give the registered health
practitioner a certificate of registration in the form decided by the Board.
(3) A certificate of registration must include the
following—
(a) the name of the registered
health practitioner;
(b) the type of registration granted
and, if the registration is endorsed, the type of endorsement granted;
(c) the date the registration or
endorsement was granted;
(d) the division of the register, if
any, in which the practitioner is registered;
(e) any condition to which the
registration or endorsement is subject;
(f) any undertaking given by the
practitioner to the National Board;
(g) the date the registration
expires;
(h) any other information the Board
considers appropriate.
Subdivision 2 Review of conditions and undertakings
125 Changing or removing conditions or undertaking
on application by registered health practitioner or student
App.
(1) A registered health practitioner or student
may apply to a National Board that registered the practitioner or
student—
(a) for a registered health
practitioner—
(i) to change
or remove a condition imposed on the practitioner's registration or
endorsement; or
(ii) to change
or revoke an undertaking given by the practitioner; or
(b) for a student—
(i) to change
or remove a condition imposed on the student's registration; or
(ii) to change
or revoke an undertaking given by the student to the Board.
(2) However, the registered health practitioner or
student may not make an application—
(a) during a review period applying
to the condition or undertaking, unless the practitioner or student reasonably
believes there has been a material change in the practitioner's or student's
circumstances; or
(b) for a condition imposed by an
adjudication body for a co-regulatory jurisdiction, unless the adjudication
body decided, when imposing the condition, that this Subdivision applied to
the condition.
App.
(3) An application under subsection (1)
must—
(a) be in the form approved by the
National Board; and
(b) be accompanied by any other
information reasonably required by the Board.
(4) For the purposes of deciding the application,
the National Board may exercise a power under section 80 as if the application
were an application for registration as a registered health practitioner.
(5) The National Board must decide to grant the
application or refuse to grant the application.
(6) As soon as practicable after making the
decision under subsection (5), the National Board must give the registered
health practitioner or student written notice of the Board's decision.
(7) If the National Board decides to refuse to
grant the application, the notice must state—
(a) the decision made by the Board;
and
(b) that the registered health
practitioner or student may appeal against the decision; and
(c) how an application for appeal
may be made and the period within which the application must be made.
126 Changing conditions on Board's initiative
App.
(1) This section applies if a National Board
reasonably believes it is necessary to change a condition imposed on the
registration of a registered health practitioner or student registered by the
Board.
(2) The National Board must give the registered
health practitioner or student a written notice stating—
(a) that the Board proposes to
change the condition; and
(b) how the Board proposes to change
the condition; and
(c) the reason for the proposed
change; and
(d) that the practitioner or student
may, within 30 days after receipt of the notice, make written or verbal
submissions to the Board about why the condition should not be changed.
(3) However, the condition may not be
changed—
(a) during a review period applying
to the condition, unless the National Board reasonably believes there has been
a material change in the registered health practitioner's or student's
circumstances; or
(b) if the condition was imposed by
an adjudication body for a co-regulatory jurisdiction, unless the adjudication
body decided, when imposing the condition, that this Subdivision applied to
the condition.
(4) The registered health practitioner or student
may make written or verbal submissions about the proposed change to the
condition as stated in the notice.
(5) The National Board must consider any
submissions made under subsection (4) and decide whether or not to change the
condition.
(6) As soon as practicable after making its
decision the National Board must give written notice of the decision to the
registered health practitioner or student.
(7) If the National Board decides to change the
condition, the notice must state—
(a) the decision made by the Board;
and
(b) that the registered health
practitioner or student may appeal against the decision; and
(c) how an application for appeal
may be made and the period within which the application must be made.
127 Removal of condition or revocation of
undertaking
(1) This section applies if a National Board
reasonably believes—
(a) that a condition imposed on the
registration of a registered health practitioner or student registered by the
Board is no longer necessary; or
(b) that an undertaking given to the
Board by a health practitioner or student registered by the Board is no longer
necessary.
(2) The National Board may decide to remove the
condition or revoke the undertaking.
(3) However, the condition or undertaking may not
be removed or revoked—
(a) during a review period applying
to the condition or undertaking, unless the National Board reasonably believes
there has been a material change in the registered health practitioner's or
student's circumstances; or
(b) for a condition imposed by an
adjudication body for a co-regulatory jurisdiction, unless the adjudication
body decided, when imposing the condition, that this Subdivision applied to
the condition.
(4) As soon as practicable after making the
decision the National Board must give notice of the decision to the registered
health practitioner or student.
(5) The decision takes effect on the date stated
in the notice.
Subdivision 3 Obligations of registered health practitioners and
students
128 Continuing professional development
App.
(1) A registered health practitioner must
undertake the continuing professional development required by an approved
registration standard for the health profession in which the practitioner is
registered.
(2) A contravention of subsection (1) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
(3) In this section—
"registered health practitioner" does not include a registered health
practitioner who holds non-practising registration in the profession.
129 Professional indemnity insurance arrangements
(1) A registered health practitioner must not
practise the health profession in which the practitioner is registered unless
appropriate professional indemnity insurance arrangements are in force in
relation to the practitioner's practice of the profession.
(2) A National Board may, at any time by written
notice, require a registered health practitioner registered by the Board to
give the Board evidence of the appropriate professional indemnity insurance
arrangements that are in force in relation to the practitioner's practice of
the profession.
(3) A registered health practitioner must not,
without reasonable excuse, fail to comply with a written notice given to the
practitioner under subsection (2).
(4) A contravention of subsection (1) or (3) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
(5) In this section—
"registered health practitioner" does not include a registered health
practitioner who holds non-practising registration in the profession.
130 Registered health practitioner or student to
give National Board notice of certain events
(1) A registered health practitioner or student
must, within 7 days after becoming aware that a relevant event has occurred in
relation to the practitioner or student, give the National Board that
registered the practitioner or student written notice of the event.
(2) A contravention of subsection (1) by a
registered health practitioner or student does not constitute an offence but
may constitute behaviour for which health, conduct or performance action may
be taken.
(3) In this section—
"relevant event" means—
App.
(a) in relation to a registered
health practitioner—
(i) the
practitioner is charged, whether in a participating jurisdiction or elsewhere,
with an offence punishable by 12 months imprisonment or more; or
(ii) the
practitioner is convicted of or the subject of a finding of guilt for an
offence, whether in a participating jurisdiction or elsewhere, punishable by
imprisonment; or
(iii)
appropriate professional indemnity insurance arrangements are no longer in
place in relation to the practitioner's practice of the profession; or
(iv) the
practitioner's right to practise at a hospital or another facility at which
health services are provided is withdrawn or restricted because of the
practitioner's conduct, professional performance or health; or
(v) the
practitioner's billing privileges are withdrawn or restricted under the
Medicare Australia Act 1973 of the Commonwealth because of the practitioner's
conduct, professional performance or health; or
(vi) the
practitioner's authority under a law of a State or Territory to administer,
obtain, possess, prescribe, sell, supply or use a scheduled medicine or class
of scheduled medicines is cancelled or restricted; or
(vii) a
complaint is made about the practitioner to an entity referred to in section
219(1)(a) to (e); or
(viii) the
practitioner's registration under the law of another country that provides for
the registration of health practitioners is suspended or cancelled or made
subject to a condition or another restriction; or
(b) in relation to a student—
(i) the student
is charged with an offence punishable by 12 months imprisonment or more; or
(ii) the
student is convicted of or the subject of a finding of guilt for an offence
punishable by imprisonment; or
App.
(iii) the
student's registration under the law of another country that provides for the
registration of students has been suspended or cancelled.
131 Change in principal place of practice, address
or name
(1) A registered health practitioner must, within
30 days of any of the following changes happening, give the National Board
that registered the practitioner written notice of the change and any evidence
providing proof of the change required by the Board—
(a) a change in the practitioner's
principal place of practice;
(b) a change in the address provided
by the registered health practitioner as the address the Board should use in
corresponding with the practitioner;
(c) a change in the practitioner's
name.
(2) A contravention of subsection (1) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
132 National Board may ask registered health
practitioner for employer's details
(1) A National Board may, at any time by written
notice given to a health practitioner registered by the Board, ask the
practitioner to give the Board the following information—
(a) information about whether the
practitioner is employed by another entity;
(b) if the practitioner is employed
by another entity—
(i) the name of
the practitioner's employer; and
(ii) the
address and other contact details of the practitioner's employer.
(2) The registered health practitioner must not,
without reasonable excuse, fail to comply with the notice.
(3) A contravention of subsection (2) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
Subdivision 4 Advertising
133 Advertising
App.
(1) A person must not advertise a regulated health
service, or a business that provides a regulated health service, in a way
that—
(a) is false, misleading or
deceptive or is likely to be misleading or deceptive; or
(b) offers a gift, discount or other
inducement to attract a person to use the service or the business, unless the
advertisement also states the terms and conditions of the offer; or
(c) uses testimonials or purported
testimonials about the service or business; or
(d) creates an unreasonable
expectation of beneficial treatment; or
(e) directly or indirectly
encourages the indiscriminate or unnecessary use of regulated health services.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) A person does not commit an offence against
subsection (1) merely because the person, as part of the person's business,
prints or publishes an advertisement for another person.
(3) In proceedings for an offence against this
section, a court may have regard to a guideline approved by a National Board
about the advertising of regulated health services.
(4) In this section—
"regulated health service" means a service provided by, or usually provided
by, a health practitioner.
Subdivision 5 Board's powers to check identity and criminal
history
134 Evidence of identity
(1) A National Board may, at any time, require a
registered health practitioner to provide evidence of the practitioner's
identity.
(2) A requirement under subsection (1) must be
made by written notice given to the registered health practitioner.
App.
(3) The registered health practitioner must not,
without reasonable excuse, fail to comply with the notice.
(4) A contravention of subsection (3) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which health, conduct or performance action may be
taken.
(5) If a registered health practitioner gives a
National Board a document as evidence of the practitioner's identity under
this section, the Board may, by written notice, ask the entity that issued the
document—
(a) to confirm the validity of the
document; or
(b) to give the Board other
information relevant to the practitioner's identity.
(6) An entity given a notice under subsection (5)
is authorised to provide the information requested.
135 Criminal history check
App.
(1) A National Board may, at any time, obtain a
written report about a registered health practitioner's criminal history from
any of the following—
(a) CrimTrac;
(b) a police commissioner;
(c) an entity in a jurisdiction
outside Australia that has access to records about the criminal history of
persons in that jurisdiction.
(2) Without limiting subsection (1), a report may
be obtained under that subsection—
(a) to check a statement made by a
registered health practitioner in the practitioner's application for renewal
of registration; or
(b) as part of an audit carried out
by a National Board, to check statements made by registered health
practitioners.
(3) A criminal history law does not apply to a
report under subsection (1).
Subdivision 6 General
136 Directing or inciting unprofessional conduct
or professional misconduct
(1) A person must not direct or incite a
registered health practitioner to do anything, in the course of the
practitioner's practice of the health profession, that amounts to
unprofessional conduct or professional misconduct.
Maximum penalty—
(a) in the case of an
individual—$30,000; or
(b) in the case of a body
corporate—$60,000.
App.
(2) Subsection (1) does not apply to a person who
is the owner or operator of a public health facility.
137 Surrender of registration
(1) A registered health practitioner may, by
written notice given to the National Board that registered the practitioner,
surrender the practitioner's registration.
(2) The surrender of the registration takes effect
on—
(a) the day the National Board
receives the notice under subsection (1); or
(b) the later day stated in the
notice.
Part 8 Health, performance and conduct
Division 1 Preliminary
138 Part applicable to persons formerly registered
under this Law
(1) This section applies if a person was, but is
no longer, registered in a health profession under this Law.
App.
(2) A notification may be made, and proceedings
may be taken, under this Part in relation to the person's behaviour while
registered as if the person were still registered under this Law by the
National Board established for the health profession.
(3) For the purposes of subsection (2), this Part
(other than Divisions 2 and 6) applies, with any necessary changes, to the
person as if a reference to a registered health practitioner included that
person.
139 Part applicable to persons formerly registered
under corresponding prior Act in certain circumstances
(1) This section applies if a person—
(a) was registered in a health
profession under a corresponding prior Act; and
(b) is not, and has not been,
registered in the health profession under this Law.
(2) A notification may be made, and proceedings
may be taken, under this Part in relation to the person's behaviour while
registered under the corresponding prior Act as if the person were registered
under this Law by the National Board established for the health profession.
(3) However, subsection (2) applies only to the
extent—
(a) a notification about the
person's behaviour could have been made under the corresponding prior Act; and
(b) proceedings of that type could
have been taken under the corresponding prior Act.
(4) For the purposes of subsection (2), this Part
(other than Divisions 2 and 7) applies, with any necessary changes, to the
person as if a reference to a registered health practitioner included that
person.
Division 2 Mandatory notifications
140 Definition of notifiable conduct
In this Division—
"notifiable conduct", in relation to a registered health practitioner, means
the practitioner has—
(a) practised the practitioner's
profession while intoxicated by alcohol or drugs; or
(b) engaged in sexual misconduct in
connection with the practice of the practitioner's profession; or
(c) placed the public at risk of
substantial harm in the practitioner's practice of the profession because the
practitioner has an impairment; or
App.
(d) placed the public at risk of
harm because the practitioner has practised the profession in a way that
constitutes a significant departure from accepted professional standards.
141 Mandatory notifications by health
practitioners
(1) This section applies to a registered health
practitioner (the first health practitioner ) who, in the course of practising
the first health practitioner's profession, forms a reasonable belief
that—
(a) another registered health
practitioner (the second health practitioner ) has behaved in a way that
constitutes notifiable conduct; or
(b) a student has an impairment
that, in the course of the student undertaking clinical training, may place
the public at substantial risk of harm.
(2) The first health practitioner must, as soon as
practicable after forming the reasonable belief, notify the National Agency of
the second health practitioner's notifiable conduct or the student's
impairment.
Note.
See section 237 which provides protection from civil, criminal and
administrative liability for persons who, in good faith, make a notification
under this Law. Section 237(3) provides that the making of a notification does
not constitute a breach of professional etiquette or ethics or a departure
from accepted standards of professional conduct and nor is any liability for
defamation incurred.
App.
(3) A contravention of subsection (2) by a
registered health practitioner does not constitute an offence but may
constitute behaviour for which action may be taken under this Part.
(4) For the purposes of subsection (1), the first
health practitioner does not form the reasonable belief in the course of
practising the profession if—
(a) the first health
practitioner—
(i) is employed
or otherwise engaged by an insurer that provides professional indemnity
insurance that relates to the second health practitioner or student; and
(ii) forms the
reasonable belief the second health practitioner has behaved in a way that
constitutes notifiable conduct, or the student has an impairment, as a result
of a disclosure made by a person to the first health practitioner in the
course of a legal proceeding or the provision of legal advice arising from the
insurance policy; or
(b) the first health practitioner
forms the reasonable belief in the course of providing advice in relation to
the notifiable conduct or impairment for the purposes of a legal proceeding or
the preparation of legal advice; or
(c) the first health practitioner is
a legal practitioner and forms the reasonable belief in the course of
providing legal services to the second health practitioner or student in
relation to a legal proceeding or the preparation of legal advice in which the
notifiable conduct or impairment is an issue; or
(d) the first health
practitioner—
(i) forms the
reasonable belief in the course of exercising functions as a member of a
quality assurance committee, council or other body approved or authorised
under an Act of a participating jurisdiction; and
(ii) is unable
to disclose the information that forms the basis of the reasonable belief
because a provision of that Act prohibits the disclosure of the information;
or
(e) the first health practitioner
knows, or reasonably believes, the National Agency has been notified of the
notifiable conduct or impairment that forms the basis of the reasonable
belief.
142 Mandatory notifications by employers
(1) If an employer of a registered health
practitioner reasonably believes the health practitioner has behaved in a way
that constitutes notifiable conduct, the employer must notify the National
Agency of the notifiable conduct.
Note.
App.
See section 237 which provides protection from civil, criminal and
administrative liability for persons who, in good faith, make a notification
under this Law. Section 237(3) provides that the making of a notification does
not constitute a breach of professional etiquette or ethics or a departure
from accepted standards of professional conduct and nor is any liability for
defamation incurred.
(2) If the National Agency becomes aware that an
employer of a registered health practitioner has failed to notify the Agency
of notifiable conduct as required by subsection (1), the Agency must give a
written report about the failure to the responsible Minister for the
participating jurisdiction in which the notifiable conduct occurred.
(3) As soon as practicable after receiving a
report under subsection (2), the responsible Minister must report the
employer's failure to notify the Agency of the notifiable conduct to a health
complaints entity, the employer's licensing authority or another appropriate
entity in that participating jurisdiction.
(4) In this section—
"employer", of a registered health practitioner, means an entity that employs
the health practitioner under a contract of employment or a contract for
services.
"licensing authority", of an employer, means an entity that under a law of a
participating jurisdiction is responsible for licensing, registering or
authorising the employer to conduct the employer's business.
143 Mandatory notifications by education providers
(1) An education provider must notify the National
Agency if the provider reasonably believes—
(a) a student enrolled in a program
of study provided by the provider has an impairment that, in the course of the
student undertaking clinical training as part of the program of study, may
place the public at substantial risk of harm; or
(b) a student for whom the education
provider has arranged clinical training has an impairment that, in the course
of the student undertaking the clinical training, may place the public at
substantial risk of harm;
Note.
App.
See section 237 which provides protection from civil, criminal and
administrative liability for persons who make a notification under this Law.
Section 237(3) provides that the making of a notification does not constitute
a breach of professional etiquette or ethics or a departure from accepted
standards of professional conduct and nor is any liability for defamation
incurred.
(2) A contravention of subsection (1) does not
constitute an offence.
(3) However, if an education provider does not
comply with subsection (1)—
(a) the National Board that
registered the student must publish details of the failure on the Board's
website; and
(b) the National Agency may, on the
recommendation of the National Board, include a statement about the failure in
the Agency's annual report.
Division 3 Voluntary notifications
144 Grounds for voluntary notification
(1) A voluntary notification about a registered
health practitioner may be made to the National Agency on any of the following
grounds—
(a) that the practitioner's
professional conduct is, or may be, of a lesser standard than that which might
reasonably be expected of the practitioner by the public or the practitioner's
professional peers;
(b) that the knowledge, skill or
judgment possessed, or care exercised by, the practitioner in the practice of
the practitioner's health profession is, or may be, below the standard
reasonably expected;
(c) that the practitioner is not, or
may not be, a suitable person to hold registration in the health profession,
including, for example, that the practitioner is not a fit and proper person
to be registered in the profession;
(d) that the practitioner has, or
may have, an impairment;
(e) that the practitioner has, or
may have, contravened this Law;
App.
(f) that the practitioner has, or
may have, contravened a condition of the practitioner's registration or an
undertaking given by the practitioner to a National Board;
(g) that the practitioner's
registration was, or may have been, improperly obtained because the
practitioner or someone else gave the National Board information or a document
that was false or misleading in a material particular.
(2) A voluntary notification about a student may
be made to the National Agency on the grounds that—
(a) the student has been charged
with an offence, or has been convicted or found guilty of an offence, that is
punishable by 12 months imprisonment or more; or
(b) the student has, or may have, an
impairment; or
(c) that the student has, or may
have, contravened a condition of the student's registration or an undertaking
given by the student to a National Board.
145 Who may make voluntary notification
Any entity that believes that a ground on which a voluntary notification may
be made exists in relation to a registered health practitioner or a student
may notify the National Agency.
Note.
See section 237 which provides protection from civil, criminal and
administrative liability for persons who, in good faith, make a notification
under this Law.
Division 4 Making a notification
146 How notification is made
(1) A notification may be made to the National
Agency—
(a) verbally, including by
telephone; or
(b) in writing, including by email
or other electronic means.
(2) A notification must include particulars of the
basis on which it is made.
(3) If a notification is made verbally, the
National Agency must make a record of the notification.
147 National Agency to provide reasonable
assistance to notifier
App.
(1) The National Agency must, if asked by an
entity, give the entity reasonable assistance to make a notification about a
registered health practitioner or student.
(2) Without limiting subsection (1), the National
Agency may assist an entity to make a notification if—
(a) the entity is not able to put
the entity's notification in writing without assistance; or
(b) the entity needs assistance to
clarify the nature of the individual's notification.
Division 5 Preliminary assessment
148 Referral of notification to National Board or
co-regulatory authority
(1) Subject to subsections (2) and (3), the
National Agency must, as soon as practicable after receiving a notification
about a registered health practitioner or a student, refer the notification to
the National Board that registered the health practitioner or student.
(2) If the behaviour that is the basis for the
ground for the notification occurred, or is reasonably believed to have
occurred, in a co-regulatory jurisdiction, the National Agency—
(a) must not deal with the
notification; and
(b) must, as soon as practicable
after receiving the notification, refer the notification to the co-regulatory
authority for the co-regulatory jurisdiction.
(3) If the behaviour that is the basis for the
ground for the notification occurred, or is reasonably believed to have
occurred, in more than one jurisdiction and one of the jurisdictions is a
co-regulatory jurisdiction, the National Agency must—
(a) if the registered health
practitioner's principal place of practice is in the co-regulatory
jurisdiction, refer the notification under subsection (2); or
(b) otherwise, refer the
notification under subsection (1).
149 Preliminary assessment
(1) A National Board must, within 60 days after
receipt of a notification, conduct a preliminary assessment of the
notification and decide—
App.
(a) whether or not the notification
relates to a person who is a health practitioner or a student registered by
the Board; and
(b) whether or not the notification
relates to a matter that is a ground for notification; and
(c) if the notification is a
notification referred to in paragraphs (a) and (b), whether or not it is a
notification that could also be made to a health complaints entity.
(2) Without limiting subsection (1)(b), the
National Board may decide the notification relates to a matter that is a
ground for notification under section 144 on the basis of—
(a) a single notification about a
person; or
(b) a number of notifications about
a person including—
(i) a number of
notifications that suggest a pattern of conduct; and
(ii)
notifications made to a health complaints entity.
(3) If the National Board decides the notification
relates to a person who is not registered by the Board but the Board
reasonably suspects the person is registered by another National Board, the
Board must refer the notification to that other Board.
150 Relationship with health complaints entity
(1) If the subject matter of a notification would
also provide a ground for a complaint to a health complaints entity under a
law of a participating jurisdiction, the National Board that received the
notification must, as soon as practicable after its receipt—
(a) notify the health complaints
entity that the Board has received the notification; and
(b) give to the health complaints
entity—
(i) a copy of
the notification or, if the notification was not made in writing, a copy of
the National Agency's record of the details of the notification; and
(ii) any other
information the Board has that is relevant to the notification.
(2) If a health complaints entity receives a
complaint about a health practitioner, the health complaints entity must, as
soon as practicable after its receipt—
App.
(a) notify the National Board
established for the practitioner's health profession that the health
complaints entity has received the complaint; and
(b) give to the National
Board—
(i) a copy of
the complaint or, if the complaint was not made in writing, a copy of the
health complaints entity's record of the details of the complaint; and
(ii) any other
information the health complaints entity has that is relevant to the
complaint.
(3) The National Board and the health complaints
entity must attempt to reach agreement about how the notification or complaint
is to be dealt with, including—
(a) whether the Board is to deal
with the notification or complaint, or part of the notification or complaint,
or to decide to take no further action in relation to it; and
(b) if the Board is to deal with the
notification or complaint or part of the notification or complaint, the action
the Board is to take.
(4) If the National Board and the health
complaints entity are not able to reach agreement on how the notification or
complaint, or part of the notification or complaint, is to be dealt with, the
most serious action proposed by either must be taken.
(5) If an investigation, conciliation or other
action taken by a health complaints entity raises issues about the health,
conduct or performance of a registered health practitioner, the health
complaints entity must give the National Board that registered the
practitioner written notice of the issues.
(6) If a notification, or part of a notification,
received by a National Board is referred to a health complaints entity, the
Board may decide to take no further action in relation to the notification or
the part of the notification until the entity gives the Board written notice
that the entity has finished dealing with it.
(7) If a National Board or an adjudication body
takes health, conduct or performance action in relation to a registered health
practitioner, the Board that registered the practitioner must give written
notice of the action to the health complaints entity for the participating
jurisdiction in which the behaviour that provided the basis for the action
occurred.
