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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-05-26 Daily Xml
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HEALTH PRACTITIONER REGULATION NATIONAL LAW (SOUTH AUSTRALIA) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for the City of Adelaide) (22:09): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

South Australia has had some form of regulation of health practitioners for nearly one hundred years. The earliest Acts, the Medical Practitioners Act 1919, the Nurses Registration Act 1920 and the Opticians Act 1920 required registration of those persons wishing to practice in these professions with a registration board. The number of health professions regulated was added to over the next fifty years and all of the Acts were reviewed in the early 2000's. This was principally for the purposes of the National Competition Policy Review, but also to reflect changed practices that have occurred in the professions over time, and to ensure that the health and safety of the public is paramount in the regulation of the health professions.

The registration Acts have enabled the public of South Australia to have confidence that the health practitioners under these Acts are appropriately qualified and accredited, and are required to maintain high standards of competence and conduct in the provision of services.

The Acts covering the regulation of health professions have served the people of South Australia well. However, with the advent of mutual recognition there has been the potential for the public in South Australia to be exposed to practitioners who may not meet the registration requirements established by local registration boards. Under mutual recognition, any practitioner registered in one jurisdiction is deemed to be eligible for registration in another jurisdiction. Mutual recognition has seen some professions work towards developing national standards for registration, but this does not apply to all registered professions. The prospect of incompetent health practitioners registered and practising in other States and Territories, such as Doctors Patel and Reeves, being eligible to practise in South Australia, is not something that this Government wishes to see happen. This is why we believe it is important for South Australia to participate in the National Registration and Accreditation Scheme for the Health Professions. The scheme will ensure that health practitioners will be subject to nationally consistent registration standards and codes for their professions.

The Health Practitioner Regulation National Law (South Australia) before the House forms part of a national reform process in the registration and accreditation of health practitioners agreed to by the Council of Australian Governments, or COAG, in March 2008.

The origins of the National Registration and Accreditation Scheme date back to 2005 when the then Howard Government commissioned the Productivity Commission to undertake a report examining the issues impacting on the health workforce including the supply of, and demand for, health workforce professionals, and to propose solutions to ensure the continued delivery of quality health care over the next 10 years.

The Productivity Commission found that there were 90 or so boards in place around the country responsible for the registration of health practitioners through an assessment of their qualifications, experience and ‘character' to practise in their chosen field. The boards were also responsible for ensuring that these practitioners complied with the requirements to practise and their continuing professional development.

This jurisdictional-based system has led to variations in registration and accreditation standards across the country and also resulted in an additional administrative and cost burden on health practitioners that impedes their movement across jurisdictions. If a practitioner currently wishes to work in two or more jurisdictions they need to register in each jurisdiction and pay the relevant registration fee in each jurisdiction.

Under the Howard Government, COAG considered the recommendations from the Productivity Commission to establish a single national registration board for health practitioners, and separate to this, a single national accreditation board for health practitioner education and training. However, when this proposal was presented to stakeholders it was seen as too cumbersome, and under the Rudd Government, COAG agreed to a single national registration and accreditation scheme.

Commonwealth, State and Territory Health Ministers were tasked with the development and implementation of this national scheme, culminating in the passage of the Health Practitioner Regulation National Law Act 2009 in the Queensland Parliament on 29 October 2009. I will elaborate on this National Law later. I must stress that the National Law is agreed legislation between all Health Ministers. It is not Commonwealth law.

This National Law will commence on 1 July 2010 and cover ten health professions including: medicine, nursing and midwifery, pharmacy, physiotherapy, dentistry (consisting of dentists, dental prosthetists, dental therapists and dental hygienists), psychology, optometry, osteopathy, chiropractic and podiatry. In addition, the inclusion of a further four professions will commence on 1 July 2012: medical radiation practitioners, occupational therapists, Chinese medicine practitioners, and Aboriginal and Torres Strait Islander clinical health practitioners. Further consideration will be given to the inclusion of other health professions in the National Scheme over time.

The primary objectives of the National 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 jurisdictions or to practise in more than one jurisdiction.