(8) A written notice under subsection (5) or (7)
must include—
(a) sufficient particulars to
identify the registered health practitioner; and
(b) details of—
App.
(i) the issues
raised about the health, conduct or performance of the registered health
practitioner; or
(ii) the
health, conduct or performance action taken in relation to the registered
health practitioner.
151 When National Board may decide to take no
further action
(1) A National Board may decide to take no further
action in relation to a notification if—
(a) the Board reasonably believes
the notification is frivolous, vexatious, misconceived or lacking in
substance; or
(b) given the amount of time that
has elapsed since the matter the subject of the notification occurred, it is
not practicable for the Board to investigate or otherwise deal with the
notification; or
(c) the person to whom the
notification relates has not been, or is no longer, registered by the Board
and it is not in the public interest for the Board to investigate or otherwise
deal with the notification; or
(d) the subject matter of the
notification has already been dealt with adequately by the Board; or
(e) the subject matter of the
notification is being dealt with, or has already been dealt with, adequately
by another entity.
(2) A decision by a National Board to decide to
take no further action in relation to a notification does not prevent a
National Board or adjudication body taking the notification into consideration
at a later time as part of a pattern of conduct or practice by the health
practitioner.
(3) If a National Board decides to take no further
action in relation to a notification it must give written notice of the
decision to the notifier.
(4) A notice under subsection (3) must
state—
(a) that the National Board has
decided to take no further action in relation to the notification; and
(b) the reason the Board has decided
to take no further action.
152 National Board to give notice of receipt of
notification
(1) A National Board must, as soon as practicable
after receiving a notification about a registered health practitioner or
student, give written notice of the notification to the practitioner or
student.
(2) The notice must advise the registered health
practitioner or student of the nature of the notification.
(3) Despite subsection (1), the National Board is
not required to give the registered health practitioner or student notice of
the notification if the Board reasonably believes doing so would—
(a) prejudice an investigation of
the notification; or
(b) place at risk a person's health
or safety or place a person at risk of intimidation or harassment.
Division 6 Other matters
153 National Board may deal with notifications
about same person together
App.
If the National Agency receives more than one notification about a registered
health practitioner or student, the National Board established for the health
profession in which the practitioner or student is registered may deal with
the notifications together.
154 National Boards may deal with notifications
collaboratively
(1) This section applies if a notification
received by a National Board relates to—
(a) a registered health practitioner
who is registered in more than one health profession; or
(b) more than one registered health
practitioner and the practitioners are registered in 2 or more different
health professions; or
(c) a person who is registered as a
student in more than one health profession; or
(d) more than one student and the
students are registered in 2 or more different health professions.
(2) The National Board may deal with the
notification in conjunction with one or more other National Boards with whom
the registered health practitioner or practitioners, or student or students,
are registered.
Division 7 Immediate action
155 Definition
In this Division—
"immediate action", in relation to a registered health practitioner or
student, means—
(a) the suspension, or imposition of
a condition on, the health practitioner's or student's registration; or
(b) accepting an undertaking from
the health practitioner or student; or
(c) accepting the surrender of the
health practitioner's or student's registration.
156 Power to take immediate action
App.
(1) A National Board may take immediate action in
relation to a registered health practitioner or student registered by the
Board if—
(a) the National Board reasonably
believes that—
(i) because of
the registered health practitioner's conduct, performance or health, the
practitioner poses a serious risk to persons; and
(ii) it is
necessary to take immediate action to protect public health or safety; or
(b) the National Board reasonably
believes that—
(i) the student
poses a serious risk to persons because the student—
(A) has been charged with an offence, or has been
convicted or found guilty of an offence, that is punishable by 12 months
imprisonment or more; or
(B) has, or may have, an impairment; or
(C) has, or may have, contravened a condition of
the student's registration or an undertaking given by the student to a
National Board; and
(ii) it is
necessary to take immediate action to protect public health or safety; or
(c) the registered health
practitioner's registration was improperly obtained because the practitioner
or someone else gave the National Board information or a document that was
false or misleading in a material particular; or
(d) the registered health
practitioner's or student's registration has been cancelled or suspended under
the law of a jurisdiction, whether in Australia or elsewhere, that is not a
participating jurisdiction.
(2) However, the National Board may take immediate
action that consists of suspending, or imposing a condition on, the health
practitioner's or student's registration only if the Board has complied with
section 157.
157 Show cause process
App.
(1) If a National Board is proposing to take
immediate action that consists of suspending, or imposing a condition on, a
registered health practitioner's or student's registration under section 156,
the Board must—
(a) give the practitioner or student
notice of the proposed immediate action; and
(b) invite the practitioner or
student to make a submission to the Board, within the time stated in the
notice about the proposed immediate action.
(2) A notice given to a registered health
practitioner or student under subsection (1), and any submissions made by the
practitioner or student in accordance with the notice, may be written or
verbal.
(3) The National Board must have regard to any
submissions made by the registered health practitioner or student in
accordance with this section in deciding whether to take immediate action in
relation to the practitioner or student.
158 Notice to be given to registered health
practitioner or student about immediate action
(1) Immediately after deciding to take immediate
action in relation to a registered health practitioner or student, the
National Board must—
(a) give written notice of the
Board's decision to the health practitioner or student; and
(b) take the further action under
this Part the Board considers appropriate, including, for example,
investigating the practitioner or student or requiring the practitioner or
student to undergo a health or performance assessment.
(2) The notice must state—
App.
(a) the immediate action the
National Board has decided to take; and
(b) the reasons for the decision to
take the immediate action; and
(c) the further action the National
Board proposes to take under this Part in relation to the health practitioner
or student; and
(d) that the registered health
practitioner or student may appeal against the decision to take the immediate
action if the action is to suspend, or impose a condition on, the
practitioner's or student's registration; and
(e) how an application for appeal
may be made and the period within which the application must be made.
159 Period of immediate action
(1) The decision by the National Board to take
immediate action in relation to the registered health practitioner or student
takes effect on—
(a) the day the notice is given to
the practitioner or student; or
(b) the later day stated in the
notice.
(2) The decision continues to have effect until
the earlier of the following occurs—
(a) the decision is set aside on
appeal;
(b) for the suspension of, or
imposition of conditions on, the registered health practitioner's or student's
registration, the suspension is revoked, or the conditions are removed, by the
National Board; or
(c) for an undertaking, the National
Board and the registered health practitioner or student agree to end the
undertaking.
Division 8 Investigations
Subdivision 1 Preliminary
160 When investigation may be conducted
(1) A National Board may investigate a registered
health practitioner or student registered by the Board if it decides it is
necessary or appropriate—
(a) because the Board has received a
notification about the practitioner or student; or
(b) because the Board for any other
reason believes—
(i) the
practitioner or student has or may have an impairment; or
(ii) for a
practitioner—
App.
(A) the way the practitioner practises the
profession is or may be unsatisfactory; or
(B) the practitioner's conduct is or may be
unsatisfactory; or
(c) to ensure the practitioner or
student—
(i) is
complying with conditions imposed on the practitioner's or student's
registration; or
(ii) an
undertaking given by the practitioner or student to the Board.
(2) If a National Board decides to investigate a
registered health practitioner or student it must direct an appropriate
investigator to conduct the investigation.
161 Registered health practitioner or student to
be given notice of investigation
(1) A National Board that decides to investigate a
registered health practitioner or student must, within as soon as practicable
after making the decision, give the practitioner or student written notice
about the investigation.
(2) The notice must advise the registered health
practitioner or student of the nature of the matter being investigated.
(3) Also, the National Board must, at not less
than 3 monthly intervals, give the written notice of the progress of the
investigation to—
(a) the registered health
practitioner or student; and
(b) if the investigation relates to
a notification made about the registered health practitioner or student, the
notifier.
(4) However, the National Board need not give the
registered health practitioner or student a notice under subsection (1) or (3)
if the Board reasonably believes giving the notice may—
(a) seriously prejudice the
investigation; or
(b) place at risk a person's health
or safety; or
(c) place a person at risk of
harassment or intimidation.
162 Investigation to be conducted in timely way
App.
The National Board must ensure an investigator it directs to conduct an
investigation conducts the investigation as quickly as practicable, having
regard to the nature of the matter to be investigated.
Subdivision 2 Investigators
163 Appointment of investigators
(1) A National Board may appoint the following
persons as investigators—
(a) members of the National Agency's
staff;
(b) contractors engaged by the
National Agency.
(2) An investigator holds office on the conditions
stated in the instrument of appointment.
(3) If an investigator's appointment provides for
a term of appointment, the investigator ceases holding office at the end of
the term.
(4) An investigator may resign by signed notice of
resignation given to the National Board which appointed the investigator.
(5) Schedule 5 sets out provisions relating to the
powers of an investigator.
164 Identity card
(1) A National Board must give an identity card to
each investigator it appoints.
(2) The identity card must—
(a) contain a recent photograph of
the investigator; and
(b) be signed by the investigator;
and
(c) identify the person as an
investigator appointed by the National Board; and
(d) include an expiry date.
(3) This section does not prevent the issue of a
single identity card to a person—
(a) if the person is appointed as an
investigator for this Law by more than one National Board; or
App.
(b) for this Law and other Acts.
(4) A person who ceases to be an investigator must
give the person's identity card to the National Board that appointed the
person within 7 days after the person ceases to be an investigator, unless the
person has a reasonable excuse.
165 Display of identity card
(1) An investigator may exercise a power in
relation to someone else (the "other person") only if the investigator—
(a) first produces the
investigator's identity card for the other person's inspection; or
(b) has the identity card displayed
so it is clearly visible to the other person.
(2) However, if for any reason it is not
practicable to comply with subsection (1) before exercising the power, the
investigator must produce the identity card for the other person's inspection
at the first reasonable opportunity.
Subdivision 3 Procedure after investigation
166 Investigator's report about investigation
(1) As soon as practicable after completing an
investigation under this Division, an investigator must give a written report
about the investigation to the National Board that directed the investigator
to carry out the investigation.
(2) The report must include—
(a) the investigator's findings
about the investigation; and
(b) the investigator's
recommendations about any action to be taken in relation to the health
practitioner or student the subject of the investigation.
167 Decision by National Board
After considering the investigator's report, the National Board must
decide—
App.
(a) to take no further action in
relation to the matter; or
(b) to do either or both of the
following—
(i) take the
action the Board considers necessary or appropriate under another Division;
(ii) refer the
matter to another entity, including, for example, a health complaints entity,
for investigation or other action.
Division 9 Health and performance assessments
168 Definition
In this Division—
"assessment" means—
(a) a health assessment; or
(b) a performance assessment.
169 Requirement for health assessment
A National Board may require a registered health practitioner or student to
undergo a health assessment if the Board reasonably believes, because of a
notification or for any other reason, that the practitioner or student has, or
may have, an impairment.
170 Requirement for performance assessment
A National Board may require a registered health practitioner to undergo a
performance assessment if the Board reasonably believes, because of a
notification or for any other reason, that the way the practitioner practises
the profession is or may be unsatisfactory.
171 Appointment of assessor to carry out
assessment
(1) If the National Board requires a registered
health practitioner or student to undergo an assessment, the National Agency
must appoint an assessor chosen by the Board to carry out the assessment.
(2) The assessor must be—
(a) for a health assessment, a
medical practitioner or psychologist who is not a member of the National
Board; or
(b) for a performance assessment, a
registered health practitioner who is a member of the health profession for
which the National Board is established but is not a member of the Board.
(3) The assessor may ask another health
practitioner to assist the assessor in carrying out the assessment of the
registered health practitioner or student.
(4) The assessor's fee for carrying out the
assessment is to be paid out of the National Board's budget.
172 Notice to be given to registered health
practitioner or student about assessment
App.
(1) A requirement by a National Board for a
registered health practitioner or student to undergo an assessment must be
made by written notice given to the practitioner or student.
(2) The written notice must state—
(a) that the registered health
practitioner or student is required to undergo a health assessment or
performance assessment; and
(b) the nature of the assessment to
be carried out; and
(c) the name and qualifications of
the registered health practitioner who is to carry out the assessment; and
(d) that if the registered health
practitioner or student does not undergo the assessment the National Board may
continue to take proceedings in relation to the practitioner or student under
this Part.
173 Assessor may require information or attendance
For the purposes of conducting an assessment of a registered health
practitioner or student, an assessor may, by written notice given to the
practitioner or student, require the practitioner or student to—
(a) give stated information to the
assessor within a stated reasonable time and in a stated reasonable way; or
(b) attend before the assessor at a
stated time and a stated place to undergo the assessment.
Example of stated place.
the registered health practitioner's principal place of practice
174 Inspection of documents
(1) If a document is produced to an assessor, the
assessor may—
App.
(a) inspect the document; and
(b) make a copy of, or take an
extract from, the document; and
(c) keep the document while it is
necessary for the assessment.
(2) If the assessor keeps the document, the
assessor must permit a person otherwise entitled to possession of the document
to inspect, make a copy of, or take an extract from, the document at the
reasonable time and place decided by the assessor.
175 Report from assessor
The assessor must, as soon as practicable after carrying out the assessment,
give to the National Board a report about the assessment.
176 Copy of report to be given to health
practitioner or student
(1) The National Board must, as soon as
practicable after receiving the assessor's report, give a copy of the report
to—
(a) the registered health
practitioner or student to whom it relates; or
(b) if the report contains
information the Board considers may, if disclosed to the practitioner or
student, be prejudicial to the practitioner's or student's physical or mental
health or wellbeing, to a medical practitioner or psychologist nominated by
the practitioner or student.
(2) If a medical practitioner or psychologist is
given a copy of a report about a registered health practitioner or student
under subsection (1)(b), the medical practitioner or psychologist must give a
copy of the report to the practitioner or student as soon as it will no longer
be prejudicial to the practitioner's or student's health or wellbeing.
(3) After the registered health practitioner or
student has been given a copy of the report under subsection (1)(a) or (2), a
person nominated by the Board must—
(a) discuss the report with the
practitioner or student; and
App.
(b) if the report makes an adverse
finding about the practitioner's practice of the profession or states that the
assessor finds the practitioner has an impairment, discuss with the
practitioner ways of dealing with the finding, including, for a practitioner,
whether the practitioner is prepared to alter the way the practitioner
practises the health profession.
177 Decision by National Board
After considering the assessor's report and the discussions held with the
registered health practitioner or student under section 176(3), the National
Board may decide to—
(a) take the action the Board
considers necessary or appropriate under another Division; or
(b) refer the matter to another
entity, including, for example, a health complaints entity, for investigation
or other action; or
(c) take no further action in
relation to the matter.
Division 10 Action by National Board
178 National Board may take action
(1) This section applies if—
(a) a National Board reasonably
believes, because of a notification or for any other reason—
(i) the way a
registered health practitioner registered by the Board practises the health
profession, or the practitioner's professional conduct, is or may be
unsatisfactory; or
(ii) a
registered health practitioner or student registered by the Board has or may
have an impairment; or
(iii) a student
has been charged with an offence, or has been convicted or found guilty of an
offence, that is punishable by 12 months imprisonment or more; or
(iv) a student
has or may have contravened a condition of the student's registration or an
undertaking given by the student to a National Board; and
(b) the matter is not required to be
referred to a responsible tribunal under section 193; and
(c) the Board decides it is not
necessary or appropriate to refer the matter to a panel.
App.
(2) The National Board may decide to take one or
more of the following actions ( relevant action ) in relation to the
registered health practitioner or student—
(a) caution the registered health
practitioner or student;
(b) accept an undertaking from the
registered health practitioner or student;
(c) impose conditions on the
practitioner's or student's registration, including, for example, in relation
to a practitioner—
(i) a condition
requiring the practitioner to complete specified further education or training
within a specified period; or
(ii) a
condition requiring the practitioner to undertake a specified period of
supervised practice; or
(iii) a
condition requiring the practitioner to do, or refrain from doing, something
in connection with the practitioner's practice; or
(iv) a
condition requiring the practitioner to manage the practitioner's practice in
a specified way; or
(v) a condition
requiring the practitioner to report to a specified person at specified times
about the practitioner's practice; or
(vi) a
condition requiring the practitioner not to employ, engage or recommend a
specified person, or class of persons;
(d) refer the matter to another
entity, including, for example, a health complaints entity, for investigation
or other action.
(3) If the National Board decides to impose a
condition on the registered health practitioner's or student's registration,
the Board must also decide a review period for the condition.
179 Show cause process
(1) If a National Board is proposing to take
relevant action in relation to a registered health practitioner or student,
the Board must—
App.
(a) give the practitioner or student
written notice of the proposed relevant action; and
(b) invite the practitioner or
student to make a written or verbal submission to the Board, within the
reasonable time stated in the notice, about the proposed relevant action.
(2) After considering any submissions made by the
registered health practitioner or student in accordance with this section, the
National Board must decide to—
(a) take no action in relation to
the matter; or
(b) do either or both of the
following—
(i) take the
proposed relevant action or other relevant action;
(ii) refer the
matter to another entity, including, for example, a health complaints entity,
for investigation or other action.
(3) This section does not apply if—
(a) a National Board is proposing to
take relevant action in relation to a registered health practitioner or
student; and
(b) the National Board has, in
relation to the matter that forms the basis for the relevant action—
(i)
investigated the registered health practitioner or student under Division 8;
or
(ii) conducted
a health assessment or performance assessment of the registered health
practitioner or student under Division 9.
180 Notice to be given to health practitioner or
student and notifier
(1) As soon as practicable after making a decision
under section 179(2), the National Board must give written notice of the
decision to—
(a) the registered health
practitioner or student; and
(b) if the decision was the result
of a notification, the notifier.
(2) The notice given to the notifier must include
information about the decision made by the Board only to the extent the
information is available on the National Board's register.
Division 11 Panels
181 Establishment of health panel
App.
(1) A National Board may establish a health panel
if—
(a) the Board reasonably believes,
because of a notification or for any other reason, that a registered health
practitioner or student has or may have an impairment; and
(b) the Board decides it is
necessary or appropriate for the matter to be referred to a panel.
(2) A health panel must consist of the following
members chosen from a list referred to in section 183—
(a) at least one member who is a
registered health practitioner in the health profession for which the Board is
established;
(b) at least one member who is a
medical practitioner with expertise relevant to the matter the subject of the
hearing;
(c) at least one member who is not,
and has not been, a registered health practitioner in the health profession
for which the Board has been established.
(3) In choosing members of the panel, the National
Board must, if possible, choose a member from the jurisdiction in which the
matter the subject of the hearing occurred.
(4) No more than half of the members of the panel
may be registered health practitioners in the health profession for which the
Board is established.
(5) However, if the registered health practitioner
the subject of the hearing is a medical practitioner, a member of the panel
referred to in subsection (2)(b) is not to be considered to be registered in
the health profession for which the Board is established for the purposes of
subsection (4).
(6) A person cannot be appointed to the panel if
the person has been involved in any proceedings relating to the matter the
subject of the hearing by the panel.
182 Establishment of performance and professional
standards panel
(1) A National Board may establish a performance
and professional standards panel if—
(a) the Board reasonably believes,
because of a notification or for any other reason, that—
App.
(i) the way a
registered health practitioner practises the health profession is or may be
unsatisfactory; or
(ii) the
registered health practitioner's professional conduct is or may be
unsatisfactory; and
(b) the Board decides it is
necessary or appropriate for the matter to be referred to a panel.
(2) A performance and professional standards panel
must consist of at least 3 members.
(3) In choosing members of the panel, the National
Board must, if possible, choose a member from the jurisdiction in which the
matter the subject of the hearing occurred.
(4) At least half, but no more than two-thirds, of
the members of the panel must be persons who are registered health
practitioners in the health profession for which the Board is established, and
chosen from a list approved under section 183.
(5) At least one member must be a person who
represents the community and chosen from a list approved under section 183.
(6) A person may not be appointed to the panel if
the person has been involved in any proceedings relating to the matter the
subject of the hearing by the panel.
183 List of approved persons for appointment to
panels
(1) A National Board may appoint individuals to a
list of persons approved to be appointed as members of panels.
(2) To the extent practicable, individuals
appointed under subsection (1) should not—
(a) for registered health
practitioners, be individuals whose principal place of practice is in a
co-regulatory jurisdiction; or
(b) otherwise, be individuals who
live in a co-regulatory jurisdiction.
184 Notice to be given to registered health
practitioner or student
(1) A panel must give notice of its hearing of a
matter to the registered health practitioner or student the subject of the
hearing.
(2) The notice must state—
App.
(a) the day, time and place at which
the hearing is to be held; and
(b) the nature of the hearing and
the matters to be considered at the hearing; and
(c) that the registered health
practitioner or student is required to attend the hearing; and
(d) that the registered health
practitioner may be accompanied at the hearing by an Australian legal
practitioner or other person; and
(e) that if the registered health
practitioner or student fails to attend the hearing the hearing may continue,
and the panel may make a decision, in the practitioner's or student's absence;
and
(f) the types of decision the panel
may make at the end of the hearing.
185 Procedure of panel
(1) Subject to this Division, a panel may decide
its own procedures.
(2) A panel is required to observe the principles
of natural justice but is not bound by the rules of evidence.
(3) A panel may have regard to—
(a) a report prepared by an assessor
about the registered health practitioner or student; and
(b) any other information the panel
considers relevant to the hearing of the matter.
186 Legal representation
(1) At a hearing of a panel, the registered health
practitioner or student the subject of the hearing may be accompanied by an
Australian legal practitioner or another person.
(2) An Australian legal practitioner or other
person accompanying the registered health practitioner or student may appear
on behalf of the practitioner or student only with the leave of the panel.
(3) The panel may grant leave for an Australian
legal practitioner or other person to appear on behalf of the registered
health practitioner or student only if the panel considers it appropriate in
the particular circumstances of the hearing.
187 Submission by notifier
App.
If a matter the subject of a hearing before a panel relates to a notification,
the notifier may, with the leave of the panel, make a submission to the panel
about the matter.
188 Panel may proceed in absence of registered
health practitioner or student
At a hearing, a panel may proceed in the absence of the registered health
practitioner or student the subject of the proceedings if the panel reasonably
believes the practitioner or student has been given notice of the hearing.
189 Hearing not open to the public
A hearing before a panel is not open to the public.
190 Referral to responsible tribunal
A panel must stop hearing a matter and require the National Board that
established the panel to refer the matter to a responsible tribunal under
section 193 if, at any time—
(a) the practitioner or student the
subject of the hearing asks the panel for the matter to be referred to a
responsible tribunal under section 193; or
(b) if the subject of the hearing is
a registered health practitioner—
(i) the panel
reasonably believes the evidence demonstrates the practitioner may have
behaved in a way that constitutes professional misconduct; or
(ii) the panel
reasonably believes the evidence demonstrates the practitioner's registration
may have been improperly obtained because the practitioner or someone else
gave the Board information or a document that was false or misleading in a
material particular.
191 Decision of panel
(1) After hearing a matter about a registered
health practitioner, a panel may decide—
(a) the practitioner has no case to
answer and no further action is to be taken in relation to the matter; or
App.
(b) one or more of the
following—
(i) the
practitioner has behaved in a way that constitutes unsatisfactory professional
performance;
(ii) the
practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the
practitioner has an impairment;
(iv) the matter
must be referred to a responsible tribunal under section 193;
(v) the matter
must be referred to another entity, including, for example, a health
complaints entity, for investigation or other action.
(2) After hearing a matter about a student, a
health panel may decide—
(a) the student has an impairment;
or
(b) the matter must be referred to
another entity, including, for example, a health complaints entity, for
investigation or other action; or
(c) the student has no case to
answer and no further action is to be taken in relation to the matter.
(3) If a panel decides a registered health
practitioner or student has an impairment, or that a practitioner has behaved
in a way that constitutes unsatisfactory professional performance or
unprofessional conduct, the panel may decide to do one or more of the
following—
(a) impose conditions on the
practitioner's or student's registration, including, for example, in relation
to a practitioner—
(i) a condition
requiring the practitioner to complete specified further education or training
within a specified period; or
(ii) a
condition requiring the practitioner to undertake a specified period of
supervised practice; or
(iii) a
condition requiring the practitioner to do, or refrain from doing, something
in connection with the practitioner's practice; or
App.
(iv) a
condition requiring the practitioner to manage the practitioner's practice in
a specified way; or
(v) a condition
requiring the practitioner to report to a specified person at specified times
about the practitioner's practice; or
(vi) a
condition requiring the practitioner not to employ, engage or recommend a
specified person, or class of persons;
(b) for a health panel, suspend the
practitioner's or student's registration;
(c) for a performance and
professional standards panel, caution or reprimand the practitioner.
(4) If a panel decides to impose a condition on a
registered health practitioner's or student's registration, the panel must
also decide a review period for the condition.
(5) A decision by a panel that a registered health
practitioner has no case to answer in relation to a matter does not prevent a
National Board or adjudication body taking the matter into consideration at a
later time as part of a pattern of conduct or practice by the health
practitioner.
192 Notice to be given about panel's decision
(1) As soon as practicable after making a decision
under section 191, a panel must give notice of its decision to the National
Board that established it.
(2) The National Board must, within 30 days after
the panel makes its decision, give written notice of the decision to—
(a) the registered health
practitioner or student the subject of the hearing; and
(b) if the hearing related to a
notification, the notifier.
(3) The notice given to the registered health
practitioner or student must state—
(a) the decision made by the panel;
and
(b) the reasons for the decision;
and
App.
(c) that the registered health
practitioner or student may appeal against the decision; and
(d) how an application for appeal
may be made and the period within which the application must be made.
(4) The notice to the notifier must include
information about the decision made by the panel but only to the extent the
information is available on the National Board's register.
Division 12 Referring matter to responsible tribunals
193 Matters to be referred to responsible tribunal
(1) A National Board must refer a matter about a
registered health practitioner or student to a responsible tribunal if—
(a) for a registered health
practitioner, the Board reasonably believes, based on a notification or for
any other reason—
(i) the
practitioner has behaved in a way that constitutes professional misconduct; or
(ii) the
practitioner's registration was improperly obtained because the practitioner
or someone else gave the Board information or a document that was false or
misleading in a material particular; or
(b) for a registered health
practitioner or student, a panel established by the Board requires the Board
to refer the matter to a responsible tribunal.
(2) The National Board must—
(a) refer the matter to—
(i) the
responsible tribunal for the participating jurisdiction in which the behaviour
the subject of the matter occurred; or
(ii) if the
behaviour occurred in more than one jurisdiction, the responsible tribunal for
the participating jurisdiction in which the practitioner's principal place of
practice is located; and
(b) give written notice of the
referral to the registered health practitioner or student to whom the matter
relates.
194 Parties to the proceedings
The parties to proceedings relating to a matter being heard by a responsible
tribunal are—
App.
(a) the registered health
practitioner or student who is the subject of the proceedings; and
(b) the National Board that referred
the matter to the tribunal.
195 Costs
The responsible tribunal may make any order about costs it considers
appropriate for the proceedings.
196 Decision by responsible tribunal about
registered health practitioner
(1) After hearing a matter about a registered
health practitioner, a responsible tribunal may decide—
(a) the practitioner has no case to
answer and no further action is to be taken in relation to the matter; or
(b) one or more of the
following—
(i) the
practitioner has behaved in a way that constitutes unsatisfactory professional
performance;
(ii) the
practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the
practitioner has behaved in a way that constitutes professional misconduct;
(iv) the
practitioner has an impairment;
(v) the
practitioner's registration was improperly obtained because the practitioner
or someone else gave the National Board that registered the practitioner
information or a document that was false or misleading in a material
particular; or
(2) If a responsible tribunal makes a decision
referred to in subsection (1)(b), the tribunal may decide to do one or more of
the following—
(a) caution or reprimand the
practitioner;
(b) impose a condition on the
practitioner's registration, including, for example—
App.
(i) a condition
requiring the practitioner to complete specified further education or
training, or to undergo counselling, within a specified period; or
(ii) a
condition requiring the practitioner to undertake a specified period of
supervised practice; or
(iii) a
condition requiring the practitioner to do, or refrain from doing, something
in connection with the practitioner's practice; or
(iv) a
condition requiring the practitioner to manage the practitioner's practice in
a specified way; or
(v) a condition
requiring the practitioner to report to a specified person at specified times
about the practitioner's practice; or
(vi) a
condition requiring the practitioner not to employ, engage or recommend a
specified person, or class of persons,
(c) require the practitioner to pay
a fine of not more than $30,000 to the National Board that registers the
practitioner;
(d) suspend the practitioner's
registration for a specified period;
(e) cancel the practitioner's
registration.
(3) If the responsible tribunal decides to impose
a condition on the practitioner's registration, the tribunal must also decide
a review period for the condition.
(4) If the tribunal decides to cancel a person's
registration under this Law or the person does not hold registration under
this Law, the tribunal may also decide to—
(a) disqualify the person from
applying for registration as a registered health practitioner for a specified
period; or
(b) prohibit the person from using a
specified title or providing a specified health service.
197 Decision by responsible tribunal about student
(1) After hearing a matter about a student, a
responsible tribunal may decide—
App.
(a) the student has an impairment;
or
(b) the student has no case to
answer and no further action is to be taken in relation to the matter.
(2) If the responsible tribunal decides the
student has an impairment, the tribunal may decide—
(a) impose a condition on the
student's registration; or
(b) suspend the student's
registration.
198 Relationship with Act establishing responsible
tribunal
This Division applies despite any provision to the contrary of the Act that
establishes the responsible tribunal but does not otherwise limit that Act.
Division 13 Appeals
199 Appellable decisions
(1) A person who is the subject of any of the
following decisions (an appellable decision ) may appeal against the
decision to the appropriate responsible tribunal for the appellable
decision—
(a) a decision by a National Board
to refuse to register the person;
(b) a decision by a National Board
to refuse to endorse the person's registration;
(c) a decision by a National Board
to refuse to renew the person's registration;
(d) a decision by a National Board
to refuse to renew the endorsement of the person's registration;
(e) a decision by a National Board
to impose or change a condition on a person's registration or the endorsement
of the person's registration, other than—
(i) a condition
relating to the person's qualification for general registration in the health
profession; and
(ii) a
condition imposed by section 112(3)(a);
(f) a decision by a National Board
to refuse to change or remove a condition imposed on the person's registration
or the endorsement of the person's registration;
(g) a decision by a National Board
to refuse to change or revoke an undertaking given by the person to the Board;
App.
(h) a decision by a National Board
to suspend the person's registration;
(i) a decision
by a panel to impose a condition on the person's registration;
(j) a decision by a health panel to
suspend the person's registration;
(k) a decision by a performance and
professional standards panel to reprimand the person.
(2) For the purposes of subsection (1), the
appropriate responsible tribunal for an appellable decision is—
(a) for a decision to take health,
conduct or performance action in relation to a registered health practitioner
or student—
(i) the
responsible tribunal for the participating jurisdiction in which the behaviour
the subject of the decision occurred; or
(ii) if the
behaviour the subject of the decision occurred in more than one jurisdiction,
the responsible tribunal for the participating jurisdiction in which the
practitioner's principal place of practice is located; or
(b) for another decision in relation
to a registered health practitioner, the responsible tribunal for the
participating jurisdiction in which the practitioner's principal place of
practice is located; or
(c) for another decision in relation
to a student, the responsible tribunal for the participating jurisdiction in
which the student is undertaking the approved program of study or clinical
training; or
(d) for a decision in relation to
another person—
(i) the
responsible tribunal for the participating jurisdiction in which the person
lives, or
(ii) if the
person does not live in a participating jurisdiction, the responsible tribunal
for the participating jurisdiction nominated by the National Board that made
the appellable decision and specified in the notice given to the person of the
appellable decision.
200 Parties to the proceedings
App.
The parties to proceedings relating to an appellable decision being heard by a
responsible tribunal are—
(a) the person who is the subject of
the appellable decision; and
(b) the National Board that—
(i) made the
appellable decision; or
(ii)
established the panel that made the appellable decision.
201 Costs
The responsible tribunal may make any order about costs it considers
appropriate for the proceedings.
202 Decision
(1) After hearing the matter, the responsible
tribunal may—
(a) confirm the appellable decision;
or
(b) amend the appellable decision;
or
(c) substitute another decision for
the appellable decision.
(2) In substituting another decision for the
appellable decision, the responsible tribunal has the same powers as the
entity that made the appellable decision.
203 Relationship with Act establishing responsible
tribunal
This Division applies despite any provision to the contrary of the Act that
establishes the responsible tribunal but does not otherwise limit that Act.
Division 14 Miscellaneous
204 Notice from adjudication body
App.
(1) If an adjudication body, other than a court,
makes a decision in relation to a health practitioner or student registered in
a health profession, it must give written notice of the decision to the
National Board established for the profession.
(2) The notice must state—
(a) the decision made by the
adjudication body; and
(b) the reasons for the decision;
and
(c) the date the decision takes
effect; and
(d) any action the National Board
must take to give effect to the decision.
205 Implementation of decisions
(1) A National Board must give effect to a
decision of an adjudication body unless the decision is stayed on appeal.
(2) Without limiting subsection (1), the National
Board must, if the notice given to the Board states that a health
practitioner's or student's registration is cancelled, remove the
practitioner's or student's name from the appropriate register kept by the
Board.
206 National Board to give notice to registered
health practitioner's employer
(1) This section applies if—
(a) a National Board—
(i) decides to
take health, conduct or performance action against a registered health
practitioner; or
(ii) receives
notice from an adjudication body that the adjudication body has decided to
take health, conduct or performance action against a registered health
practitioner; or
(iii) receives
notice from a co-regulatory authority that an adjudication body in the
co-regulatory jurisdiction has decided to take health, conduct or performance
action against a registered health practitioner; and
(b) the National Board has been
advised by the registered health practitioner that the practitioner is
employed by another entity.
Note.
Under section 132, a National Board may ask a registered health practitioner
to give the Board information about whether or not the practitioner is
employed by another entity and, if so, for the employer's details.
(2) The National Board must, as soon as
practicable after making the decision or receiving the notice, give written
notice of the decision to take health, conduct or performance action against
the registered health practitioner to the practitioner's employer.
207 Effect of suspension
App.
If a person's registration as a health practitioner or student is suspended
under this Law the person is taken during the period of suspension not to be
registered under this Law, other than for the purposes of this Part.
Part 9 Finance
208 Australian Health Practitioner Regulation
Agency Fund
(1) The Australian Health Practitioner Regulation
Agency Fund is established.
(2) The Agency Fund is to have a separate account
for each National Board.
(3) The Agency Fund is a fund to be administered
by the National Agency.
(4) The National Agency may establish accounts
with any financial institution for money in the Agency Fund.
(5) The Agency Fund does not form part of the
consolidated fund or consolidated account of a participating jurisdiction or
the Commonwealth.
209 Payments into Agency Fund
(1) There is payable into the Agency Fund—
(a) all money appropriated by the
Parliament of any participating jurisdiction or the Commonwealth for the
purposes of the Fund; and
(b) all fees, costs and expenses
paid or recovered under this Law; and
(c) all fines paid to, or recovered
by, a National Board in accordance with an order of an adjudication body; and
(d) the proceeds of the investment
of money in the Fund; and
App.
(e) all grants, gifts and donations
made to the National Agency or a National Board, but subject to any trusts
declared in relation to the grants, gifts or donations; and
(f) all money directed or authorised
to be paid into the Fund by or under this Law, any law of a participating
jurisdiction or any law of the Commonwealth; and
(g) any other money or property
received by the National Agency or a National Board in connection with the
exercise of its functions.
(2) Any money paid into the Agency Fund under
subsection (1) for or on behalf of a National Board must be paid into the
Board's account kept within the Agency Fund.
210 Payments out of Agency Fund
(1) Payments may be made from the Agency Fund for
the purpose of—
(a) paying any costs or expenses, or
discharging any liabilities, incurred in the administration or enforcement of
this Law; and
(b) making payments to co-regulatory
authorities; and
(c) any other payments recommended
by the National Board or National Agency and approved by the Ministerial
Council.
(2) Without limiting subsection (1)(a), a payment
may be made from the Agency Fund to a responsible tribunal to meet the
expenses of the responsible tribunal in performing functions under this Law.
(3) A payment under subsection (1) may be made
from a National Board's account kept within the Agency Fund only if the
payment is in accordance with the Board's budget or otherwise approved by the
Board.
211 Investment of money in Agency Fund
(1) Subject to this section, the National Agency
may invest money in the Agency Fund in the way it considers appropriate.
(2) The National Agency may invest money in a
National Board's account kept within the Agency Fund only if the Agency has
consulted the Board about the investment.
(3) An investment under this section must
be—
(a) in Australian money; and
(b) undertaken in Australia.
(4) The National Agency must use its best efforts
to invest money in the Agency Fund in a way it considers is most appropriate
in all the circumstances.
App.
(5) The National Agency must keep records that
show it has invested in the way most appropriate in the circumstances.
(6) A security, safe custody acknowledgment or
other document evidencing title accepted, guaranteed or issued for an
investment arrangement must be held by the National Agency.
212 Financial management duties of National Agency
and National Boards
(1) The National Agency must—
(a) ensure that its operations are
carried out efficiently, effectively and economically; and
(b) keep proper books and records in
relation to the Agency Fund; and
(c) ensure that expenditure is made
from the Agency Fund for lawful purposes only and, as far as possible,
reasonable value is obtained for moneys expended from the Fund; and
(d) ensure that its procedures,
including internal control procedures, afford adequate safeguards with respect
to—
(i) the
correctness, regularity and propriety of payments made from the Agency Fund;
and
(ii) receiving
and accounting for payments made to the Agency Fund; and
(iii)
prevention of fraud or mistake; and
(e) take any action necessary to
ensure the preparation of accurate financial statements in accordance with
Australian Accounting Standards for inclusion in its annual report; and
(f) take any action necessary to
facilitate the audit of those financial statements in accordance with this
Law; and
(g) arrange for any further audit by
a qualified person of the books and records kept by the National Agency in
relation to the Agency Fund, if directed to do so by the Ministerial Council.
(2) A National Board must—
(a) ensure that its operations are
carried out efficiently, effectively and economically; and
(b) take any action necessary to
ensure that the National Agency is able to comply with this section in
relation to the funding of the National Board in exercising its functions.
Part 10 Information and privacy
Division 1 Privacy
213 Application of Commonwealth Privacy Act
App.
(1) The Privacy Act applies as a law of a
participating jurisdiction for the purposes of the national registration and
accreditation scheme.
(2) For the purposes of subsection (1), the
Privacy Act applies—
(a) as if a reference to the Office
of the Privacy Commissioner were a reference to the Office of the National
Health Practitioners Privacy Commissioner; and
(b) as if a reference to the Privacy
Commissioner were a reference to the National Health Practitioners Privacy
Commissioner; and
(c) with any other modifications
made by the regulations.
(3) Without limiting subsection (2)(c), the
regulations may—
(a) provide that the Privacy Act
applies under subsection (1) as if a provision of the Privacy Act specified in
the regulations were omitted; or
(b) provide that the Privacy Act
applies under subsection (1) as if an amendment to the Privacy Act made by a
law of the Commonwealth, and specified in the regulations, had not taken
effect; or
(c) confer jurisdiction on a
tribunal or court of a participating jurisdiction.
(4) In this section—
"Privacy Act" means the Privacy Act 1988of the Commonwealth, as in force from
time to time.
Division 2 Disclosure of information and confidentiality
214 Definition
App.
In this Division—
"protected information" means information that comes to a person's knowledge
in the course of, or because of, the person exercising functions under this
Law.
215 Application of Commonwealth FOI Act
(1) The FOI Act applies as a law of a
participating jurisdiction for the purposes of the national registration and
accreditation scheme.
(2) The regulations under this Law may modify the
FOI Act for the purposes of this Law.
(3) Without limiting subsection (2), the
regulations may—
(a) provide that the FOI Act applies
under subsection (1) as if a provision of the FOI Act specified in the
regulations were omitted; or
(b) provide that the FOI Act applies
under subsection (1) as if an amendment to the FOI Act made by a law of the
Commonwealth, and specified in the regulations, had not taken effect; or
(c) confer jurisdiction on a
tribunal or court of a participating jurisdiction.
(1) A person who is, or has been, a person
exercising functions under this Law must not disclose to another person
protected information.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) However, subsection (1) does not apply
if—
(a) the information is disclosed in
the exercise of a function under, or for the purposes of, this Law; or
(b) the disclosure—
(i) is to a
co-regulatory authority; or
(ii) is
authorised or required by any law of a participating jurisdiction; or
App.
(c) the disclosure is otherwise
required or permitted by law; or
(d) the disclosure is with the
agreement of the person to whom the information relates; or
(e) the disclosure is in a form that
does not identify the identity of a person; or
(f) the information relates to
proceedings before a responsible tribunal and the proceedings are or were open
to the public; or
(g) the information is, or has been,
accessible to the public, including because it is or was recorded in a
National Register; or
(h) the disclosure is otherwise
authorised by the Ministerial Council.
217 Disclosure of information for workforce
planning
(1) The Ministerial Council may, by written notice
given to a National Board, ask the Board for information required by the
Council for planning the workforce of health practitioners, or a class of
practitioners, in Australia or a part of Australia.
(2) If a National Board receives a request under
subsection (1), the Board may, by written notice given to health practitioners
registered by the Board, ask the practitioners for information relevant to the
request.
(3) A registered health practitioner who is asked
to provide information under subsection (2) may, but is not required to,
provide the information.
(4) The National Board—
(a) must give information received
from a registered health practitioner to the Ministerial Council in a way that
does not identify any registered health practitioner; and
(b) must not use information
received under this section that identifies a registered health practitioner
for any other purpose.
(5) The Ministerial Council must publish
information it receives under this section in a way that is timely and ensures
it is accessible to the public.
218 Disclosure of information for information
management and communication purposes
App.
(1) A person may disclose protected information to
an information management agency if the disclosure is in accordance with an
authorisation given by the Ministerial Council under subsection (2).
(2) The Ministerial Council may authorise the
disclosure of protected information to an information management agency if the
Council is satisfied—
(a) the protected information will
be collected, stored and used by the information management agency in a way
that ensures the privacy of the persons to whom it relates is protected; and
(b) the provision of the protected
information to the information management agency is necessary to enable the
agency to exercise its functions.
(3) An authorisation under subsection (2)—
(a) may apply to protected
information generally or a class of protected information; and
(b) may be subject to conditions.
(4) In this section—
"information management agency" means a Commonwealth, State or Territory
agency that has functions relating to the identification of health
practitioners for information management and communication purposes,
including, for example, the National E-health Transition Authority.
219 Disclosure of information to other
Commonwealth, State and Territory entities
(1) A person exercising functions under this Law
may disclose protected information to the following entities—
(a) the chief executive officer
under the Medicare Australia Act 1973 of the Commonwealth;
(d) the Secretary to the Department
in which the Migration Act 1958 of the Commonwealth is administered;
(e) another Commonwealth, State or
Territory entity having functions relating to professional services provided
by health practitioners or the regulation of health practitioners.
App.
(2) However, a person may disclose protected
information under subsection (1) only if the person is satisfied—
(a) the protected information will
be collected, stored and used by the entity to which it is disclosed in a way
that ensures the privacy of the persons to whom it relates is protected; and
(b) the provision of the protected
information to the entity is necessary to enable the entity to exercise its
functions.
220 Disclosure to protect health or safety of
patients or other persons
(1) This section applies if a National Board
reasonably believes that—
(a) a registered health practitioner
poses, or may pose, a risk to public health; or
(b) the health or safety of a
patient or a class of patients is or may be at risk because of a registered
health practitioner's practice as a health practitioner.
(2) The National Board may give written notice of
the risk and any relevant information about the registered health practitioner
to an entity of the Commonwealth or of a State or Territory that the Board
considers may be required to take action in relation to the risk.
221 Disclosure to registration authorities
A person exercising functions under this Law may disclose protected
information to a registration authority if the disclosure is necessary for the
authority to exercise its functions.
Division 3 Registers in relation to registered health
practitioner
222 National Registers
(1) Each of the following National Boards must, in
conjunction with the National Agency—
(a) keep the public national
register listed beside that Board in the following Table that is to include
the names of all health practitioners, other than specialist health
practitioners, currently registered by the Board; and
App.
(b) if Divisions are listed beside
the public national register in the Table, keep the register in a way that
ensures it includes those Divisions.
(2) In addition, each National Board must keep a
public national register that is to include the names of all health
practitioners, other than specialist health practitioners, who were registered
by the Board and whose registration has been cancelled by an adjudication
body.
Table—Public national registers
Name of Board
Name of public national register
Divisions of public national register
Aboriginal and Torres Strait Islander Health Practice Board of Australia
Register of Aboriginal and Torres Strait Islander Health Practitioners
Chinese Medicine Board of Australia
Register of Chinese Medicine Practitioners
Acupuncturists, Chinese herbal medicine practitioners, Chinese herbal
dispensers
Chiropractic Board of Australia
Register of Chiropractors
Dental Board of Australia
Register of Dental Practitioners
Dentists, Dental therapists, Dental hygienists, Dental prosthetists, Oral
health therapists
Medical Board of Australia
Register of Medical Practitioners
Medical Radiation Practice Board of Australia
Register of Medical Radiation Practitioners
Diagnostic radiographers, Nuclear medicine technologists, Radiation therapists
The National Board established for a health profession for which specialist
recognition operates under this Law must, in conjunction with the National
Agency, keep—
(a) a public national specialists
register that includes the names of all specialist health practitioners
currently registered by the Board; and
(b) a public national register that
includes the names of all specialist health practitioners whose registration
has been cancelled by an adjudication body.
224 Way registers are to be kept
App.
Subject to this Division, a register a National Board is required to keep
under this Division must be kept—
(a) in a way that ensures it is
up-to-date and accurate; and
(b) otherwise in the way the
National Agency considers appropriate.
225 Information to be recorded in National
Register
A National Register or Specialists Register must include the following
information for each registered health practitioner whose name is included in
the register—
(a) the practitioner's sex;
(b) the suburb and postcode of the
practitioner's principal place of practice;
(c) the registration number or code
given to the practitioner by the National Board;
(d) the date on which the
practitioner was first registered in the health profession in Australia,
whether under this Law or a corresponding prior Act;
(e) the date on which the
practitioner's registration expires;
(f) the type of registration held by
the practitioner;
(g) if the register includes
divisions, the division in which the practitioner is registered;
(h) if the practitioner holds
specialist registration, the recognised specialty in which the practitioner is
registered;
(i) if the
practitioner holds limited registration, the purpose for which the
practitioner is registered;
(j) if the practitioner has been
reprimanded, the fact that the practitioner has been reprimanded;
(k) if a condition has been imposed
on the practitioner's registration or the National Board has entered into an
undertaking with the practitioner—
(i) if section
226(1) applies, the fact that a condition has been imposed or an undertaking
accepted; or
(ii) otherwise,
details of the condition or undertaking;
(l) if the practitioner's
registration is suspended, the fact that the practitioner's registration has
been suspended and, if the suspension is for a specified period, the period
during which the suspension applies;
App.
(m) if the practitioner's
registration has been endorsed, details of the endorsement;
(n) details of any qualifications
relied on by the practitioner to obtain registration or to have the
practitioner's registration endorsed;
(o) if the practitioner has advised
the National Board the practitioner fluently speaks a language other than
English, details of the other language spoken;
(p) any other information the
National Board considers appropriate.
226 National Board may decide not to include or to
remove certain information in register
(1) A National Board may decide that a condition
imposed on a registered health practitioner's registration, or the details of
an undertaking accepted from a registered health practitioner, because the
practitioner has an impairment is not to be recorded in its National Register
or Specialists Register if—
(a) it is necessary to protect the
practitioner's privacy; and
(b) there is no overriding public
interest for the condition or the details of the undertaking to be recorded.
(2) A National Board may decide that information
relating to a registered health practitioner is not to be recorded in its
National Register or Specialists Register if—
(a) the practitioner asks the Board
not to include the information in the register; and
(b) the Board reasonably believes
the inclusion of the information in the register would present a serious risk
to the health or safety of the practitioner.