The National Scheme will be administered by the Australian Health Practitioner Regulation Agency, which is establishing offices in each State and Territory. A National Board has been established for each profession. Each Board will be responsible for the registration of the health practitioners, developing standards and codes for the profession, approving accredited programs of study, and the receipt and investigation of complaints against practitioners. Each Board may establish a jurisdictional committee to provide an effective and timely local response to health practitioners and other persons. I am pleased to advise that under the national legislation South Australia has at least one representative on each of the ten national boards established.

As with the current registration boards in South Australia, the National Scheme will be self-funded from registration fees from health practitioners. The Commonwealth, State and Territory Governments have contributed funding towards the establishment of the scheme through the Australian Health Ministers' Advisory Council, but in the longer term the scheme will be self-funding. Fees for the professions will be set by the National Boards in line with the overarching principle that the fees are to be reasonable having regard to the efficient and effective operation of the scheme.

For registrants wishing to practise in more than one jurisdiction, they will only need to be registered in one jurisdiction, and will only be required to pay one registration fee. This is in contrast to the current situation where practitioners are required to pay a registration fee in each jurisdiction in which they wish to practise.

I will table a copy of the Health Practitioner Regulation National Law Act 2009 of Queensland for the information of honourable members. This Act is the outcome of a long and complex process to negotiate nationally consistent standards and processes across nine jurisdictions and ten professions, however I am pleased to inform the House that the strongest elements of health practitioner legislation from all jurisdictions have come together in this Act. The development of the Act involved extensive consultation with stakeholders and I must thank the South Australian registration boards, the Australian Medical Association (SA) and the Australian Nursing and Midwifery Federation (SA Branch) in supporting my efforts to ensure that student registration was included in the National Scheme. While student registration has previously been adopted across all regulated health professions in South Australia, for other jurisdictions this is a new practice. However, students at various stages of their training work directly with patients or clients in clinical practices and it is important to ensure that these students are also subject to standards, codes of conduct and medical fitness to ensure the health and safety of the public is protected.

The National Law has been agreed by the Australian Health Workforce Ministerial Council, and it is important that this law is adopted in this State as agreed by the Ministerial Council. To do otherwise will undermine the basic principles of the Act to have nationally consistent standards and processes and to facilitate workforce mobility across jurisdictions.

There are two health professions that are currently regulated in South Australia that will not be included in the National Scheme from 1 July 2010. The first, occupational therapists, will join the National Scheme from 1 July 2012. Until their inclusion in the National Scheme they will continue to be regulated under the South Australian Occupational Therapy Practice Act 2005. The second profession is dental technicians. Dental technicians, unlike the other dental professions, are not currently regulated in all jurisdictions, and this is why they have not been included in the National Scheme. Despite dental technicians not being included in the National Scheme, Health Ministers can continue their regulation within their jurisdiction.

The primary reason for the regulation of a health profession is to minimise the occupation's potential risk to public health and safety. We have considered carefully the arguments for and against the continued regulation of dental technicians and have decided that dental technicians will no longer be required to be registered in South Australia from the commencement of the National Law. Dental technicians construct and repair dentures and other dental appliances, including crowns and bridges. They make these dental appliances to the specification of a dentist or dental prosthetist, who is responsible for the care of the patient. Dental technicians do not deal directly with the public. Any potential risks associated with the work of dental technicians can be appropriately managed by existing infection control and occupational health and safety legislation. The profession may wish to adopt a self-regulatory approach if they so choose, and there are many examples of professions of where this approach has been used successfully, including social workers and speech pathologists.

The legislative process in the implementation of the National Registration and Accreditation Scheme is a three stage process. The first stage was the passage of the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 of Queensland which enabled the legal and governance arrangements to be established to assist the implementation of the National Scheme from 1 July 2010.

The second stage was the passage of the Health Practitioner Regulation National Law Act 2009 of Queensland, which will repeal the 2008 Act from 1 July 2010, and cover the substantial elements of the National Scheme including registration and accreditation arrangements, complaints, conduct, health and performance arrangements, privacy and information sharing arrangements, and transitional arrangements.

The third stage is the introduction of adopting or corresponding legislation by other jurisdictions to apply the National Law as a law of that jurisdiction, or in the case of Western Australia, the introduction of corresponding laws to achieve the same effect.

This Bill fulfils this third stage in the legislative process. The Bill also makes consequential amendments needed to fully implement the National Scheme in South Australia, continues arrangements in this State for matters not covered by the National Scheme, and repeals existing health practitioner registration legislation that will now be covered by the National Scheme.