(3) A National Board may decide to remove
information that a registered health practitioner has been reprimanded from
the National Register or Specialists Register if it considers it is no longer
necessary or appropriate for the information to be recorded on the Register.
227 Register about former registered health
practitioners
A register kept by a National Board under section 222(2) or 223(b) must
include the following information for each health practitioner whose
registration was cancelled by an adjudication body—
(a) the fact that the practitioner's
registration was cancelled by an adjudication body;
(b) the grounds on which the
practitioner's registration was cancelled;
App.
(c) if the adjudication body's
hearing of the matter was open to the public, details of the conduct that
formed the basis of the cancellation.
228 Inspection of registers
(1) The National Agency—
(a) must keep each register kept by
a National Board under this Division open for inspection, free of charge, by
members of the public—
(i) at its
national office and each of its local offices during ordinary office hours;
and
(ii) on the
Agency's website; and
(b) must give a person an extract
from the register on payment of the relevant fee; and
(c) may give a person a copy of the
register on payment of the relevant fee.
(2) The National Agency may give a person a copy
of the register under subsection (1)(c) only if the Agency is satisfied it
would be in the public interest to do so.
(3) The National Agency may waive, wholly or
partly, the payment of a fee by a person under subsection (1)(b) or (c) if the
Agency considers it appropriate in the circumstances.
Division 4 Student registers
229 Student registers
(1) Each National Board must, in conjunction with
the National Agency, keep a student register that includes the name of all
persons currently registered as students by the Board.
(2) A student register is not to be open to
inspection by the public.
230 Information to be recorded in student register
App.
(1) Subject to this Division, a student register
kept by a National Board must be kept in the way the National Agency considers
appropriate.
(2) A student register kept by a National Board
must include the following information for each student whose name is included
in the register—
(a) the student's name;
(b) the student's date of birth;
(c) the student's sex;
(d) the student's mailing address
and any other contact details;
(e) the name of the education
provider that is providing the approved program of study being undertaken by
the student;
(f) the date on which the student
was first registered, whether under this law or a corresponding prior Act;
(g) the date on which the student
started the approved program of study;
(h) the date on which the student is
expected to complete the approved program of study;
(i) if the
student has completed or otherwise ceased to be enrolled in the approved
program of study, the date of the completion or cessation;
(j) if a condition has been imposed
on the student's registration, details of the condition;
(k) if the Board accepts an
undertaking from the student, details of the undertaking;
(l) any other information the Board
considers appropriate.
Division 5 Other records
231 Other records to be kept by National Boards
A National Board must keep a record of the following information for each
health practitioner it registers—
(a) information that identifies the
practitioner;
(b) the practitioner's contact
details;
(c) information about the
practitioner's registration or endorsement;
(d) information about any previous
registration of the practitioner, whether in Australia or overseas;
App.
(e) information about any
notification made about the practitioner and any investigation and health,
conduct or performance action taken as a result of the notification;
(f) information about the
practitioner's professional indemnity insurance arrangements;
(g) information about checks carried
out by the Board about the practitioner's criminal history and identity,
including the nature of the check carried out, when it was carried out and the
nature of the information provided by the check.
232 Record of adjudication decisions to be kept
and made publicly available
(1) A National Board is to keep and publish on its
website a record of decisions made by—
(a) panels established by the Board;
and
(b) responsible tribunals that
relate to registered health practitioners or students registered by the Board.
(2) The record is to be kept—
(a) in a way that does not identify
persons involved in the matter, unless the decision was made by a responsible
tribunal and the hearing was open to the public; and
(b) otherwise in the way decided by
the National Board.
Division 6 Unique identifier
233 Unique identifier to be given to each
registered health practitioner
(1) This section applies if—
(a) a National Board registers a
person in the health profession for which the Board is established; and
(b) the person has not previously
been registered by that Board or any other National Board.
(2) The National Board must, at the time of
registering the person, give the person an identifying number or code (a
unique identifier ) that is unique to the person.
(3) The National Board must keep a record of the
unique identifier given to the person.
App.
(4) If the person is subsequently registered by
the National Board or another Board the person is to continue to be identified
by the unique identifier given to the person under subsection (2).
Part 11 Miscellaneous
Division 1 Provisions relating to persons exercising functions
under Law
234 General duties of persons exercising functions
under this Law
(1) A person exercising functions under this Law
must, when exercising the functions, act honestly and with integrity.
(2) A person exercising functions under this Law
must exercise the person's functions under this Law—
(a) in good faith; and
(b) in a financially responsible
manner; and
(c) with a reasonable degree of
care, diligence and skill.
(3) A person exercising functions under this Law
must not make improper use of the person's position or of information that
comes to the person's knowledge in the course of, or because of, the person's
exercise of the functions—
(a) to gain an advantage for himself
or herself or another person; or
(b) to cause a detriment to the
development, implementation or operation of the national registration and
accreditation scheme.
(1) The Ombudsman Act applies as a law of a
participating jurisdiction for the purposes of the national registration and
accreditation scheme.
(2) For the purposes of subsection (1), the
Ombudsman Act applies—
(a) as if a reference to the
Commonwealth Ombudsman were a reference to the National Health Practitioners
Ombudsman; and
(b) with any other modifications
made by the regulations.
App.
(3) Without limiting subsection (2), the
regulations may—
(a) provide that the Ombudsman Act
applies under subsection (1) as if a provision of the Ombudsman Act specified
in the regulations were omitted; or
(b) provide that the Ombudsman Act
applies under subsection (1) as if an amendment to the Ombudsman Act made by a
law of the Commonwealth, and specified in the regulations, had not taken
effect; or
(c) confer jurisdiction on a
tribunal or court of a participating jurisdiction.
(4) In this section—
"Ombudsman Act" means the Ombudsman Act 1976of the Commonwealth, as in force
from time to time.
236 Protection from personal liability for persons
exercising functions
(1) A protected person is not personally liable
for anything done or omitted to be done in good faith—
(a) in the exercise of a function
under this Law; or
(b) in the reasonable belief that
the act or omission was the exercise of a function under this Law.
(2) Any liability resulting from an act or
omission that would, but for subsection (1), attach to a protected person
attaches instead to the National Agency.
(3) In this section—
"protected person" means any of the following—
(a) a member of the Advisory
Council;
(b) a member of the Agency
Management Committee;
(c) a member of a National Board or
a committee of the National Board;
(d) a member of an external
accreditation entity;
(e) a member of the staff of the
National Agency;
(f) a consultant or contractor
engaged by the National Agency;
(g) a person appointed by the
National Agency to conduct an examination or assessment for a National Board;
App.
(h) a person employed or engaged by
an external accreditation entity to assist it with its accreditation function.
237 Protection from liability for persons making
notification or otherwise providing information
(1) This section applies to a person who, in good
faith—
(a) makes a notification under this
Law; or
(b) gives information in the course
of an investigation or for another purpose under this Law to a person
exercising functions under this Law.
(2) The person is not liable, civilly, criminally
or under an administrative process, for giving the information.
(3) Without limiting subsection (2)—
(a) the making of the notification
or giving of the information does not constitute a breach of professional
etiquette or ethics or a departure from accepted standards of professional
conduct; and
(b) no liability for defamation is
incurred by the person because of the making of the notification or giving of
the information.
(4) The protection given to the person by this
section extends to—
(a) a person who, in good faith,
provided the person with any information on the basis of which the
notification was made or the information was given; and
(b) a person who, in good faith, was
otherwise concerned in the making of the notification or giving of the
information.
Division 2 Inspectors
238 Functions and powers of inspectors
(1) An inspector has the function of conducting
investigations to enforce compliance with this Law.
(2) Schedule 6 sets out provisions relating to the
powers of an inspector.
239 Appointment of inspectors
App.
(1) A National Board may appoint the following
persons as inspectors—
(a) members of the National Agency's
staff;
(b) contractors engaged by the
National Agency.
(2) An inspector holds office on the conditions
stated in the instrument of appointment.
(3) If an inspector's appointment provides for a
term of appointment, the inspector ceases holding office at the end of the
term.
(4) An inspector may resign by signed notice of
resignation given to the National Board that appointed the inspector.
240 Identity card
(1) A National Board must give an identity card to
each inspector it appoints.
(2) The identity card must—
(a) contain a recent photograph of
the inspector; and
(b) be signed by the inspector; and
(c) identify the person as an
inspector appointed by the National Board; and
(d) include an expiry date.
(3) This section does not prevent the issue of a
single identity card to a person—
(a) if the person is appointed as an
inspector for this Law by more than one National Board; or
(b) if the person is appointed as an
inspector and investigator for this Law by a National Board; or
(c) for this Law and other Acts.
(4) A person who ceases to be an inspector must
give the person's identity card to the National Board that appointed the
person within 7 days after the person ceases to be an inspector, unless the
person has a reasonable excuse.
241 Display of identity card
(1) An inspector may exercise a power in relation
to someone else (the "other person") only if the inspector—
(a) first produces the inspector's
identity card for the other person's inspection; or
(b) has the identity card displayed
so it is clearly visible to the other person.
(2) However, if for any reason it is not
practicable to comply with subsection (1) before exercising the power, the
inspector must produce the identity card for the other person's inspection at
the first reasonable opportunity.
Division 3 Legal proceedings
242 Proceedings for offences
App.
A proceeding for an offence against this Law is to be by way of a summary
proceeding before a court of summary jurisdiction.
243 Conduct may constitute offence and be subject
of disciplinary proceedings
(1) If a person's behaviour constitutes an offence
against this Law or another Act and constitutes professional misconduct,
unsatisfactory professional performance or unprofessional conduct under this
Law—
(a) the fact that proceedings for an
offence have been taken in relation to the behaviour does not prevent
proceedings being taken before an adjudication body under this Law for the
same behaviour; and
(b) the fact that proceedings have
been taken before an adjudication body under this Law in relation to the
conduct does not prevent proceedings for an offence being taken for the same
behaviour.
(2) If a person's behaviour may be dealt with by a
health complaints entity under the law of a participating jurisdiction and
constitutes professional misconduct, unsatisfactory professional performance
or unprofessional conduct under this Law—
(a) the fact that the behaviour has
been dealt with by the health complaints entity does not prevent proceedings
being taken before an adjudication body under this Law for the same behaviour;
and
(b) the fact that proceedings have
been taken before an adjudication body under this Law in relation to the
behaviour does not prevent action being taken by the health complaints entity
under the law of the participating jurisdiction for the same behaviour.
244 Evidentiary certificates
App.
A certificate purporting to be signed by the chief executive officer of the
National Agency and stating any of the following matters is prima facie
evidence of the matter—
(a) a stated document is one of the
following things made, given, issued or kept under this Law—
(i) an
appointment, approval or decision;
(ii) a notice,
direction or requirement;
(iii) a
certificate of registration;
(iv) a
register, or an extract from a register;
(v) a record,
or an extract from a record;
(b) a stated document is another
document kept under this Law;
(c) a stated document is a copy of a
document mentioned in paragraph (a) or (b);
(d) on a stated day, or during a
stated period, a stated person was or was not a registered health practitioner
or a student;
(e) on a stated day, or during a
stated period, a registration or endorsement was or was not subject to a
stated condition;
(f) on a stated day, a registration
was suspended or cancelled;
(g) on a stated day, or during a
stated period, an appointment as an investigator or inspector was, or was not,
in force for a stated person;
(h) on a stated day, a stated person
was given a stated notice or direction under this Law;
(i) on a stated
day, a stated requirement was made of a stated person.
Division 4 Regulations
245 National regulations
(1) The Ministerial Council may make regulations
for the purposes of this Law.
(2) The regulations may provide for any matter
that is necessary or convenient to be prescribed for carrying out or giving
effect to this Law.
(3) The regulations are to be published by the
Victorian Government Printer in accordance with the arrangements for the
publication of the making of regulations in Victoria.
App.
(4) A regulation commences on the day or days
specified in the regulation for its commencement (being not earlier than the
date it is published).
(5) In this section—
"Victorian Government Printer" means the person appointed to be the Government
Printer for Victoria under section 72 of the Constitution Act 1975 of
Victoria.
246 Parliamentary scrutiny of national regulations
(1) A regulation made under this Law may be
disallowed in a participating jurisdiction by a House of the Parliament of
that jurisdiction—
(a) in the same way that a
regulation made under an Act of that jurisdiction may be disallowed; and
(b) as if the regulation had been
tabled in the House on the first sitting day after the regulation was
published by the Victorian Government Printer.
(2) A regulation disallowed under subsection (1)
does not cease to have effect in the participating jurisdiction, or any other
participating jurisdiction, unless the regulation is disallowed in a majority
of the participating jurisdictions.
(3) If a regulation is disallowed in a majority of
the participating jurisdictions, it ceases to have effect in all participating
jurisdictions on the date of its disallowance in the last of the jurisdictions
forming the majority.
(4) In this section—
"regulation" includes a provision of a regulation.
247 Effect of disallowance of national regulation
(1) The disallowance of a regulation in a majority
of jurisdictions has the same effect as a repeal of the regulation.
(2) If a regulation ceases to have effect under
section 246 any law or provision of a law repealed or amended by the
regulation is revived as if the disallowed regulation had not been made.
(3) The restoration or revival of a law under
subsection (2) takes effect at the beginning of the day on which the
disallowed regulation by which it was amended or repealed ceases to have
effect.
(4) In this section—
"regulation" includes a provision of a regulation.
Division 5 Miscellaneous
248 Combined notice may be given
App.
If an entity is required under this Law to give another entity (the
recipient ) notices under more than one provision, the entity may give the
recipient a combined notice for the provisions.
249 Fees
The National Agency may, in accordance with a health profession agreement
entered into with a National Board—
(a) refund a relevant fee paid into
the Board's account kept in the Agency Fund; or
(b) waive, in whole or in part, a
relevant fee payable for a service provided by the Board; or
(c) require a person who pays a
relevant fee late to pay an additional fee.
Part 12 Transitional provisions
Division 1 Preliminary
250 Definitions
In this Part—
"commencement day" means 1 July 2010.
"local registration authority" means an entity that had functions under a law
of a participating jurisdiction that included the registration of persons as
health practitioners.
"participation day", for a participating jurisdiction, means—
(a) for a health profession other
than a relevant health profession—
(i) 1 July
2010; or
(ii) the later
day on which the jurisdiction became a participating jurisdiction; or
App.
(b) for a relevant health
profession, 1 July 2012.
"relevant health profession" means—
(a) Aboriginal and Torres Strait
Islander health practice; or
(b) Chinese medicine; or
(c) medical radiation practice; or
(d) occupational therapy.
"repealed Law" means the Health Practitioner Regulation (Administrative
Arrangements) National Law set out in the Schedule to the Health Practitioner
Regulation (Administrative Arrangements) National Law Act 2008 of Queensland.
251 References to registered health practitioners
(1) A reference in an Act of a participating
jurisdiction, or another instrument, to the Health Practitioner Regulation
(Administrative Arrangements) National Law may, if the context permits, be
taken to be a reference to this Law.
(2) A reference in an Act of a participating
jurisdiction, or another instrument, to a health practitioner registered in a
health profession under a corresponding prior Act may, if the context permits,
be taken after the participation day to be a reference to a health
practitioner registered in the health profession under this Law.
Division 2 Ministerial Council
252 Directions given by Ministerial council
A direction given by the Ministerial Council to the National Agency or a
National Board under the repealed Law, and in force immediately before the
commencement day, is taken from the commencement day to be a direction given
by the Ministerial Council under this Law.
253 Accreditation functions exercised by existing
accreditation entities
(1) This section applies to an entity that,
immediately before the commencement day, was an entity appointed by the
Ministerial Council under the repealed Law to exercise functions with respect
to accreditation for a health profession under the national registration and
accreditation scheme.
(2) From the commencement day, the entity is taken
to have been appointed under this Law to exercise the functions for the health
profession.
App.
(3) An accreditation standard approved by the
entity for a health profession, and in force immediately before the
commencement day, is taken to be an approved accreditation standard for the
health profession under this Law.
(4) The National Board established for the health
profession must, not later than 3 years after the commencement day, review the
arrangements for the exercise of accreditation functions for the health
profession.
(5) The National Board must ensure the process for
the review includes wide-ranging consultation about the arrangements for the
exercise of the accreditation functions.
(6) If an entity is taken under subsection (2) to
have been appointed to exercise an accreditation function for a health
profession, the National Board established for the profession must not, before
the day that is 3 years after the commencement day, end that entity's
appointment.
254 Health profession standards approved by
Ministerial Council
A health profession standard approved by the Ministerial Council under the
repealed Law is taken from the commencement day to be an approved registration
standard under this Law.
255 Accreditation standards approved by National
Board
An accreditation standard approved by a National Board under the repealed Law
is taken from the commencement day to be an approved accreditation standard
under this Law.
Division 3 Advisory Council
256 Members of Advisory Council
(1) A person who was, immediately before the
commencement day, a member of the Australian Health Workforce Advisory Council
under the repealed Law is taken to be a member of the Advisory Council under
this Law.
(2) Without limiting subsection (1), a member of
the Advisory Council continues to hold office—
App.
(a) on the same terms and conditions
that applied to the member's appointment under the repealed Law; and
(b) until the day the member's term
of appointment under the repealed Law would have ended or the earlier day the
member otherwise vacates office under this Law.
(3) The person who, immediately before the
commencement day, held office as Chairperson of the Australian Health
Workforce Advisory Council under the repealed Law continues to hold office as
Chairperson of the Advisory Council under this Law.
Division 4 National Agency
257 Health profession agreements
From the commencement day, a health profession agreement entered into by the
Australian Health Practitioner Regulation Agency and in force immediately
before the commencement day is taken to be a health profession agreement
entered into by the National Agency under this Law.
258 Service agreement
(1) This section applies if, immediately before
the participation day for a participating jurisdiction—
(a) a local registration authority
in that jurisdiction exercised functions in relation to related health
professionals; or
(b) a local registration authority
in that jurisdiction was a party to a service agreement for an entity to
provide administrative or operational support to the authority and the entity
also provided support under a service agreement to an authority that registers
related health professionals.
(2) From the participation day for the
participating jurisdiction, the National Agency may enter into an agreement
with the authority that is responsible for registering the related health
professionals to provide services to the authority.
(3) In this section—
"related health professionals" means persons who practise a profession
providing health services that is not a health profession under this Law.
Division 5 Agency Management Committee
259 Members of Agency Management Committee
App.
(1) A person who was, immediately before the
commencement day, a member of the Australian Health Practitioner Regulation
Agency Management Committee under the repealed Law is taken to be a member of
the Agency Management Committee appointed under this Law.
(2) Without limiting subsection (1), a member of
the Agency Management Committee continues to hold office—
(a) on the same terms and conditions
that applied to the person's appointment under the repealed Law; and
(b) until the day the member's term
of appointment under the repealed Law would have ended or the earlier day the
member otherwise vacates office under this Law.
(3) The person who, immediately before the
commencement day, held office as Chairperson of the Australian Health
Practitioner Regulation Agency Management Committee under the repealed Law
continues to hold office as Chairperson of the Agency Management Committee
under this Law.
Division 6 Staff, consultants and contractors of National Agency
260 Chief executive officer
The person who, immediately before the commencement day, held office as chief
executive officer of the Australian Health Practitioner Regulation Agency
under the repealed Law is taken, from the commencement day, to have been
appointed as the chief executive officer of the National Agency under this Law
on the same terms and conditions that applied to the person's appointment
under the repealed Law.
261 Staff
App.
(1) A person who, immediately before the
commencement day, was employed by the Australian Health Practitioner
Regulation Agency under the repealed Law is taken, from the commencement day,
to have been employed by the National Agency under this Law.
(2) A secondment arrangement in force immediately
before the commencement day is taken, from the commencement day, to have been
made by the National Agency under this Law.
(3) In this section—
"secondment arrangement" means an arrangement made under the repealed Law by
the Australian Health Practitioner Regulation Agency for the services of any
staff of a government agency of a participating jurisdiction or the
Commonwealth.
262 Consultants and contractors
A person who, immediately before the commencement day, was a consultant or
contractor engaged by the Australian Health Practitioner Regulation Agency
under the repealed Law is taken, from the commencement day, to have been
engaged by the National Agency under this Law.
Division 7 Reports
263 Annual report
Sections 35 and 36 of the repealed Law continue to apply to the preparation
and submission of the first annual report of the Australian Health
Practitioner Regulation Agency as if this Law had not commenced.
Division 8 National Boards
264 Members of National Boards
(1) A person who was, immediately before the
commencement day, a member of a National Health Practitioner Board under the
repealed Law is taken to be a member of the National Board of the same name
under this Law.
(2) Without limiting subsection (1), a member of a
National Board holds office—
(a) on the same terms and conditions
that applied to the person's appointment under the repealed Law; and
(b) until the day the member's term
of appointment under the repealed Law would have ended or the earlier day the
member otherwise vacates office under this Law.
App.
(3) A person who, immediately before the
commencement day, held office as Chairperson of a National Health Practitioner
Board is taken, from the commencement day, to hold office as Chairperson of
the National Board of the same name.
265 Committees
(1) From the commencement day, a committee
established by a National Health Practitioner Board under the repealed Law and
in existence immediately before the commencement day is taken to be a
committee established under this Law by the National Board of the same name.
(2) A person who, immediately before the
commencement day, held office as a member of a committee established by a
National Health Practitioner Board under the repealed Law is taken, from the
commencement day, to hold office as a member of the committee as continued in
existence under subsection (1).
266 Delegation
(1) This section applies if, under the repealed
Law—
(a) a National Health Practitioner
Board had delegated any of its functions to a committee or the Australian
Health Practitioner Regulation Agency and the delegation was in force
immediately before the commencement day; or
(b) the Australian Health
Practitioner Regulation Agency had subdelegated a function delegated to it by
a National Health Practitioner Board to a member of the Agency's staff and the
subdelegation was in force immediately before the commencement day.
(2) From the commencement day, the delegation or
subdelegation continues as if it were a delegation or subdelegation under this
Law.
Division 9 Agency Fund
267 Agency Fund
From the commencement day, the Australian Health Practitioner Regulation
Agency Fund established by the repealed Law is taken to be the Agency Fund
established by this Law.
Division 10 Offences
268 Offences
App.
Proceedings for an offence against the repealed Law may be started or
continued as if this Law had not commenced.
Division 11 Registration
269 General registration
(1) This section applies to a person who,
immediately before the participation day for a participating jurisdiction,
held general registration (however described) in a health profession under the
law of that jurisdiction.
(2) From the participation day, the person is
taken to hold general registration under this Law in the health profession.
(3) In this section—
"general registration" includes—
(a) full registration, unconditional
registration and registration without conditions; and
(b) enrolment, unconditional
enrolment and enrolment without conditions.
270 Specialist registration
(1) This section applies if—
(a) immediately before the
participation day for a participating jurisdiction, a person was a specialist
health practitioner in a specialty in a health profession under the law of
that jurisdiction; and
(b) from the participation
day—
(i) the
specialty is a recognised specialty in the health profession under this Law;
or
(ii) a
recognised specialty in the health profession under this Law includes, or is
equivalent to, the specialty.
(2) From the participation day, the person is
taken to hold specialist registration in the recognised specialty in the
health profession under this Law.
(3) In this section—
App.
"corresponding purpose" means a purpose that is equivalent to, or
substantially equivalent to, a purpose for which limited registration may be
granted under this Law.
"specialist health practitioner", in a specialty in a health profession, means
a person who held specialist registration in, or was endorsed or otherwise
authorised to practise, the specialty in the health profession but does not
include a person who held registration to practise the profession only for a
corresponding purpose.
271 Provisional registration
(1) This section applies to a person who,
immediately before the participation day for a participating jurisdiction,
held registration (however described) under a law of that jurisdiction to
enable the person to complete a period of supervised practice or internship in
a health profession required for the person to be eligible for general
registration (however described) in the profession.
(2) From the participation day, the person is
taken to hold provisional registration in the health profession under this
Law.
272 Limited registration
(1) This section applies to a person who,
immediately before the participation day for a participating jurisdiction,
held a type of registration (however described) in a health profession under
the law of that jurisdiction that was granted for the practice of the health
profession only for a corresponding purpose.
(2) From the participation day, the person is
taken to hold limited registration in the health profession for that purpose
under this Law.
(3) In this section—
"corresponding purpose" means a purpose that is equivalent to, or
substantially equivalent to, a purpose for which limited registration may be
granted under this Law.
(1) This section applies to a person who,
immediately before the participation day for a participating jurisdiction,
held a type of registration (however described) in a health profession under
the law of that jurisdiction that was granted—
(a) subject to the following
conditions limiting the scope of the person's practise of the
profession—
(i) the person
must not practise the profession other than—
(A) to refer a person to another registered health
practitioner; or
App.
(B) to prescribe scheduled medicines in specified
circumstances; and
(ii) the person
must not receive a fee or other benefit for providing a service referred to in
subparagraph (i); or
(b) on the basis the person had
indicated the person was retired from regular practise and intended only to
practise on an occasional basis.
(2) From the participation day, the person is
taken to hold limited registration in the public interest under this Law for
the limited scope that applied to the person's practise of the health
profession immediately before the participation day.
274 Non-practising registration
(1) This section applies to a person who,
immediately before the participation day for a participating jurisdiction,
held a type of registration (however described) in a health profession under
the law of that jurisdiction that was granted subject to the condition that
the person must not practise the profession.
(2) From the participation day, the person is
taken to hold non-practising registration in the health profession under this
Law.
275 Registration for existing registered students
(1) This section applies if, immediately before
the participation day for a participating jurisdiction, a person held
registration as a student in a health profession under the law of that
jurisdiction.
(2) From the participation day, the person is
taken to hold student registration in the health profession under this Law.
276 Registration for new students
(1) This section applies in relation to a person
who, immediately before the participation day for a participating
jurisdiction—
(a) was a student undertaking a
program of study, provided by an education provider located in the
jurisdiction, that from the participation day is an approved program of study
for a health profession; and
(b) was not required under the law
of that jurisdiction to be registered as a student in the health profession to
undertake the program of study or any part of the program, including any
clinical training or other practice of the profession related to undertaking
the program.
App.
(2) Despite Division 7 of Part 7, the National
Board established for the health profession is not required before 1 March
2011 to register the student in the profession.
277 Other registrations
(1) This section applies if—
(a) immediately before the
participation day for a participating jurisdiction, a class of persons held a
type of registration in, or was endorsed or otherwise authorised to practise,
a health profession under the law of that jurisdiction; and
(b) from the participation day,
persons in that class are not registered, endorsed or otherwise authorised to
practise the profession by another provision of this Division.
(2) From the participation day, persons in that
class are taken to hold the type of registration in the health profession that
is specified for the class of persons in the registration transition plan
prepared under subsection (3) by the National Board established for that
profession.
(3) Before the participation day, each National
Board must prepare a registration transition plan that includes details of the
type of registration that is to be held under this Law by a class of persons
referred to in subsection (1).
(4) In preparing a registration transition plan, a
National Board must—
(a) comply with any directions given
by the Ministerial Council that are relevant to the transitional arrangements
for the registration of the class of persons; and
(b) have regard to the principle
that persons in the class are to be given the widest possible scope of
practice of the profession that is consistent with—
(i) the
authority the class of persons had to practise the profession before the
participation day; and
(ii) the
protection of the safety of the public.
278 Endorsements
App.
(1) This section applies to a person who,
immediately before the participation day for a participating
jurisdiction—
(a) held a type of registration in
that jurisdiction in a health profession for a corresponding purpose; or
(b) held general registration in
that jurisdiction in a health profession that had been endorsed for a
corresponding purpose.
(2) From the participation day, the person is
taken to hold general registration in the health profession that has been
endorsed under this Law for the purpose that is equivalent to, or
substantially equivalent to, the corresponding purpose.
(3) In this section—
"corresponding purpose" means a purpose that is equivalent to, or
substantially equivalent to, a purpose for which an endorsement may be granted
under this Law.
279 Conditions imposed on registration or
endorsement
(1) This section applies if—
(a) a person is taken to be
registered under this Law, or the person's registration under this Law is
taken to be endorsed, because of the person's registration or endorsement
under the law of a participating jurisdiction before the participation day for
the jurisdiction; and
(b) the person's registration or
endorsement under the law of that jurisdiction was, immediately before the
participation day, subject to a condition—
(i) whether
described as a condition, restriction or otherwise; and
(ii) whether
imposed by or under an Act of that jurisdiction.
(2) From the participation day, the person's
registration or endorsement under this Law is taken to be subject to the same
condition.
280 Expiry of registration and endorsement
App.
(1) This section applies if, under this Division,
a person is taken to be registered under this Law because of the person's
registration or endorsement under the law of a participating jurisdiction.
(2) The person's registration, and any endorsement
of the registration, expires on—
(a) if the person was registered in
more than one participating jurisdiction, the end of the latest day on which
under the law of a participating jurisdiction—
(i) any of the
registrations would have expired; or
(ii) an annual
registration fee for any of the registrations would have become payable; or
(b) otherwise, at the end of the day
on which under the law of the participating jurisdiction—
(i) the
registration would have expired; or
(ii) an annual
registration fee for the registration would have become payable.
(3) Subsection (2) does not prevent a National
Board suspending or cancelling the person's registration under this Law.
281 Protected titles for certain specialist health
practitioners
(1) This section applies if—
(a) immediately before the
participation day for a participating jurisdiction, a person held specialist
registration in a health profession in that jurisdiction; and
(b) on the participation day the
health profession is not a profession for which specialist recognition
operates under this Law.
(2) Despite section 118, the person does not
commit an offence during the transition period merely because the person takes
or uses—
(a) the title “specialist
health practitioner”; or
(b) another title the person was
entitled to use under the law of the participating jurisdiction as in force
immediately before the participation day.
(3) In this section—
"transition period" means the period—
(a) starting at the beginning of the
commencement day; and
(b) ending at the end of the day
that is 3 years after the commencement day.
282 First renewal of registration or endorsement
App.
(1) This section applies if—
(a) a health practitioner's
registration or endorsement expires under section 280; and
(b) the National Board decides to
renew the health practitioner's registration or endorsement under
section 112.
(2) Despite section 112(6), the National Board may
decide that the period for which the registration or endorsement is renewed is
a period of not more than 2 years.
283 Programs of study
(1) This section applies if, immediately before
the participation day for a participating jurisdiction, a program of study
provided a qualification for registration in a health profession in that
jurisdiction.
(2) From the participation day, the program of
study is taken to be an approved program of study for that health profession
as if it had been approved under this Law.
(3) The National Agency must, as soon as
practicable after the participation day, include an approved program of study
under subsection (2) in the list published under section 49(5).
284 Exemption from requirement for professional
indemnity insurance arrangements for midwives practising private midwifery
(1) During the transition period, a midwife does
not contravene section 129(1) merely because the midwife practises
private midwifery if—
(a) the practise occurs in a
participating jurisdiction in which, immediately before the participation day
for that jurisdiction, a person was not prohibited from attending homebirths
in the course of practising midwifery unless professional indemnity insurance
arrangements were in place; and
(b) informed consent has been given
by the woman in relation to whom the midwife is practising private midwifery;
and
App.
(c) the midwife complies with any
requirements set out in a code or guideline approved by the National Board
under section 39 about the practise of private midwifery, including—
(i) any
requirement in a code or guideline about reports to be provided by midwives
practising private midwifery; and
(ii) any
requirement in a code or guideline relating to the safety and quality of the
practise of private midwifery.
(2) A midwife who practises private midwifery
under this section is not required to include in an annual statement under
section 109 a declaration required by subsection (1)(a)(iv) and (v) of that
section in relation to the midwife's practise of private midwifery during a
period of registration that is within the transition period.
(3) For the purposes of this section, the
transition period—
(a) starts on 1 July 2010; and
(b) ends on the prescribed day.
(4) If the National Board decides appropriate
professional indemnity arrangements are available in relation to the practice
of private midwifery, the Board may recommend to the Ministerial Council that
the transition period, and the exemption provided by this section during the
transition period, should end.
(5) In this section—
"homebirth" means a birth in which the mother gives birth at her own home or
another person's home.
"informed consent" means written consent given by a woman after she has been
given a written statement by a midwife that includes—
(a) a statement that appropriate
professional indemnity insurance arrangements will not be in force in relation
to the midwife's practise of private midwifery; and
(b) any other information required
by the National Board.
"midwife" means a person whose name is included in the Register of Midwives
kept by the National Board.
"National Board" means the Nursing and Midwifery Board of Australia.
"private midwifery" means practising the nursing and midwifery
profession—
(a) in the course of attending a
homebirth; and
(b) without appropriate professional
indemnity insurance arrangements being in force in relation to that practise;
and
(c) other than as an employee of an
entity.
"transition period" means the period referred to in subsection (3).
Division 12 Applications for registration and endorsement
285 Applications for registration
(1) This section applies if, immediately before
the participation day for a participating jurisdiction, an application for
registration or renewal of registration in a health profession had been made
to a local registration authority for the jurisdiction but not decided.
(2) From the participation day, the application is
taken to have been made under this Law to the National Board for the health
profession.
286 Applications for endorsement
(1) This section applies if, immediately before
the participation day for a participating jurisdiction, an application for
endorsement or renewal of an endorsement of a registration in a health
profession had been made to a local registration authority for the
jurisdiction but not decided.
(2) From the participation day, the application is
taken to have been made under this Law to the National Board for the health
profession.
287 Disqualifications and conditions relevant to
applications for registration
App.
(1) This section applies if—
(a) under a corresponding prior Act
or another law of a participating jurisdiction, a person's registration in a
health profession had been cancelled in that jurisdiction by an entity; and
(b) in cancelling the person's
registration the entity also made any of the following decisions—
(i) a decision
to set a period during which the person was disqualified from applying for
registration, or being registered, in a health profession in the participating
jurisdiction;
(ii) a decision
to set conditions under which the person might reapply for registration in the
profession;
(iii) a
decision to set conditions that must be imposed on any future registration of
the person in the profession; and
(c) immediately before the
participation day, the decision was still in force.
(2) From the participation day, the decision
continues as if it had been made under this Law by the responsible tribunal
for the participating jurisdiction.
Division 13 Complaints, notifications and disciplinary
proceedings
288 Complaints and notifications made but not
being dealt with on participation day
(1) This section applies if, immediately before
the participation day for a participating jurisdiction, a local registration
authority for the jurisdiction had received but not started dealing with a
complaint or notification about a person registered in a health profession by
the authority.
(2) From the participation day, the complaint or
notification is taken to be a notification made under this Law to the National
Agency.
(3) This section does not apply to a co-regulatory
jurisdiction.
289 Complaints and notifications being dealt with
on participation day
App.
(1) This section applies if, immediately before
the participation day for a participating jurisdiction, a local registration
authority for the jurisdiction had started but not completed dealing with a
complaint or notification about a person registered in a health profession by
the authority.
(2) From the participation day—
(a) the complaint or notification is
taken to be a notification made under this Law and is to be dealt with by the
National Board for the health profession; and
(b) the notification is to continue
to be dealt with under the Act of the participating jurisdiction under which
it was made, and any proceedings or appeal relating to the notification may be
dealt with, as if that Act had not been repealed.
(3) For the purposes of this section, the Act of
the participating jurisdiction applies—
(a) as if a reference to the local
registration authority were a reference to the National Board; and
(b) with any other changes that are
necessary or convenient.
(4) The National Board must give effect to a
decision made on an inquiry, investigation, proceeding or appeal completed
under the Act of the participating jurisdiction as if it were a decision under
this Law.
(5) This section does not apply to a co-regulatory
jurisdiction.
290 Effect of suspension
(1) This section applies if—
(a) because of another provision of
this Part, a person is taken to be registered under this Law; and
(b) immediately before the
participation day for the participating jurisdiction in which the person was
registered under a corresponding prior Act, the person's registration was
suspended under a law of that jurisdiction.
(2) From the participation day, the person's
registration is taken to have been suspended under this Law.
291 Undertakings and other agreements
App.
(1) This section applies if, immediately before
the participation day for a participating jurisdiction, an undertaking or
other agreement between a person registered under a corresponding prior Act
and the local registration authority for a health profession was in force.
(2) From the participation day, the undertaking or
other agreement is taken to have been entered into under this Law between the
person and the National Board established for the health profession.
292 Orders
(1) This section applies if—
(a) under a corresponding prior Act
of a participating jurisdiction, an adjudication body had, at the end of a
proceeding before the adjudication body about a health practitioner's practice
or conduct, ordered the health practitioner to do, or refrain from doing,
something; and
(b) immediately before the
participation day, the order was still in force.
(2) From the participation day, the order
continues in force as if it had been made under this Law.
(3) In this section—
"adjudication body" means a court, tribunal, panel or local registration
authority.
293 List of approved persons
(1) This section applies if, immediately before
the participation day for a participating jurisdiction, a person was appointed
as a member of a list of persons approved to be appointed as members of a body
that exercised functions that correspond to a panel for a health profession.
(2) From the participation day, the person is
taken to have been appointed by the National Board established for the health
profession to the list kept by that Board under section 183.
Division 14 Local registration authority
294 Definition
App.
In this Division—
"transfer day", for a participating jurisdiction, means—
(a) for a health profession other
than a relevant health profession—
(i) 1 July
2010; or
(ii) the later
day on which the jurisdiction became a participating jurisdiction; or
(b) for a relevant health
profession, 1 July 2012.
295 Assets and liabilities
(1) From the transfer day for a participating
jurisdiction—
(a) the assets and liabilities of a
local registration authority for a health profession in a participating
jurisdiction are taken to be assets and liabilities of the National Agency and
are to be paid into or out of the account kept in the Agency Fund for the
National Board established for the profession; and
(b) any contract, other than an
employment contract, entered into by or on behalf of the local registration
authority and all guarantees, undertakings and securities given by or on
behalf of the authority, in force immediately before the participation day,
are taken to have been entered into or given by or to the National Agency and
may be enforced against or by the Agency; and
(c) any property that, immediately
before the participation day, was held on trust, or subject to a condition, by
the local registration authority continues to be held by the National Agency
on the same trust, or subject to the same condition and is to be paid into the
account kept in the Agency Fund for the National Board.
(2) In this section—
"employment contract" means either of the following under which a person is
employed—
(a) a contract of employment;
(b) a contract for services.
296 Records relating to registration and
accreditation
App.
(1) This section applies to a record of a local
registration authority for a health profession in a participating jurisdiction
that relates to the authority's functions in relation to the following—
(a) the registration of individuals;
(b) complaints and notifications
about, and proceedings against, individuals who are or were registered;
(c) accreditation of courses that
qualify individuals for registration.
(2) From the transfer day for the participating
jurisdiction, the record is taken to be a record of the National Board for the
health profession.
297 Financial and administrative records
(1) This section applies to a record of a local
registration authority in a participating jurisdiction that relates to the
authority's financial or administrative functions.
(2) From the transfer day for the participating
jurisdiction, the record is taken to be a record of the National Agency.
298 Pharmacy businesses and premises
Sections 295 to 297 do not apply to an asset, liability, contract, property or
record of a local registration authority that relates to the regulation of a
pharmacy business, pharmacy premises, a pharmacy department or any other
pharmacy-related entity that is not an individual.
299 Members of local registration authority
(1) This section applies if, in anticipation of a
jurisdiction becoming a participating jurisdiction, a National Board
established for a health profession establishes a State or Territory Board for
the jurisdiction.
(2) A person who, immediately before the State or
Territory Board was established, was a member of the local registration
authority for the profession in the participating jurisdiction is taken to be
a member of the State or Territory Board.
(3) Section 36(5) and (6) do not apply to the
membership of a State or Territory Board for a jurisdiction for 12 months
after the jurisdiction becomes a participating jurisdiction.
Note.
Section 36(5) and (6) provide requirements for the number of practitioner
members and community members required by a State or Territory Board.
Division 15 Staged commencement for certain health professions
300 Application of Law to relevant health
profession between commencement and 1 July 2012
App.
(1) This Law does not apply with respect to a
relevant health profession during the period starting on the commencement day
and ending on 30 June 2011.
(2) The following Parts of this Law do not apply
with respect to a relevant health profession during the period starting on 1
July 2011 and ending on 30 June 2012—
(a) Part 7, other than Division 10;
(b) Parts 8 to 11.
(3) Despite subsection (2)(a), a person does not
commit an offence against a provision of Division 10 of Part 7 merely because,
before 1 July 2012, the person—
(a) takes or uses a title, name,
initial, symbol, word or description that, having regard to the circumstances
in which it is taken or used, indicates or could be reasonably understood to
indicate that the person is authorised or qualified to practise in a relevant
health profession; or
(b) uses a title that is listed in
the Table to section 113 opposite a relevant health profession.
301 Ministerial Council may appoint external
accreditation entity
(1) The Ministerial Council may appoint an entity,
other than a committee established by a National Board, to exercise an
accreditation function for a relevant health profession.
(2) Without limiting subsection (1), an entity
that accredited courses for the purposes of registration in a relevant health
profession under a corresponding prior Act may be appointed to exercise an
accreditation function for the profession under this Law.
(3) The National Board established for the health
profession must, not later than 1 July 2015, review the arrangements for the
exercise of the accreditation functions for the health profession.
App.
(4) The National Board must ensure the process for
the review includes wide-ranging consultation about the arrangements for the
exercise of the accreditation functions.
(5) If an entity is appointed under subsection (1)
to exercise an accreditation function for a health profession, the National
Board established for the profession must not, before 1 July 2015, end that
entity's appointment.
302 Application of Law to appointment of first
National Board for relevant professions
Despite section 34(2), a person is eligible for appointment as a practitioner
member of the first National Board for a relevant health profession if the
person—
(a) is registered in the profession
under a law of a participating jurisdiction; or
(b) holds a qualification that
entitles the person to registration in the profession under a law of a
participating jurisdiction; or
(c) is otherwise eligible to apply
for or hold registration in the profession under the law of a participating
jurisdiction.
303 Qualifications for general registration in
relevant profession
(1) For the purposes of section 52(1)(a), an
individual who applies for registration in a relevant health profession before
1 July 2015 is qualified for general registration in the profession if the
individual—
(a) holds a qualification or has
completed training in the profession, whether in a participating jurisdiction
or elsewhere, that the National Board established for the profession considers
is adequate for the purposes of practising the profession; or
(b) holds a qualification or has
completed training in the profession, whether in a participating jurisdiction
or elsewhere, and has completed any further study, training or supervised
practice in the profession required by the Board for the purposes of this
section; or
(c) has practised the profession at
any time between 1 July 2002 and 30 June 2012 for a consecutive period of
5 years or for any periods which together amount to 5 years.
(2) This section applies despite section 53.
304 Relationship with other provisions of Law
App.
This Division applies despite any other provision of this Law but does not
affect the operation of clause 30 of Schedule 7.
Division 16 Savings and transitional regulations
305 Savings and transitional regulations
(1) The regulations may contain provisions (
savings and transitional provisions ) of a savings or transitional
nature—
(a) consequent on the enactment of
this Law in a participating jurisdiction; or
(b) to otherwise allow or facilitate
the change from the operation of a law of the participating jurisdiction
relating to health practitioners to the operation of this Law.
(2) Savings and transitional provisions may have
retrospective operation to a day not earlier than the participation day for
that participating jurisdiction.
(3) This section and any savings and transitional
provisions expire on 30 June 2015.
Schedule 1 Constitution and procedure of Advisory Council
(Section 22)
Part 1 General
1 Definitions
In this Schedule—
"Chairperson" means the Chairperson of the Advisory Council.
"member" means a member of the Advisory Council.
Part 2 Constitution
2 Terms of office of members
App.
Subject to this Schedule, a member holds office for the period
(not exceeding 3 years) specified in the member's instrument of
appointment, but is eligible (if otherwise qualified) for reappointment.
3 Remuneration
A member is entitled to be paid such remuneration (including travelling and
subsistence allowances) as the Ministerial Council may from time to time
determine with respect to the member.
4 Vacancy in office of member
(1) The office of a member becomes vacant if the
member—
(a) completes the member's term of
office; or
(b) resigns the office by instrument
in writing addressed to the Chairperson of the Ministerial Council; or
(c) is removed from office by the
Chairperson of the Ministerial Council under this clause; or
(d) dies.
(2) The Chairperson of the Ministerial Council may
remove a member from office if—
(a) the member has been found guilty
of an offence (whether in a participating jurisdiction or elsewhere) that, in
the opinion of the Chairperson of the Ministerial Council, renders the member
unfit to continue to hold the office of member; or
(b) the member ceases to be a
registered health practitioner as a result of the member's misconduct,
impairment or incompetence; or
(c) the Advisory Council recommends
the removal of the member, on the basis that the member has engaged in
misconduct or has failed or is unable to properly exercise the member's
functions as a member.
App.
(3) In addition, the Chairperson of the
Ministerial Council may remove the Chairperson of the Advisory Council from
office as a member if the Chairperson of the Advisory Council becomes a
registered health practitioner.
5 Extension of term of office during vacancy in
membership
(1) If the office of a member becomes vacant
because the member has completed the member's term of office, the member is
taken to continue to be a member during that vacancy until the date on which
the vacancy is filled (whether by reappointment of the member or appointment
of a successor to the member).
(2) However, this clause ceases to apply to the
member if—
(a) the member resigns the member's
office by instrument in writing addressed to the Chairperson of the
Ministerial Council; or
(b) the Chairperson of the
Ministerial Council determines that the services of the member are no longer
required.
(3) The maximum period for which a member is taken
to continue to be a member under this clause after completion of the member's
term of office is 6 months.
6 Disclosure of conflict of interest
(1) If—
(a) a member has a direct or
indirect pecuniary or other interest in a matter being considered or about to
be considered at a meeting of the Advisory Council; and
(b) the interest appears to raise a
conflict with the proper performance of the member's duties in relation to the
consideration of the matter;
the member must, as soon as possible after the relevant facts have come to the
member's knowledge, disclose the nature of the interest at a meeting of the
Advisory Council.
(2) Particulars of any disclosure made under this
clause must be recorded by the Advisory Council in a book kept for the
purpose.
(3) After a member has disclosed the nature of an
interest in any matter, the member must not, unless the Ministerial Council or
the Advisory Council otherwise determines—
(a) be present during any
deliberation of the Advisory Council with respect to the matter; or
App.
(b) take part in any decision of the
Advisory Council with respect to the matter.
(4) For the purposes of the making of a
determination by the Advisory Council under subclause (3), a member who has a
direct or indirect pecuniary or other interest in a matter to which the
disclosure relates must not—
(a) be present during any
deliberation of the Advisory Council for the purpose of making the
determination; or
(b) take part in the making of the
determination by the Advisory Council.
(5) A contravention of this clause does not
invalidate any decision of the Advisory Council.
Part 3 Procedure
7 General procedure
The procedure for the calling of meetings of the Advisory Council and for the
conduct of business at those meetings is, subject to this Law, to be as
determined by the Advisory Council.
8 Quorum
The quorum for a meeting of the Advisory Council is a majority of its members
for the time being.
9 Presiding member
The Chairperson (or, in the absence of the Chairperson, a person elected by
the members of the Advisory Council who are present at a meeting of the
Advisory Council) is to preside at a meeting of the Advisory Council.
10 Transaction of business outside meetings or by
telecommunication
App.
(1) The Advisory Council may, if it thinks fit,
transact any of its business by the circulation of papers among all the
members of the Advisory Council for the time being, and a resolution in
writing approved in writing by a majority of those members is taken to be a
decision of the Advisory Council.
(2) The Advisory Council may, if it thinks fit,
transact any of its business at a meeting at which members (or some members)
participate by telephone, closed-circuit television or other means, but only
if any member who speaks on a matter before the meeting can be heard by the
other members.
(3) For the purposes of—
(a) the approval of a resolution
under subclause (1); or
(b) a meeting held in accordance
with subclause (2);
the Chairperson and each member have the same voting rights as they have at an
ordinary meeting of the Advisory Council.
(4) Papers may be circulated among the members for
the purposes of subclause (1) by facsimile, email or other transmission of the
information in the papers concerned.
11 First meeting
The Chairperson may call the first meeting of the Advisory Council in any
manner the Chairperson thinks fit.
Schedule 2 Agency Management Committee
(Section 29)
Part 1 General
1 Definitions
In this Schedule—
"Chairperson" means the Chairperson of the Committee.
"Committee" means the Agency Management Committee.
"member" means a member of the Committee.
Part 2 Constitution
2 Terms of office of members
App.
Subject to this Schedule, a member holds office for the period (not exceeding
3 years) specified in the member's instrument of appointment, but is eligible
(if otherwise qualified) for reappointment.
3 Remuneration
A member is entitled to be paid such remuneration (including travelling and
subsistence allowances) as the Ministerial Council may from time to time
determine with respect to the member.
4 Vacancy in office of member
(1) The office of a member becomes vacant if the
member—
(a) completes a term of office; or
(b) resigns the office by instrument
in writing addressed to the Chairperson of the Ministerial Council; or
(c) is removed from office by the
Chairperson of the Ministerial Council under this clause; or
(d) is absent, without leave first
being granted by the Chairperson of the Committee, from 3 or more consecutive
meetings of the Committee of which reasonable notice has been given to the
member personally or by post; or
(e) dies.
(2) The Chairperson of the Ministerial Council may
remove a member from office if—
(a) the member has been found guilty
of an offence (whether in a participating jurisdiction or elsewhere) that, in
the opinion of the Chairperson of the Ministerial Council, renders the member
unfit to continue to hold the office of member; or
(b) the member ceases to be a
registered health practitioner as a result of the member's misconduct,
impairment or incompetence; or
(c) the member becomes bankrupt,
applies to take the benefit of any law for the relief of bankrupt or insolvent
debtors, compounds with the member's creditors or makes an assignment of the
member's remuneration for their benefit; or
App.
(d) the Committee recommends the
removal of the member, on the basis that the member has engaged in misconduct
or has failed or is unable to properly exercise the member's functions as a
member.
(3) In addition, the Chairperson of the
Ministerial Council may remove the Chairperson of the Committee from office as
a member if the Chairperson of the Committee becomes a registered health
practitioner.
5 Vacancies to be advertised
(1) Before the Ministerial Council appoints a
member of the Committee, the vacancy to be filled is to be publicly
advertised.
(2) It is not necessary to advertise a vacancy in
the membership of the Committee before appointing a person to act in the
office of a member.
Note.
The general interpretation provisions applicable to this Law under section 6
confer power to appoint acting members of the Agency Management Committee.
6 Extension of term of office during vacancy in
membership
(1) If the office of a member becomes vacant
because the member has completed the member's term of office, the member is
taken to continue to be a member during that vacancy until the date on which
the vacancy is filled (whether by reappointment of the member or appointment
of a successor to the member).
(2) However, this clause ceases to apply to the
member if—
(a) the member resigns the member's
office by instrument in writing addressed to the Chairperson of the
Ministerial Council; or
(b) the Chairperson of the
Ministerial Council determines that the services of the member are no longer
required.
(3) The maximum period for which a member is taken
to continue to be a member under this clause after completion of the member's
term of office is 6 months.
7 Members to act in public interest
App.
(1) A member of the Committee is to act
impartially and in the public interest in the exercise of the member's
functions as a member.
(2) Accordingly, a member of the Committee is to
put the public interest before the interests of particular health
practitioners or any body or organisation that represents health
practitioners.
8 Disclosure of conflict of interest
(1) If—
(a) a member has a direct or
indirect pecuniary or other interest in a matter being considered or about to
be considered at a meeting of the Committee; and
(b) the interest appears to raise a
conflict with the proper performance of the member's duties in relation to the
consideration of the matter;
the member must, as soon as possible after the relevant facts have come to the
member's knowledge, disclose the nature of the interest at a meeting of the
Committee.
(2) Particulars of any disclosure made under this
clause must be recorded by the Committee in a book kept for the purpose.
(3) After a member has disclosed the nature of an
interest in any matter, the member must not, unless the Ministerial Council or
the Committee otherwise determines—
(a) be present during any
deliberation of the Committee with respect to the matter; or
(b) take part in any decision of the
Committee with respect to the matter.
(4) For the purposes of the making of a
determination by the Committee under subclause (3), a member who has a direct
or indirect pecuniary or other interest in a matter to which the disclosure
relates must not—
(a) be present during any
deliberation of the Committee for the purpose of making the determination; or
(b) take part in the making of the
determination by the Committee.
(5) A contravention of this clause does not
invalidate any decision of the Committee.
Part 3 Procedure
9 General procedure
App.
The procedure for the calling of meetings of the Committee and for the conduct
of business at those meetings is, subject to this Law, to be as determined by
the Committee.
10 Quorum
The quorum for a meeting of the Committee is a majority of its members for the
time being.
11 Chief executive officer may attend meetings
The chief executive officer of the National Agency may attend meetings of the
Committee and may participate in discussions of the Committee, but is not
entitled to vote at a meeting.
12 Presiding member
(1) The Chairperson (or, in the absence of the
Chairperson, a person elected by the members of the Committee who are present
at a meeting of the Committee) is to preside at a meeting of the Committee.
(2) The presiding member has a deliberative vote
and, in the event of an equality of votes, has a second or casting vote.
13 Voting
A decision supported by a majority of the votes cast at a meeting of the
Committee at which a quorum is present is the decision of the Committee.
14 Transaction of business outside meetings or by
telecommunication
(1) The Committee may, if it thinks fit, transact
any of its business by the circulation of papers among all the members of the
Committee for the time being, and a resolution in writing approved in writing
by a majority of those members is taken to be a decision of the Committee.
(2) The Committee may, if it thinks fit, transact
any of its business at a meeting at which members (or some members)
participate by telephone, closed-circuit television or other means, but only
if any member who speaks on a matter before the meeting can be heard by the
other members.
(3) For the purposes of—
(a) the approval of a resolution
under subclause (1); or
App.
(b) a meeting held in accordance
with subclause (2);
the Chairperson and each member have the same voting rights as they have at an
ordinary meeting of the Committee.
(4) Papers may be circulated among the members for
the purposes of subclause (1) by facsimile, email or other transmission of the
information in the papers concerned.
15 First meeting
The Chairperson may call the first meeting of the Committee in any manner the
Chairperson thinks fit.
16 Defects in appointment of members
A decision of the Committee is not invalidated by any defect or irregularity
in the appointment of any member (or acting member) of the Committee.
Schedule 3 National Agency
(Section 23)
Part 1 Chief executive officer
1 Chief executive officer
App.
(1) The Agency Management Committee is to appoint
a person as chief executive officer of the National Agency.
(2) The chief executive officer of the National
Agency is to be appointed for a period, not more than 5 years, specified in
the officer's instrument of appointment, but is eligible for reappointment.
(3) The chief executive officer of the National
Agency is taken, while holding that office, to be a member of the staff of the
National Agency.
2 Functions of chief executive officer
(1) The chief executive officer of the National
Agency has the functions conferred on the chief executive officer by written
instrument of the Agency Management Committee.
(2) The Agency Management Committee may delegate
any of the functions of the National Agency, or of the Agency Management
Committee, to the chief executive officer of the National Agency, other than
this power of delegation.
3 Delegation and subdelegation by chief executive
officer
(1) The chief executive officer of the National
Agency may delegate any of the functions conferred on the officer under clause
2(1) to a member of the staff of the National Agency, other than this power of
delegation.
(2) The chief executive officer of the National
Agency may subdelegate any function delegated to the officer under clause 2(2)
to any member of the staff of the National Agency if the chief executive
officer is authorised to do so by the Agency Management Committee.
4 Vacancy in office
(1) The office of the chief executive officer of
the National Agency becomes vacant if—
(a) the chief executive officer
resigns the officer's office by written instrument addressed to the
Chairperson of the Agency Management Committee; or
(b) the appointment of the chief
executive officer is terminated by the Agency Management Committee under this
clause.
(2) The Agency Management Committee may, at any
time and for any reason, terminate the appointment of the chief executive
officer of the National Agency by written notice given to the chief executive
officer.
Part 2 Staff, consultants and contractors
5 Staff of National Agency
App.
(1) The National Agency may, for the purpose of
performing its functions, employ staff.
(2) The staff of the National Agency are to be
employed on the terms and conditions decided by the National Agency from time
to time.
(3) Subclause (2) is subject to any relevant
industrial award or agreement that applies to the staff.
6 Staff seconded to National Agency
The National Agency may make arrangements for the services of any of the
following persons to be made available to the National Agency in connection
with the exercise of its functions—
(a) a person who is a member of the
staff of a government agency of a participating jurisdiction or the
Commonwealth;
(b) a person who is a member of the
staff of a local registration authority.
7 Consultants and contractors
(1) The National Agency may engage persons with
suitable qualifications and experience as consultants or contractors.
(2) The terms and conditions of engagement of
consultants or contractors are as decided by the National Agency from time to
time.
Part 3 Reporting obligations
8 Annual report
(1) The National Agency must, within 3 months
after the end of each financial year, submit an annual report for the
financial year to the Ministerial Council.
(2) The annual report must include—
(a) a financial statement for the
National Agency, and each National Board, for the period to which the report
relates; and
(b) a report about the Agency's
performance of its functions under this Law during the period to which the
annual report relates.
App.
(3) The financial statement is to be prepared in
accordance with Australian Accounting Standards.
(4) The financial statement is to be audited by a
public sector auditor and a report is to be provided by the auditor.
(5) The Ministerial Council is to make
arrangements for the tabling of the annual report of the National Agency, and
the report of the public sector auditor with respect to the financial
statement in the report, in the Parliament of each participating jurisdiction
and the Commonwealth.
(6) The Ministerial Council may extend, or further
extend, the period for submission of an annual report to the Council by a
total period of up to 3 months.
(7) In this clause—
"public sector auditor" means—
(a) the Auditor-General (however
described) of a participating jurisdiction; or
(b) an auditor employed, appointed
or otherwise engaged by an Auditor-General of a participating jurisdiction.
9 Reporting by National Boards
(1) A National Board must, if asked by the
National Agency, give the National Agency the information the National Agency
requires to compile its annual report, including—
(a) a report about the National
Board's performance of its functions under this Law during the period to which
the annual report relates; and
(b) a statement of the income and
expenditure of the National Board for the period to which the annual report
relates, presented by reference to the budget of the National Board for that
period.
App.
(2) The information provided by the National Board
is to be incorporated in the relevant annual report for the National Agency.
Schedule 4 National Boards
(Section 33)
Part 1 General
1 Definitions
In this Schedule—
"Chairperson" means the Chairperson of a National Board.
"community member" means a member of a National Board appointed as a community
member.
"member" means a member of a National Board.
Part 2 Constitution
2 Terms of office of members
Subject to this Schedule, a member holds office for the period
(not exceeding 3 years) specified in the member's instrument of
appointment, but is eligible (if otherwise qualified) for reappointment.
3 Remuneration
A member is entitled to be paid such remuneration (including travelling and
subsistence allowances) as the Ministerial Council may from time to time
determine with respect to the member.
4 Vacancy in office of member
(1) The office of a member becomes vacant if the
member—
(a) completes a term of office; or
(b) resigns the office by instrument
in writing addressed to the Chairperson of the Ministerial Council; or
(c) is removed from office by the
Chairperson of the Ministerial Council under this clause; or
(d) is absent, without leave first
being granted by the Chairperson of the Board, from 3 or more consecutive
meetings of the National Board of which reasonable notice has been given to
the member personally or by post; or
(e) dies.
(2) The Chairperson of the Ministerial Council may
remove a member from office if—
App.
(a) the member has been found guilty
of an offence (whether in a participating jurisdiction or elsewhere) that, in
the opinion of the Chairperson of the Ministerial Council, renders the member
unfit to continue to hold the office of member; or
(b) the member ceases to be a
registered health practitioner as a result of the member's misconduct,
impairment or incompetence; or
(c) the member ceases to be eligible
for appointment to the office that the member holds on the National Board; or
(d) the member becomes bankrupt,
applies to take the benefit of any law for the relief of bankrupt or insolvent
debtors, compounds with member's creditors or makes an assignment of the
member's remuneration for their benefit; or
(e) the National Board recommends
the removal of the member, on the basis that the member has engaged in
misconduct or has failed or is unable to properly exercise the member's
functions as a member.
5 Vacancies to be advertised
(1) Before the Ministerial Council appoints a
member of a National Board, the vacancy to be filled is to be publicly
advertised.
(2) The National Agency may assist the Ministerial
Council in the process of appointing members of a National Board, including in
the advertising of vacancies.
(3) It is not necessary to advertise a vacancy in
the membership of a National Board before appointing a person to act in the
office of a member.
Note.
The general interpretation provisions applicable to this Law under section 6
confer power to appoint acting members of a National Board.
6 Extension of term of office during vacancy in
membership
App.
(1) If the office of a member becomes vacant
because the member has completed the member's term of office, the member is
taken to continue to be a member during that vacancy until the date on which
the vacancy is filled (whether by reappointment of the member or appointment
of a successor to the member).
(2) However, this clause ceases to apply to the
member if—
(a) the member resigns the member's
office by instrument in writing addressed to the Chairperson of the
Ministerial Council; or
(b) the Chairperson of the
Ministerial Council determines that the services of the member are no longer
required.
(3) The maximum period for which a member is taken
to continue to be a member under this clause after completion of the member's
term of office is 6 months.
7 Members to act in public interest
(1) A member of a National Board is to act
impartially and in the public interest in the exercise of the member's
functions as a member.
(2) Accordingly, a member of a National Board is
to put the public interest before the interests of particular health
practitioners or any entity that represents health practitioners.
8 Disclosure of conflict of interest
(1) If—
(a) a member has a direct or
indirect pecuniary or other interest in a matter being considered or about to
be considered at a meeting of the National Board; and
(b) the interest appears to raise a
conflict with the proper performance of the member's duties in relation to the
consideration of the matter;
the member must, as soon as possible after the relevant facts have come to the
member's knowledge, disclose the nature of the interest at a meeting of the
National Board.
(2) Particulars of any disclosure made under this
clause must be recorded by the National Board in a book kept for the purpose.
(3) After a member has disclosed the nature of an
interest in any matter, the member must not, unless the Ministerial Council or
the National Board otherwise determines—
(a) be present during any
deliberation of the National Board with respect to the matter; or
(b) take part in any decision of the
National Board with respect to the matter.
(4) For the purposes of the making of a
determination by the National Board under subclause (3), a member who has a
direct or indirect pecuniary or other interest in a matter to which the
disclosure relates must not—
(a) be present during any
deliberation of the National Board for the purpose of making the
determination; or
App.
(b) take part in the making of the
determination by the National Board.
(5) A contravention of this clause does not
invalidate any decision of the National Board.
(6) This clause applies to a member of a committee
of a National Board and the committee in the same way as it applies to a
member of the National Board and the National Board.
Part 3 Functions and powers
9 Requirement to consult other National Boards
If a National Board (the first Board ) proposes to make a recommendation to
the Ministerial Council about a matter that may reasonably be expected to be
of interest to another National Board (the other Board), the first Board
must—
(a) consult with the other Board
about the proposed recommendation; and
(b) if the first Board makes the
recommendation to the Ministerial Council, advise the Council about any
contrary views expressed by the other Board about the recommendation.
10 Boards may obtain assistance
A National Board may, for the purposes of exercising its functions, obtain the
assistance of or advice from a local registration authority or another entity
having knowledge of matters relating to the health profession for which it is
established.
11 Committees
A National Board may establish committees to do any of the following—
(a) to develop registration
standards for the health profession for which the Board is established;
(b) to develop codes or guidelines
for the health profession for which the Board is established;
(c) to exercise any other functions
of the Board or to provide assistance or advice to the Board in the exercise
of its functions.
Part 4 Procedure
12 General procedure
App.
The procedure for the calling of meetings of the National Board and for the
conduct of business at those meetings is, subject to this Law, to be as
determined by the National Board.
13 Quorum
The quorum for a meeting of the National Board is a majority of its members
for the time being, at least one of whom is a community member.
14 Presiding member
(1) The Chairperson (or, in the absence of the
Chairperson, a person elected by the members of the National Board who are
present at a meeting of the National Board) is to preside at a meeting of the
National Board.
(2) The presiding member has a deliberative vote
and, in the event of an equality of votes, has a second or casting vote.
15 Voting
A decision supported by a majority of the votes cast at a meeting of the
National Board at which a quorum is present is the decision of the National
Board.
16 Transaction of business outside meetings or by
telecommunication
(1) The National Board may, if it thinks fit,
transact any of its business by the circulation of papers among all the
members of the National Board for the time being, and a resolution in writing
approved in writing by a majority of those members is taken to be a decision
of the National Board.
(2) The National Board may, if it thinks fit,
transact any of its business at a meeting at which members (or some members)
participate by telephone, closed-circuit television or other means, but only
if any member who speaks on a matter before the meeting can be heard by the
other members.
App.
(3) For the purposes of—
(a) the approval of a resolution
under subclause (1); or
(b) a meeting held in accordance
with subclause (2);
the Chairperson and each member have the same voting rights as they have at an
ordinary meeting of the National Board.
(4) Papers may be circulated among the members for
the purposes of subclause (1) by facsimile, email or other transmission of the
information in the papers concerned.
17 First meeting
The Chairperson may call the first meeting of the National Board in any manner
the Chairperson thinks fit.
18 Defects in appointment of members
A decision of the National Board or of a committee of the National Board is
not invalidated by any defect or irregularity in the appointment of any member
(or acting member) of the National Board or of a committee of the National
Board.
Schedule 5 Investigators
(section 163)
Part 1 Power to obtain information
1 Powers of investigators
App.
For the purposes of conducting an investigation, an investigator may, by
written notice given to a person, require the person to—
(a) give stated information to the
investigator within a stated reasonable time and in a stated reasonable way;
or
(b) attend before the investigator
at a stated time and a stated place to answer questions or produce documents.
2 Offence for failing to produce information or
attend before investigator
(1) A person required to give stated information
to an investigator under clause 1(a) must not fail, without reasonable excuse,
to give the information as required by the notice.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) A person given a notice to attend before an
investigator must not fail, without reasonable excuse, to—
(a) attend as required by the
notice; and
(b) continue to attend as required
by the investigator until excused from further attendance; and
(c) answer a question the person is
required to answer by the investigator; and
(d) produce a document the person is
required to produce by the notice.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(3) For the purposes of subclauses (1) and (2), it
is a reasonable excuse for an individual to fail to give stated information,
answer a question or to produce a document, if giving the information,
answering the question or producing the document might tend to incriminate the
individual.
3 Inspection of documents
(1) If a document is produced to an investigator,
the investigator may—
(a) inspect the document; and
(b) make a copy of, or take an
extract from, the document; and
(c) keep the document while it is
necessary for the investigation.
(2) If the investigator keeps the document, the
investigator must permit a person otherwise entitled to possession of the
document to inspect, make a copy of, or take an extract from, the document at
the reasonable time and place decided by the investigator.
Part 2 Power to enter places
4 Entering places
App.
For the purposes of conducting an investigation, an investigator may enter a
place if—
(a) its occupier consents to the
entry of the place; or
(b) it is a public place and the
entry is made when it is open to the public; or
(c) the entry is authorised by a
warrant.
5 Application for warrant
(1) An investigator may apply to a magistrate of a
participating jurisdiction for a warrant for a place.
(2) The investigator must prepare a written
application that states the grounds on which the warrant is sought.
(3) The written application must be sworn.
(4) The magistrate may refuse to consider the
application until the investigator gives the magistrate all the information
the magistrate requires about the application in the way the magistrate
requires.
6 Issue of warrant
App.
(1) The magistrate may issue the warrant only if
the magistrate is satisfied there are reasonable grounds for suspecting there
is evidence about a matter being investigated by the investigator at the
place.
(2) The warrant must state—
(a) that a stated investigator may,
with necessary and reasonable help and force—
(i) enter the
place and any other place necessary for entry; and
(ii) exercise
the investigator's powers under this Part; and
(b) the matter for which the warrant
is sought; and
(c) the evidence that may be seized
under the warrant; and
(d) the hours of the day or night
when the place may be entered; and
(e) the date, within 14 days after
the warrant's issue, the warrant ends.
7 Application by electronic communication
(1) An investigator may apply for a warrant by
phone, facsimile, email, radio, video conferencing or another form of
communication if the investigator considers it necessary because of—
(a) urgent circumstances; or
(b) other special circumstances,
including the investigator's remote location.
(2) The application—
(a) may not be made before the
investigator prepares the written application under clause 5(2); but
(b) may be made before the written
application is sworn.
(3) The magistrate may issue the warrant (the
original warrant ) only if the magistrate is satisfied—
(a) it was necessary to make the
application under subclause (1); and
(b) the way the application was made
under subclause (1) was appropriate.
(4) After the magistrate issues the original
warrant—
App.
(a) if there is a reasonably
practicable way of immediately giving a copy of the warrant to the
investigator, for example, by sending a copy by fax or email, the magistrate
must immediately give a copy of the warrant to the investigator; or
(b) otherwise—
(i) the
magistrate must tell the investigator the date and time the warrant is issued
and the other terms of the warrant; and
(ii) the
investigator must complete a form of warrant including by writing on it—
(B) the date and time the magistrate issued the
warrant; and
(C) the other terms of the warrant.
(5) The copy of the warrant referred to in
subclause (4)(a), or the form of warrant completed under subclause (4)(b) (in
either case the duplicate warrant ), is a duplicate of, and as effectual as,
the original warrant.
(6) The investigator must, at the first reasonable
opportunity, send to the magistrate—
(a) the written application
complying with clause 5(2) and (3); and
(b) if the investigator completed a
form of warrant under subclause (4)(b), the completed form of warrant.
(7) The magistrate must keep the original warrant
and, on receiving the documents under subclause (6), file the original warrant
and documents in the court.
(8) Despite subclause (5), if—
(a) an issue arises in a proceeding
about whether an exercise of a power was authorised by a warrant issued under
this clause; and
(b) the original warrant is not
produced in evidence;
the onus of proof is on the person relying on the lawfulness of the exercise
of the power to prove a warrant authorised the exercise of the power.
(9) This clause does not limit clause 5.
8 Procedure before entry under warrant
App.
(1) Before entering a place under a warrant, an
investigator must do or make a reasonable attempt to do the following—
(a) identify himself or herself to a
person present at the place who is an occupier of the place by producing the
investigator's identity card or another document evidencing the investigator's
appointment;
(b) give the person a copy of the
warrant;
(c) tell the person the investigator
is permitted by the warrant to enter the place;
(d) give the person an opportunity
to allow the investigator immediate entry to the place without using force.
(2) However, the investigator need not comply with
subclause (1) if the investigator reasonably believes that immediate entry to
the place is required to ensure the effective execution of the warrant is not
frustrated.
9 Powers after entering places
(1) This clause applies if an investigator enters
a place under clause 4.
(2) The investigator may for the purposes of the
investigation do the following—
(a) search any part of the place;
(b) inspect, measure, test,
photograph or film any part of the place or anything at the place;
(c) take a thing, or a sample of or
from a thing, at the place for analysis, measurement or testing;
(d) copy, or take an extract from, a
document, at the place;
(e) take into or onto the place any
person, equipment and materials the investigator reasonably requires for
exercising a power under this Part;
(f) require the occupier of the
place, or a person at the place, to give the investigator reasonable help to
exercise the investigator's powers under paragraphs (a) to (e);
(g) require the occupier of the
place, or a person at the place, to give the investigator information to help
the investigator in conducting the investigation.
(3) When making a requirement referred to in
subclause (2)(f) or (g), the investigator must warn the person it is an
offence to fail to comply with the requirement unless the person has a
reasonable excuse.
10 Offences for failing to comply with requirement
under clause 9
App.
(1) A person required to give reasonable help
under clause 9(2)(f) must comply with the requirement, unless the person has a
reasonable excuse.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) A person of whom a requirement is made under
clause 9(2)(g) must comply with the requirement, unless the person has a
reasonable excuse.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(3) It is a reasonable excuse for an individual
not to comply with a requirement under clause 9(2)(f) or (g) that complying
with the requirement might tend to incriminate the individual.
11 Seizure of evidence
(1) An investigator who enters a public place when
the place is open to the public may seize a thing at the place if the
investigator reasonably believes the thing is evidence that is relevant to the
investigation being conducted by the investigator.
(2) If an investigator enters a place with the
occupier's consent, the investigator may seize a thing at the place if—
(a) the investigator reasonably
believes the thing is evidence that is relevant to the investigation being
conducted by the investigator; and
(b) seizure of the thing is
consistent with the purpose of the entry as told to the occupier when asking
for the occupier's consent.
(3) If an investigator enters a place with a
warrant, the investigator may seize the evidence for which the warrant was
issued.
(4) For the purposes of subclauses (2) and (3),
the investigator may also seize anything else at the place if the investigator
reasonably believes—
(a) the thing is evidence that is
relevant to the investigation; and
(b) the seizure is necessary to
prevent the thing being hidden, lost or destroyed.
12 Securing seized things
Having seized a thing, an investigator may—
(a) move the thing from the place
where it was seized; or
(b) leave the thing at the place
where it was seized but take reasonable action to restrict access to it.
13 Receipt for seized things
(1) As soon as practicable after an investigator
seizes a thing, the investigator must give a receipt for it to the person from
whom it was seized.
(2) However, if for any reason it is not
practicable to comply with subclause (1), the investigator must leave the
receipt at the place of seizure in a conspicuous position and in a reasonably
secure way.
(3) The receipt must describe generally the seized
thing and its condition.
(4) This clause does not apply to a thing if it is
impracticable or would be unreasonable to give the receipt given the thing's
nature, condition and value.
14 Forfeiture of seized thing
(1) A seized thing is forfeited to the National
Agency if the investigator who seized the thing—
(a) cannot find its owner, after
making reasonable inquiries; or
(b) cannot return it to its owner,
after making reasonable efforts.
(2) In applying subclause (1)—
(a) subclause (1)(a) does not
require the investigator to make inquiries if it would be unreasonable to make
inquiries to find the owner; and
App.
(b) subclause (1)(b) does not
require the investigator to make efforts if it would be unreasonable to make
efforts to return the thing to its owner.
(3) Regard must be had to a thing's nature,
condition and value in deciding—
(a) whether it is reasonable to make
inquiries or efforts; and
(b) if making inquiries or efforts,
what inquiries or efforts, including the period over which they are made, are
reasonable.
15 Dealing with forfeited things
(1) On the forfeiture of a thing to the National
Agency, the thing becomes the Agency's property and may be dealt with by the
Agency as the Agency considers appropriate.
(2) Without limiting subclause (1), the National
Agency may destroy or dispose of the thing.
16 Return of seized things
(1) If a seized thing has not been forfeited, the
investigator must return it to its owner—
(a) at the end of 6 months; or
(b) if proceedings involving the
thing are started within 6 months, at the end of the proceedings and any
appeal from the proceedings.
(2) Despite subclause (1), unless the thing has
been forfeited, the investigator must immediately return a thing seized as
evidence to its owner if the investigator is no longer satisfied its continued
retention as evidence is necessary.
17 Access to seized things
(1) Until a seized thing is forfeited or returned,
an investigator must allow its owner to inspect it and, if it is a document,
to copy it.
(2) Subclause (1) does not apply if it is
impracticable or would be unreasonable to allow the inspection or copying.
Part 3 General matters
18 Damage to property
App.
(1) This clause applies if—
(a) an investigator damages property
when exercising or purporting to exercise a power; or
(b) a person (the other person )
acting under the direction of an investigator damages property.
(2) The investigator must promptly give written
notice of particulars of the damage to the person who appears to the
investigator to be the owner of the property.
(3) If the investigator believes the damage was
caused by a latent defect in the property or circumstances beyond the
investigator's or other person's control, the investigator must state the
belief in the notice.
(4) If, for any reason, it is impracticable to
comply with subclause (2), the investigator must leave the notice in a
conspicuous position and in a reasonably secure way where the damage happened.
(5) This clause does not apply to damage the
investigator reasonably believes is trivial.
(6) In this clause—
"owner", of property, includes the person in possession or control of it.
19 Compensation
(1) A person may claim compensation from the
National Agency if the person incurs loss or expense because of the exercise
or purported exercise of a power under this Schedule by the investigator.
(2) Without limiting subclause (1), compensation
may be claimed for loss or expense incurred in complying with a requirement
made of the person under this Schedule.
(3) Compensation may be claimed and ordered to be
paid in a proceeding brought in a court with jurisdiction for the recovery of
the amount of compensation claimed.
(4) A court may order compensation to be paid only
if it is satisfied it is fair to make the order in the circumstances of the
particular case.
20 False or misleading information
App.
A person must not state anything to an investigator that the person knows is
false or misleading in a material particular.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
21 False or misleading documents
(1) A person must not give an investigator a
document containing information the person knows is false or misleading in a
material particular.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) Subclause (1) does not apply to a person who,
when giving the document—
(a) informs the investigator, to the
best of the person's ability, how it is false or misleading; and
(b) gives the correct information to
the investigator if the person has, or can reasonably obtain, the correct
information.
22 Obstructing investigators
(1) A person must not obstruct an investigator in
the exercise of a power, unless the person has a reasonable excuse.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) If a person has obstructed an investigator and
the investigator decides to proceed with the exercise of the power, the
investigator must warn the person that—
(a) it is an offence to obstruct the
investigator, unless the person has a reasonable excuse; and
(b) the investigator considers the
person's conduct is an obstruction.
(3) In this clause—
"obstruct" includes hinder and attempt to obstruct or hinder.
23 Impersonation of investigators
App.
A person must not pretend to be an investigator.
Maximum penalty—$5,000.
Schedule 6 Inspectors
(Section 238)
Part 1 Power to obtain information
1 Powers of inspectors
(1) This clause applies if an inspector reasonably
believes—
(a) an offence against this Law has
been committed; and
(b) a person may be able to give
information about the offence.
(2) The inspector may, by written notice given to
a person, require the person to—
(a) give stated information to the
inspector within a stated reasonable time and in a stated reasonable way; or
(b) attend before the inspector at a
stated time and a stated place to answer questions or produce documents.
2 Offence for failing to produce information or
attend before inspector
(1) A person required to give stated information
to an inspector under clause 1(2)(a) must not fail, without reasonable excuse,
to give the information as required by the notice.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) A person given a notice to attend before an
inspector must not fail, without reasonable excuse, to—
(a) attend as required by the
notice; and
App.
(b) continue to attend as required
by the inspector until excused from further attendance; and
(c) answer a question the person is
required to answer by the inspector; and
(d) produce a document the person is
required to produce by the notice.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(3) For the purposes of subclauses (1) and (2), it
is a reasonable excuse for an individual to fail to give stated information,
answer a question or to produce a document, if giving the information,
answering the question or producing the document might tend to incriminate the
individual.
3 Inspection of documents
(1) If a document is produced to an inspector, the
inspector may—
(a) inspect the document; and
(b) make a copy of, or take an
extract from, the document; and
(c) keep the document while it is
necessary for the investigation.
(2) If the inspector keeps the document, the
inspector must permit a person otherwise entitled to possession of the
document to inspect, make a copy of, or take an extract from, the document at
the reasonable time and place decided by the inspector.
Part 2 Power to enter places
4 Entering places
An inspector may enter a place if—
(a) its occupier consents to the
entry of the place; or
(b) it is a public place and the
entry is made when it is open to the public; or
(c) the entry is authorised by a
warrant.
5 Application for warrant
App.
(1) An inspector may apply to a magistrate of a
participating jurisdiction for a warrant for a place.
(2) The inspector must prepare a written
application that states the grounds on which the warrant is sought.
(3) The written application must be sworn.
(4) The magistrate may refuse to consider the
application until the inspector gives the magistrate all the information the
magistrate requires about the application in the way the magistrate requires.
6 Issue of warrant
(1) The magistrate may issue the warrant only if
the magistrate is satisfied there are reasonable grounds for suspecting there
is a particular thing or activity that may provide evidence of an offence
against this Law at the place.
(2) The warrant must state—
(a) that a stated inspector may,
with necessary and reasonable help and force—
(i) enter the
place and any other place necessary for entry; and
(ii) exercise
the inspector's powers under this Part; and
(b) the matter for which the warrant
is sought; and
(c) the evidence that may be seized
under the warrant; and
(d) the hours of the day or night
when the place may be entered; and
(e) the date, within 14 days after
the warrant's issue, the warrant ends.
7 Application by electronic communication
App.
(1) An inspector may apply for a warrant by phone,
facsimile, email, radio, video conferencing or another form of communication
if the inspector considers it necessary because of—
(a) urgent circumstances; or
(b) other special circumstances,
including the inspector's remote location.
(2) The application—
(a) may not be made before the
inspector prepares the written application under clause 5(2); but
(b) may be made before the written
application is sworn.
(3) The magistrate may issue the warrant (the
original warrant ) only if the magistrate is satisfied—
(a) it was necessary to make the
application under subclause (1); and
(b) the way the application was made
under subclause (1) was appropriate.
(4) After the magistrate issues the original
warrant—
(a) if there is a reasonably
practicable way of immediately giving a copy of the warrant to the inspector,
for example, by sending a copy by fax or email, the magistrate must
immediately give a copy of the warrant to the inspector; or
(b) otherwise—
(i) the
magistrate must tell the inspector the date and time the warrant is issued and
the other terms of the warrant; and
(ii) the
inspector must complete a form of warrant including by writing on it—
(B) the date and time the magistrate issued the
warrant; and
(C) the other terms of the warrant.
(5) The copy of the warrant referred to in
subclause (4)(a), or the form of warrant completed under subclause (4)(b) (in
either case the duplicate warrant ), is a duplicate of, and as effectual as,
the original warrant.
App.
(6) The inspector must, at the first reasonable
opportunity, send to the magistrate—
(a) the written application
complying with clause 5(2) and (3); and
(b) if the inspector completed a
form of warrant under subclause (4)(b), the completed form of warrant.
(7) The magistrate must keep the original warrant
and, on receiving the documents under subclause (6), file the original warrant
and documents in the court.
(8) Despite subclause (5), if—
(a) an issue arises in a proceeding
about whether an exercise of a power was authorised by a warrant issued under
this clause; and
(b) the original warrant is not
produced in evidence;
the onus of proof is on the person relying on the lawfulness of the exercise
of the power to prove a warrant authorised the exercise of the power.
(9) This clause does not limit clause 5.
8 Procedure before entry under warrant
App.
(1) Before entering a place under a warrant, an
inspector must do or make a reasonable attempt to do the following—
(a) identify himself or herself to a
person present at the place who is an occupier of the place by producing the
inspector's identity card or another document evidencing the inspector's
appointment;
(b) give the person a copy of the
warrant;
(c) tell the person the inspector is
permitted by the warrant to enter the place;
(d) give the person an opportunity
to allow the inspector immediate entry to the place without using force.
(2) However, the inspector need not comply with
subclause (1) if the inspector reasonably believes that immediate entry to the
place is required to ensure the effective execution of the warrant is not
frustrated.
9 Powers after entering places
(1) This clause applies if an inspector enters a
place under clause 4.
(2) The inspector may for the purposes of the
investigation do the following—
(a) search any part of the place;
(b) inspect, measure, test,
photograph or film any part of the place or anything at the place;
(c) take a thing, or a sample of or
from a thing, at the place for analysis, measurement or testing;
(d) copy, or take an extract from, a
document, at the place;
App.
(e) take into or onto the place any
person, equipment and materials the inspector reasonably requires for
exercising a power under this Part;
(f) require the occupier of the
place, or a person at the place, to give the inspector reasonable help to
exercise the inspector's powers under paragraphs (a) to (e);
(g) require the occupier of the
place, or a person at the place, to give the inspector information to help the
inspector ascertain whether this Law is being complied with.
(3) When making a requirement referred to in
subclause (2)(f) or (g), the inspector must warn the person it is an offence
to fail to comply with the requirement unless the person has a reasonable
excuse.
10 Offences for failing to comply with requirement
under clause 9
(1) A person required to give reasonable help
under clause 9(2)(f) must comply with the requirement, unless the person has a
reasonable excuse.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) A person of whom a requirement is made under
clause 9(2)(g) must comply with the requirement, unless the person has a
reasonable excuse.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(3) It is a reasonable excuse for an individual
not to comply with a requirement under clause 9(2)(f) or (g) that complying
with the requirement might tend to incriminate the individual.
11 Seizure of evidence
(1) An inspector who enters a public place when
the place is open to the public may seize a thing at the place if the
inspector reasonably believes the thing is evidence that is relevant to the
investigation being conducted by the inspector.
(2) If an inspector enters a place with the
occupier's consent, the inspector may seize a thing at the place if—
(a) the inspector reasonably
believes the thing is evidence that is relevant to the investigation being
conducted by the inspector; and
(b) seizure of the thing is
consistent with the purpose of the entry as told to the occupier when asking
for the occupier's consent.
App.
(3) If an inspector enters a place with a warrant,
the inspector may seize the evidence for which the warrant was issued.
(4) For the purposes of subclauses (2) and (3),
the inspector may also seize anything else at the place if the inspector
reasonably believes—
(a) the thing is evidence that is
relevant to the investigation; and
(b) the seizure is necessary to
prevent the thing being hidden, lost or destroyed.
12 Securing seized things
Having seized a thing, an inspector may—
(a) move the thing from the place
where it was seized; or
(b) leave the thing at the place
where it was seized but take reasonable action to restrict access to it.
13 Receipt for seized things
(1) As soon as practicable after an inspector
seizes a thing, the inspector must give a receipt for it to the person from
whom it was seized.
(2) However, if for any reason it is not
practicable to comply with subclause (1), the inspector must leave the receipt
at the place of seizure in a conspicuous position and in a reasonably secure
way.
(3) The receipt must describe generally the seized
thing and its condition.
(4) This clause does not apply to a thing if it is
impracticable or would be unreasonable to give the receipt given the thing's
nature, condition and value.
14 Forfeiture of seized thing
(1) A seized thing is forfeited to the National
Agency if the inspector who seized the thing—
(a) cannot find its owner, after
making reasonable inquiries; or
(b) cannot return it to its owner,
after making reasonable efforts.
App.
(2) In applying subclause (1)—
(a) subclause (1)(a) does not
require the inspector to make inquiries if it would be unreasonable to make
inquiries to find the owner; and
(b) subclause (1)(b) does not
require the inspector to make efforts if it would be unreasonable to make
efforts to return the thing to its owner.
(3) Regard must be had to a thing's nature,
condition and value in deciding—
(a) whether it is reasonable to make
inquiries or efforts; and
(b) if making inquiries or efforts,
what inquiries or efforts, including the period over which they are made, are
reasonable.
15 Dealing with forfeited things
(1) On the forfeiture of a thing to the National
Agency, the thing becomes the Agency's property and may be dealt with by the
Agency as the Agency considers appropriate.
(2) Without limiting subclause (1), the National
Agency may destroy or dispose of the thing.
16 Return of seized things
(1) If a seized thing has not been forfeited, the
inspector must return it to its owner—
(a) at the end of 6 months; or
(b) if proceedings involving the
thing are started within 6 months, at the end of the proceedings and any
appeal from the proceedings.
(2) Despite subclause (1), unless the thing has
been forfeited, the inspector must immediately return a thing seized as
evidence to its owner if the inspector is no longer satisfied its continued
retention as evidence is necessary.
17 Access to seized things
(1) Until a seized thing is forfeited or returned,
an inspector must allow its owner to inspect it and, if it is a document, to
copy it.
(2) Subclause (1) does not apply if it is
impracticable or would be unreasonable to allow the inspection or copying.
Part 3 General matters
18 Damage to property
App.
(1) This clause applies if—
(a) an inspector damages property
when exercising or purporting to exercise a power; or
(b) a person (the other person )
acting under the direction of an inspector damages property.
(2) The inspector must promptly give written
notice of particulars of the damage to the person who appears to the inspector
to be the owner of the property.
(3) If the inspector believes the damage was
caused by a latent defect in the property or circumstances beyond the
inspector's or other person's control, the inspector must state the belief in
the notice.
(4) If, for any reason, it is impracticable to
comply with subclause (2), the inspector must leave the notice in a
conspicuous position and in a reasonably secure way where the damage happened.
(5) This clause does not apply to damage the
inspector reasonably believes is trivial.
(6) In this clause—
"owner", of property, includes the person in possession or control of it.
19 Compensation
(1) A person may claim compensation from the
National Agency if the person incurs loss or expense because of the exercise
or purported exercise of a power under this Schedule by the inspector.
(2) Without limiting subclause (1), compensation
may be claimed for loss or expense incurred in complying with a requirement
made of the person under this Schedule.
(3) Compensation may be claimed and ordered to be
paid in a proceeding brought in a court with jurisdiction for the recovery of
the amount of compensation claimed.
(4) A court may order compensation to be paid only
if it is satisfied it is fair to make the order in the circumstances of the
particular case.
20 False or misleading information
App.
A person must not state anything to an inspector that the person knows is
false or misleading in a material particular.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
21 False or misleading documents
(1) A person must not give an inspector a document
containing information the person knows is false or misleading in a material
particular.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) Subclause (1) does not apply to a person who,
when giving the document—
(a) informs the inspector, to the
best of the person's ability, how it is false or misleading; and
(b) gives the correct information to
the inspector if the person has, or can reasonably obtain, the correct
information.
22 Obstructing inspectors
(1) A person must not obstruct an inspector in the
exercise of a power, unless the person has a reasonable excuse.
Maximum penalty—
(a) in the case of an
individual—$5,000; or
(b) in the case of a body
corporate—$10,000.
(2) If a person has obstructed an inspector and
the inspector decides to proceed with the exercise of the power, the inspector
must warn the person that—
(a) it is an offence to obstruct the
inspector, unless the person has a reasonable excuse; and
(b) the inspector considers the
person's conduct is an obstruction.
(3) In this clause—
"obstruct" includes hinder and attempt to obstruct or hinder.
23 Impersonation of inspectors
App.
A person must not pretend to be an inspector.
Maximum penalty—$5,000.
Schedule 7 Miscellaneous provisions relating to interpretation
The application of this Schedule may be displaced, wholly or partly, by a
contrary intention appearing in this Law.
Part 2 General
2 Law to be construed not to exceed legislative
power of Legislature
(1) This Law is to be construed as operating to
the full extent of, but so as not to exceed, the legislative power of the
Legislature of thisjurisdiction.
(2) If a provision of this Law, or the application
of a provision of this Law to a person, subject matter or circumstance, would,
but for this clause, be construed as being in excess of the legislative power
of the Legislature of thisjurisdiction—
(a) it is a valid provision to the
extent to which it is not in excess of the power; and
App.
(b) the remainder of this Law, and
the application of the provision to other persons, subject matters or
circumstances, is not affected.
(3) This clause applies to this Law in addition
to, and without limiting the effect of, any provision of this Law.
3 Every section to be a substantive enactment
Every section of this Law has effect as a substantive enactment without
introductory words.
4 Material that is, and is not, part of this Law
(1) The heading to a Part, Division or Subdivision
into which this Law is divided is part of this Law.
(2) A Schedule to this Law is part of this Law.
(3) Punctuation in this Law is part of this Law.
(4) A heading to a section or subsection of this
Law does not form part of this Law.
(5) Notes included in this Law (including
footnotes and endnotes) do not form part of this Law.
(ii) by
reference to the year in which it was passed and its number; and
(b) a Commonwealth Act may be
cited—
(i) by its
short title; or
(ii) in another
way sufficient in a Commonwealth Act for the citation of such an Act;
together with a reference to the Commonwealth; and
(c) an Act of another jurisdiction
may be cited—
(i) by its
short title; or
(ii) in another
way sufficient in an Act of the jurisdiction for the citation of such an Act;
together with a reference to the jurisdiction.
6 References taken to be included in Act or Law
citation etc
App.
(1) A reference in this Law to an Act includes a
reference to—
(a) the Act as originally enacted,
and as amended from time to time since its original enactment; and
(b) if the Act has been repealed and
re-enacted (with or without modification) since the enactment of the
reference—the Act as re-enacted, and as amended from time to time since
its re-enactment.
(2) A reference in this Law to a provision of this
Law or of an Act includes a reference to—
(a) the provision as originally
enacted, and as amended from time to time since its original enactment; and
(b) if the provision has been
omitted and re-enacted (with or without modification) since the enactment of
the reference—the provision as re-enacted, and as amended from time to
time since its re-enactment.
(3) Subclauses (1) and (2) apply to a reference in
this Law to a law of the Commonwealth or another jurisdiction as they apply to
a reference in this Law to an Act and to a provision of an Act.
7 Interpretation best achieving Law's purpose
(1) In the interpretation of a provision of this
Law, the interpretation that will best achieve the purpose or object of this
Law is to be preferred to any other interpretation.
(2) Subclause (1) applies whether or not the
purpose is expressly stated in this Law.
8 Use of extrinsic material in interpretation
(1) In this clause—
"extrinsic material" means relevant material not forming part of this Law,
including, for example—
(a) material that is set out in the
document containing the text of this Law as printed by the Government Printer;
and
(b) a relevant report of a Royal
Commission, Law Reform Commission, commission or committee of inquiry, or a
similar body, that was laid before the Parliament of this jurisdiction before
the provision concerned was enacted; and
(c) a relevant report of a committee
of the Parliament of thisjurisdiction that was made to the Parliament before
the provision was enacted; and
App.
(d) a treaty or other international
agreement that is mentioned in this Law; and
(e) an explanatory note or
memorandum relating to the Bill that contained the provision, or any relevant
document, that was laid before, or given to the members of, the Parliament of
this jurisdiction by the member bringing in the Bill before the provision was
enacted; and
(f) the speech made to the
Parliament of this jurisdiction by the member in moving a motion that the Bill
be read a second time; and
(g) material in the Votes and
Proceedings of the Parliament of thisjurisdiction or in any official record
of debates in the Parliament of thisjurisdiction; and
(h) a document that is declared by
this Law to be a relevant document for the purposes of this clause.
"ordinary meaning" means the ordinary meaning conveyed by a provision having
regard to its context in this Law and to the purpose of this Law.
(2) Subject to subclause (3), in the
interpretation of a provision of this Law, consideration may be given to
extrinsic material capable of assisting in the interpretation—
(a) if the provision is ambiguous or
obscure—to provide an interpretation of it; or
(b) if the ordinary meaning of the
provision leads to a result that is manifestly absurd or is
unreasonable—to provide an interpretation that avoids such a result; or
(c) in any other case—to
confirm the interpretation conveyed by the ordinary meaning of the provision.
(3) In determining whether consideration should be
given to extrinsic material, and in determining the weight to be given to
extrinsic material, regard is to be had to—
(a) the desirability of a provision
being interpreted as having its ordinary meaning; and
(b) the undesirability of prolonging
proceedings without compensating advantage; and
(c) other relevant matters.
9 Effect of change of drafting practice and use of
examples
App.
If—
(a) a provision of this Law
expresses an idea in particular words; and
(b) a provision enacted later
appears to express the same idea in different words for the purpose of
implementing a different legislative drafting practice, including, for
example—
(i) the use of
a clearer or simpler style; or
(ii) the use of
gender-neutral language;
the ideas must not be taken to be different merely because different words are
used.
10 Use of examples
If this Law includes an example of the operation of a provision—
(a) the example is not exhaustive;
and
(b) the example does not limit, but
may extend, the meaning of the provision; and
(c) the example and the provision
are to be read in the context of each other and the other provisions of this
Law, but, if the example and the provision so read are inconsistent, the
provision prevails.
11 Compliance with forms
(1) If a form is prescribed or approved by or for
the purpose of this Law, strict compliance with the form is not necessary and
substantial compliance is sufficient.
(2) If a form prescribed or approved by or for the
purpose of this Law requires—
(a) the form to be completed in a
specified way; or
(b) specified information or
documents to be included in, attached to or given with the form; or
(c) the form, or information or
documents included in, attached to or given with the form, to be verified in a
specified way,
the form is not properly completed unless the requirement is complied with.
"affidavit", in relation to a person allowed by law to affirm, declare or
promise, includes affirmation, declaration and promise.
"amend" includes—
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication.
"appoint" includes reappoint.
"Australia" means the Commonwealth of Australia but, when used in a
geographical sense, does not include an external Territory.
"business day" means a day that is not—
(a) a Saturday or Sunday; or
(b) a public holiday, special
holiday or bank holiday in the place in which any relevant act is to be or may
be done.
"calendar month" means a period starting at the beginning of any day of one of
the 12 named months and ending—
(a) immediately before the beginning
of the corresponding day of the next named month; or
(b) if there is no such
corresponding day—at the end of the next named month.
"calendar year" means a period of 12 months beginning on 1 January.
"commencement", in relation to this Law or an Act or a provision of this Law
or an Act, means the time at which this Law, the Act or provision comes into
operation.
"Commonwealth" means the Commonwealth of Australia but, when used in a
geographical sense, does not include an external Territory.
"confer", in relation to a function, includes impose.
"contravene" includes fail to comply with.
App.
"country "includes—
(a) a federation; or
(b) a state, province or other part
of a federation.
"date of assent", in relation to an Act, means the day on which the Act
receives the Royal Assent.
"definition" means a provision of this Law (however expressed) that—
(a) gives a meaning to a word or
expression; or
(b) limits or extends the meaning of
a word or expression.
"document" includes—
(a) any paper or other material on
which there is writing; or
(b) any paper or other material on
which there are marks, figures, symbols or perforations having a meaning for a
person qualified to interpret them; or
(c) any disc, tape or other article
or any material from which sounds, images, writings or messages are capable of
being reproduced (with or without the aid of another article or device).
"electronic communication" means—
(a) a communication of information
in the form of data, text or images by means of guided or unguided
electromagnetic energy, or both; or
(b) a communication of information
in the form of sound by means of guided or unguided electromagnetic energy, or
both, where the sound is processed at its destination by an automated voice
recognition system.
"estate" includes easement, charge, right, title, claim, demand, lien or
encumbrance, whether at law or in equity.
"expire" includes lapse or otherwise cease to have effect.
"external Territory" means a Territory, other than an internal Territory, for
the government of which as a Territory provision is made by a Commonwealth
Act.
"fail "includes refuse.
App.
"financial year" means a period of 12 months beginning on 1 July.
"foreign country" means a country (whether or not an independent sovereign
State) outside Australia and the external Territories.
"Gazette notice" means notice published in the Gazette.
"Government Printer" means the Government Printer of thisjurisdiction, and
includes any other person authorised by the Government of thisjurisdiction to
print an Act or instrument.
"individual" means a natural person.
"information system" means a system for generating, sending, receiving,
storing or otherwise processing electronic communications.
"insert", in relation to a provision of this Law, includes substitute.
"instrument" includes a statutory instrument.
"interest", in relation to land or other property, means—
(a) a legal or equitable estate in
the land or other property; or
(b) a right, power or privilege
over, or in relation to, the land or other property.
"internal Territory" means the Australian Capital Territory, the Jervis Bay
Territory or the Northern Territory.
"modification" includes addition, omission or substitution.
"month" means a calendar month.
"named month" means 1 of the 12 months of the year.
"Northern Territory" means the Northern Territory of Australia.
"number" means—
(a) a number expressed in figures or
words; or
App.
(b) a letter; or
(c) a combination of a number so
expressed and a letter.
"oath", in relation to a person allowed by law to affirm, declare or promise,
includes affirmation, declaration or promise.
"office" includes position.
"omit", in relation to a provision of this Law or an Act, includes repeal.
"party" includes an individual or a body politic or corporate.
"penalty" includes forfeiture or punishment.
"person" includes an individual or a body politic or corporate.
"power" includes authority.
"prescribed" means prescribed by, or by regulations made or in force for the
purposes of or under, this Law.
"printed" includes typewritten, lithographed or reproduced by any mechanical
means.
"proceeding" means a legal or other action or proceeding.
"property" means any legal or equitable estate or interest (whether present or
future, vested or contingent, or tangible or intangible) in real or personal
property of any description (including money), and includes things in action.
"provision", in relation to this Law or an Act, means words or other matter
that form or forms part of this Law or the Act, and includes—
(a) a Chapter, Part, Division,
Subdivision, section, subsection, paragraph, subparagraph, sub-subparagraph or
Schedule of or to this Law or the Act; or
(b) a section, clause, subclause,
item, column, table or form of or in a Schedule to this Law or the Act; or
(c) the long title and any preamble
to the Act.
"record" includes information stored or recorded by means of a computer.
"repeal" includes—
(a) revoke or rescind; or
(b) repeal by implication; or
App.
(c) abrogate or limit the effect of
this Law or instrument concerned; or
(d) exclude from, or include in, the
application of this Law or instrument concerned any person, subject matter or
circumstance.
"sign" includes the affixing of a seal or the making of a mark.
"statutory declaration" means a declaration made under an Act, or under a
Commonwealth Act or an Act of another jurisdiction, that authorises a
declaration to be made otherwise than in the course of a judicial proceeding.
"statutory instrument" means an instrument (including a regulation) made or in
force under or for the purposes of this Law, and includes an instrument made
or in force under any such instrument.
"swear", in relation to a person allowed by law to affirm, declare or promise,
includes affirm, declare or promise.
"word" includes any symbol, figure or drawing.
"writing" includes any mode of representing or reproducing words in a visible
form.
(2) In a statutory instrument—
"the Law" means this Law.
13 Provisions relating to defined terms and gender
and number
(1) If this Law defines a word or expression,
other parts of speech and grammatical forms of the word or expression have
corresponding meanings.
(2) Definitions in or applicable to this Law apply
except so far as the context or subject matter otherwise indicates or
requires.
(3) In this Law, words indicating a gender include
each other gender.
(4) In this Law—
(a) words in the singular include
the plural; and
(b) words in the plural include the
singular.
14 Meaning of “may” and
“must” etc
App.
(1) In this Law, the word "may", or a similar word
or expression, used in relation to a power indicates that the power may be
exercised or not exercised, at discretion.
(2) In this Law, the word "must", or a similar
word or expression, used in relation to a power indicates that the power is
required to be exercised.
(3) This clause has effect despite any rule of
construction to the contrary.
15 Words and expressions used in statutory
instruments
(1) Words and expressions used in a statutory
instrument have the same meanings as they have, from time to time, in this
Law, or relevant provisions of this Law, under or for the purposes of which
the instrument is made or in force.
(2) This clause has effect in relation to an
instrument except so far as the contrary intention appears in the instrument.
16 Effect of express references to bodies
corporate and individuals
In this Law, a reference to a person generally (whether the expression
“person”, “party”, “someone”,
“anyone”, “no-one”, “one”,
“another” or “whoever” or another expression is
used)—
(a) does not exclude a reference to
a body corporate or an individual merely because elsewhere in this Law there
is particular reference to a body corporate (however expressed); and
(b) does not exclude a reference to
a body corporate or an individual merely because elsewhere in this Law there
is particular reference to an individual (however expressed).
17 Production of records kept in computers etc
If a person who keeps a record of information by means of a mechanical,
electronic or other device is required by or under this Law—
(a) to produce the information or a
document containing the information to a court, tribunal or person; or
(b) to make a document containing
the information available for inspection by a court, tribunal or person;
then, unless the court, tribunal or person otherwise directs—
(c) the requirement obliges the
person to produce or make available for inspection, as the case may be, a
document that reproduces the information in a form capable of being understood
by the court, tribunal or person; and
App.
(d) the production to the court,
tribunal or person of the document in that form complies with the requirement.
(a) a reference to an officer,
office or statutory body is a reference to such an officer, office or
statutory body in and for this jurisdiction; and
(b) a reference to a locality or
other matter or thing is a reference to such a locality or other matter or
thing in and of this jurisdiction.
19 References to officers and holders of offices
In this Law, a reference to a particular officer, or to the holder of a
particular office, includes a reference to the person for the time being
occupying or acting in the office concerned.
20 Reference to certain provisions of Law
If a provision of this Law refers—
(a) to a Part, section or Schedule
by a number and without reference to this Law—the reference is a
reference to the Part, section or Schedule, designated by the number, of or to
this Law; or
(b) to a Schedule without reference
to it by a number and without reference to this Law—the reference, if
there is only one Schedule to this Law, is a reference to the Schedule; or
(c) to a Division, Subdivision,
subsection, paragraph, subparagraph, sub-subparagraph, clause, subclause,
item, column, table or form by a number and without reference to this
Law—the reference is a reference to—
(i) the
Division, designated by the number, of the Part in which the reference occurs;
and
(ii) the
Subdivision, designated by the number, of the Division in which the reference
occurs; and
(iii) the
subsection, designated by the number, of the section in which the reference
occurs; and
(iv) the
paragraph, designated by the number, of the section, subsection, Schedule or
other provision in which the reference occurs; and
App.
(v) the
paragraph, designated by the number, of the clause, subclause, item, column,
table or form of or in the Schedule in which the reference occurs; and
(vi) the
subparagraph, designated by the number, of the paragraph in which the
reference occurs; and
(vii) the
sub-subparagraph, designated by the number, of the subparagraph in which the
reference occurs; and
(viii) the
section, clause, subclause, item, column, table or form, designated by the
number, of or in the Schedule in which the reference occurs;
as the case requires.
21 Reference to provisions of this Law or an Act
is inclusive
In this Law, a reference to a portion of this Law or an Act includes—
(a) a reference to the Chapter,
Part, Division, Subdivision, section, subsection or other provision of this
Law or the Act referred to that forms the beginning of the portion; and
(b) a reference to the Chapter,
Part, Division, Subdivision, section, subsection or other provision of this
Law or the Act referred to that forms the end of the portion.
It is not necessary to refer to “ sections 5 to 9 (both
inclusive)” to ensure that the reference is given an inclusive
interpretation.
Part 4 Functions and powers
22 Performance of statutory functions
(1) If this Law confers a function or power on a
person or body, the function may be performed, or the power may be exercised,
from time to time as occasion requires.
App.
(2) If this Law confers a function or power on a
particular officer or the holder of a particular office, the function may be
performed, or the power may be exercised, by the person for the time being
occupying or acting in the office concerned.
(3) If this Law confers a function or power on a
body (whether or not incorporated), the performance of the function, or the
exercise of the power, is not affected merely because of vacancies in the
membership of the body.
23 Power to make instrument or decision includes
power to amend or repeal
If this Law authorises or requires the making of an instrument or
decision—
(a) the power includes power to
amend or repeal the instrument or decision; and
(b) the power to amend or repeal the
instrument or decision is exercisable in the same way, and subject to the same
conditions, as the power to make the instrument or decision.
24 Matters for which statutory instruments may
make provision
(1) If this Law authorises or requires the making
of a statutory instrument in relation to a matter, a statutory instrument made
under this Law may make provision for the matter by applying, adopting or
incorporating (with or without modification) the provisions of—
(a) an Act or statutory instrument;
or
(b) another document (whether of the
same or a different kind);
as in force at a particular time or as in force from time to time.
(2) If a statutory instrument applies, adopts or
incorporates the provisions of a document, the statutory instrument applies,
adopts or incorporates the provisions as in force from time to time, unless
the statutory instrument otherwise expressly provides.
(b) apply generally to all persons,
matters or things or be limited in its application to—
(i) particular
persons, matters or things; or
(ii) particular
classes of persons, matters or things; or
(c) otherwise apply generally or be
limited in its application by reference to specified exceptions or factors.
(4) A statutory instrument may—
(a) apply differently according to
different specified factors; or
(b) otherwise make different
provision in relation to—
(i) different
persons, matters or things; or
(ii) different
classes of persons, matters or things.
(5) A statutory instrument may authorise a matter
or thing to be from time to time determined, applied or regulated by a
specified person or body.
(6) If this Law authorises or requires a matter to
be regulated by statutory instrument, the power may be exercised by
prohibiting by statutory instrument the matter or any aspect of the matter.
(7) If this Law authorises or requires provision
to be made with respect to a matter by statutory instrument, a statutory
instrument made under this Law may make provision with respect to a particular
aspect of the matter despite the fact that provision is made by this Law in
relation to another aspect of the matter or in relation to another matter.
(8) A statutory instrument may provide for the
review of, or a right of appeal against, a decision made under the statutory
instrument, or this Law, and may, for that purpose, confer jurisdiction on any
court, tribunal, person or body.
(9) A statutory instrument may require a form
prescribed by or under the statutory instrument, or information or documents
included in, attached to or given with the form, to be verified by statutory
declaration.
25 Presumption of validity and power to make
App.
(1) All conditions and preliminary steps required
for the making of a statutory instrument are presumed to have been satisfied
and performed in the absence of evidence to the contrary.
(2) A statutory instrument is taken to be made
under all powers under which it may be made, even though it purports to be
made under this Law or a particular provision of this Law.
26 Appointments may be made by name or office
(1) If this Law authorises or requires a person or
body—
(a) to appoint a person to an
office; or
(b) to appoint a person or body to
exercise a power; or
(c) to appoint a person or body to
do another thing;
the person or body may make the appointment by—
(d) appointing a person or body by
name; or
(e) appointing a particular officer,
or the holder of a particular office, by reference to the title of the office
concerned.
(2) An appointment of a particular officer, or the
holder of a particular office, is taken to be the appointment of the person
for the time being occupying or acting in the office concerned.
27 Acting appointments
(1) If this Law authorises a person or body to
appoint a person to act in an office, the person or body may, in accordance
with this Law, appoint—
(a) a person by name; or
(b) a particular officer, or the
holder of a particular office, by reference to the title of the office
concerned;
to act in the office.
(2) The appointment may be expressed to have
effect only in the circumstances specified in the instrument of appointment.
(3) The appointer may—
(a) determine the terms and
conditions of the appointment, including remuneration and allowances; and
App.
(b) terminate the appointment at any
time.
(4) The appointment, or the termination of the
appointment, must be in, or evidenced by, writing signed by the appointer.
(5) The appointee must not act for more than 1
year during a vacancy in the office.
(6) If the appointee is acting in the office
otherwise than because of a vacancy in the office and the office becomes
vacant, then, subject to subclause (2), the appointee may continue to act
until—
(a) the appointer otherwise directs;
or
(b) the vacancy is filled; or
(c) the end of a year from the day
of the vacancy;
whichever happens first.
(7) The appointment ceases to have effect if the
appointee resigns by writing signed and delivered to the appointer.
(8) While the appointee is acting in the
office—
(a) the appointee has all the powers
and functions of the holder of the office; and
(b) this Law and other laws apply to
the appointee as if the appointee were the holder of the office.
(9) Anything done by or in relation to a person
purporting to act in the office is not invalid merely because—
(a) the occasion for the appointment
had not arisen; or
(b) the appointment had ceased to
have effect; or
(c) the occasion for the person to
act had not arisen or had ceased.
(10) If this Law authorises the appointer to
appoint a person to act during a vacancy in the office, an appointment to act
in the office may be made by the appointer whether or not an appointment has
previously been made to the office.
28 Powers of appointment imply certain incidental
powers
(1) If this Law authorises or requires a person or
body to appoint a person to an office—
App.
(a) the power may be exercised from
time to time as occasion requires; and
(b) the power includes—
(i) power to
remove or suspend, at any time, a person appointed to the office; and
(ii) power to
appoint another person to act in the office if a person appointed to the
office is removed or suspended; and
(iii) power to
reinstate or reappoint a person removed or suspended; and
(iv) power to
appoint a person to act in the office if it is vacant (whether or not the
office has ever been filled); and
(v) power to
appoint a person to act in the office if the person appointed to the office is
absent or is unable to discharge the functions of the office (whether because
of illness or otherwise).
(2) The power to remove or suspend a person under
subclause (1)(b) may be exercised even if this Law provides that the holder of
the office to which the person was appointed is to hold office for a specified
period.
(3) The power to make an appointment under
subclause (1)(b) may be exercised from time to time as occasion requires.
(4) An appointment under subclause (1)(b) may be
expressed to have effect only in the circumstances specified in the instrument
of appointment.
29 Delegation of functions
(1) If this Law authorises a person or body to
delegate a function, the person or body may, in accordance with this Law and
any other applicable law, delegate the function to—
(a) a person or body by name; or
(b) a specified officer, or the
holder of a specified office, by reference to the title of the office
concerned.
(2) The delegation may be—
(a) general or limited; and
(b) made from time to time; and
(c) revoked, wholly or partly, by
the delegator.
(3) The delegation, or a revocation of the
delegation, must be in, or evidenced by, writing signed by the delegator or,
if the delegator is a body, by a person authorised by the body for the
purpose.
(4) A delegated function may be exercised only in
accordance with any conditions to which the delegation is subject.
App.
(5) The delegate may, in the performance of a
delegated function, do anything that is incidental to the delegated function.
(6) A delegated function that purports to have
been exercised by the delegate is taken to have been properly exercised by the
delegate unless the contrary is proved.
(7) A delegated function that is properly
exercised by the delegate is taken to have been exercised by the delegator.
(8) If, when exercised by the delegator, a
function is dependent on the delegator's opinion, belief or state of mind,
then, when exercised by the delegate, the function is dependent on the
delegate's opinion, belief or state of mind.
(9) If—
(a) the delegator is a specified
officer or the holder of a specified office; and
(b) the person who was the specified
officer or holder of the specified office when the delegation was made ceases
to be the holder of the office;
then—
(c) the delegation continues in
force; and
(d) the person for the time being
occupying or acting in the office concerned is taken to be the delegator for
the purposes of this section.
(10) If—
(a) the delegator is a body; and
(b) there is a change in the
membership of the body;
then—
(c) the delegation continues in
force; and
App.
(d) the body as constituted for the
time being is taken to be the delegator for the purposes of this section.
(11) If a function is delegated to a specified
officer or the holder of a specified office—
(a) the delegation does not cease to
have effect merely because the person who was the specified officer or the
holder of the specified office when the function was delegated ceases to be
the officer or the holder of the office; and
(b) the function may be exercised by
the person for the time being occupying or acting in the office concerned.
(12) A function that has been delegated may,
despite the delegation, be exercised by the delegator.
(13) The delegation of a function does not relieve
the delegator of the delegator's obligation to ensure that the function is
properly exercised.
(14) Subject to subsection (15), this clause
applies to a subdelegation of a function in the same way as it applies to a
delegation of a function.
(15) If this Law authorises the delegation of a
function, the function may be subdelegated only if the Law expressly
authorises the function to be subdelegated.
30 Exercise of powers between enactment and
commencement
(1) If a provision of this Law (the empowering
provision ) that does not commence on its enactment would, had it commenced,
confer a power—
(a) to make an appointment; or
(b) to make a statutory instrument
of a legislative or administrative character; or
(c) to do another thing;
then—
(d) the power may be exercised; and
(e) anything may be done for the
purpose of enabling the exercise of the power or of bringing the appointment,
instrument or other thing into effect;
before the empowering provision commences.
App.
(2) If a provision of a Queensland Act (the
empowering provision ) that does not commence on its enactment would, had it
commenced, amend a provision of this Law so that it would confer a
power—
(a) to make an appointment; or
(b) to make a statutory instrument
of a legislative or administrative character; or
(c) to do another thing;
then—
(d) the power may be exercised; and
(e) anything may be done for the
purpose of enabling the exercise of the power or of bringing the appointment,
instrument or other thing into effect;
before the empowering provision commences.
(3) If—
(a) this Law has commenced and
confers a power to make a statutory instrument (the basic instrument-making
power ); and
(b) a provision of a
Queensland Act that does not commence on its enactment would, had it
commenced, amend this Law so as to confer additional power to make a statutory
instrument (the additional instrument-making power );
then—
(c) the basic instrument-making
power and the additional instrument-making power may be exercised by making a
single instrument; and
(d) any provision of the instrument
that required an exercise of the additional instrument-making power is to be
treated as made under subclause (2).
(4) If an instrument, or a provision of an
instrument, is made under subclause (1) or (2) that is necessary for the
purpose of—
(a) enabling the exercise of a power
mentioned in the subclause; or
(b) bringing an appointment,
instrument or other thing made or done under such a power into effect;
the instrument or provision takes effect—
(c) on the making of the instrument;
or
(d) on such later day (if any) on
which, or at such later time (if any) at which, the instrument or provision is
expressed to take effect.
App.
(5) If—
(a) an appointment is made under
subclause (1) or (2); or
(b) an instrument, or a provision of
an instrument, made under subclause (1) or (2) is not necessary for a purpose
mentioned in subclause (4);
the appointment, instrument or provision takes effect—
(c) on the commencement of the
relevant empowering provision; or
(d) on such later day (if any) on
which, or at such later time (if any) at which, the appointment, instrument or
provision is expressed to take effect.
(6) Anything done under subclause (1) or (2) does
not confer a right, or impose a liability, on a person before the relevant
empowering provision commences.
(7) After the enactment of a provision mentioned
in subclause (2) but before the provision's commencement, this clause applies
as if the references in subclauses (2) and (5) to the commencement of the
empowering provision were references to the commencement of the provision
mentioned in subclause (2) as amended by the empowering provision.
(8) In the application of this clause to a
statutory instrument, a reference to the enactment of the instrument is a
reference to the making of the instrument.
Part 5 Distance, time and age
31 Matters relating to distance, time and age
(1) In the measurement of distance for the
purposes of this Law, the distance is to be measured along the shortest road
ordinarily used for travelling.
(2) If a period beginning on a given day, act or
event is provided or allowed for a purpose by this Law, the period is to be
calculated by excluding the day, or the day of the act or event, and—
(a) if the period is expressed to be
a specified number of clear days or at least a specified number of
days—by excluding the day on which the purpose is to be fulfilled; and
App.
(b) in any other case—by
including the day on which the purpose is to be fulfilled.
(3) If the last day of a period provided or
allowed by this Law for doing anything is not a business day in the place in
which the thing is to be or may be done, the thing may be done on the next
business day in the place.
(4) If the last day of a period provided or
allowed by this Law for the filing or registration of a document is a day on
which the office is closed where the filing or registration is to be or may be
done, the document may be filed or registered at the office on the next day
that the office is open.
(5) If no time is provided or allowed for doing
anything, the thing is to be done as soon as possible, and as often as the
prescribed occasion happens.
(6) If, in this Law, there is a reference to time,
the reference is, in relation to the doing of anything in a jurisdiction, a
reference to the legal time in the jurisdiction.
(7) For the purposes of this Law, a person attains
an age in years at the beginning of the person's birthday for the age.
Part 6 Effect of repeal, amendment or expiration
32 Time of Law ceasing to have effect
If a provision of this Law is expressed—
(a) to expire on a specified day; or
(b) to remain or continue in force,
or otherwise have effect, until a specified day;
this provision has effect until the last moment of the specified day.
33 Repealed Law provisions not revived
App.
If a provision of this Law is repealed or amended by a Queensland Act, or a
provision of a Queensland Act, the provision is not revived merely because the
Queensland Act or the provision of the Queensland Act—
(a) is later repealed or amended; or
(b) later expires.
34 Saving of operation of repealed Law provisions
(1) The repeal, amendment or expiry of a provision
of this Law does not—
(a) revive anything not in force or
existing at the time the repeal, amendment or expiry takes effect; or
(b) affect the previous operation of
the provision or anything suffered, done or begun under the provision; or
(c) affect a right, privilege or
liability acquired, accrued or incurred under the provision; or
(d) affect a penalty incurred in
relation to an offence arising under the provision; or
(e) affect an investigation,
proceeding or remedy in relation to such a right, privilege, liability or
penalty.
(2) Any such penalty may be imposed and enforced,
and any such investigation, proceeding or remedy may be begun, continued or
enforced, as if the provision had not been repealed or amended or had not
expired.
35 Continuance of repealed provisions
If a Queensland Act repeals some provisions of this Law and enacts new
provisions in substitution for the repealed provisions, the repealed
provisions continue in force until the new provisions commence.
36 Law and amending Acts to be read as one
This Law and all Queensland Acts amending this Law are to be read as one.
Part 7 Instruments under Law
37 Schedule applies to statutory instruments
App.
(1) This Schedule applies to a statutory
instrument, and to things that may be done or are required to be done under a
statutory instrument, in the same way as it applies to this Law, and things
that may be done or are required to be done under this Law, except so far as
the context or subject matter otherwise indicates or requires.
(2) The fact that a provision of this Schedule
refers to this Law and not also to a statutory instrument does not, by itself,
indicate that the provision is intended to apply only to this Law.