The Bill adopts the Health Practitioner Regulation National Law Act 2009 of Queensland as a law of this State. This gives effect to the registration and accreditation of health practitioners that wish to practise in this State falling under the responsibility of the national board for that profession. The South Australian registration boards that currently provide this function will be wound-up with the repeal of the State registration Acts.

Some of the national boards have decided to maintain State or regional committees to provide an effective and timely local response to health practitioners and the public. Although the constitution and names of the Boards will change, members of the Medical Board of South Australia, the Nursing and Midwifery Board of South Australia, and the Physiotherapy Board of South Australia will continue under committees of their respective national boards. Members of the current Dental Board of South Australia and the South Australian Psychological Board will transition to a regional board with board members from the Northern Territory and Western Australia respectively. Although no State or regional committee of the national board has been designated for the other health professions, there will still be a strong local presence through the State Office of the Australian Health Practitioner Regulation Agency to be headed by Ms Alyson Smith, Registrar/Chief Executive Officer of the Nursing and Midwifery Board of South Australia.

The Bill establishes the South Australian Health Practitioners Tribunal to hear disciplinary matters against health practitioners and appeals against decisions of the registration boards. Under the Intergovernmental Agreement to establish the National Scheme each jurisdiction must establish an external complaints and review process. The South Australian Health Practitioners Tribunal will fulfil this requirement. This tribunal will be established as a stand-alone tribunal outside of the Court system. The Government has decided to opt for this model because we believe that it will be able to provide a more timely resolution of matters than an equivalent tribunal established within the Court system. Similar tribunals operate in the Northern Territory, New South Wales and New Zealand, and reports from these jurisdictions indicate that practitioners find these tribunals to be less threatening and friendlier, thereby minimising anxieties for both complainants and practitioners. Such a tribunal structure is also expected to be less costly to parties and to provide lower operating costs. Decisions of the tribunals also tend to be more consistent within professions and across professions.

Matters before the tribunal will be heard before a President or Deputy President who will sit with a panel of three members, consisting of two health practitioner members from the same health profession as the practitioner to whom the matter relates, and one member who is able to represent the interests of the broad range of consumers of health services. To be eligible for appointment as a President or Deputy President of the tribunal, a person must be a legal practitioner of not less than seven years standing.

The tribunal will be supported by a small registry that will be responsible for the receipt and coordination of matters to be heard by the tribunal and administrative support to the tribunal.

The licensing of pharmacy premises and pharmacy ownership restrictions are not covered by the National Scheme and will continue to be the responsibility of the States and Territories. This Bill continues the provisions for the regulation of pharmacy premises and depots in South Australia that are currently contained in the Pharmacy Practice Act 2007. A separate independent statutory authority, the Pharmacy Regulation Authority SA, will be established to oversee the regulation of pharmacy premises and pharmacy ownership restrictions. The Authority will be a much smaller body than the current Pharmacy Board of South Australia, with membership from the Department of Health, The Pharmacy Guild of Australia, the Pharmaceutical Society of Australia, the Australian Friendly Societies Pharmacies Association, and a consumer representative.

The Authority will be responsible for the appointment of a General Manager and such staff considered necessary to allow the Authority to perform its regulatory functions. As currently occurs with the Pharmacy Board of South Australia, the Authority will be funded solely from the registration and other fees associated with the regulation of these premises.

The Bill also continues the restrictions on the sale of optical appliances without a prescription, including cosmetic contact lenses, that are contained in the current Optometry Practice Act 2007. While the National Law restricts the prescribing of optical appliances to optometrists, opticians or medical practitioners, there are no restrictions on the supply of optical appliances to people who possess a prescription. Unfortunately jurisdictions could not agree on a national approach and the supply restrictions were left to individual jurisdictions to consider under their own legislation.

We believe that it is important to maintain the restrictions on the sale of optical appliances, including cosmetic contact lenses or plano lenses, to people who have a prescription from a qualified practitioner. This is in the interests of public safety. This will ensure that people wishing to wear cosmetic contact lenses will have lenses that fit correctly as well as the information they need to use, store and clean them properly. While cosmetic contact lenses do not have any therapeutic value, there is evidence that they can change the physiology of the eye, and if not fitted properly, can cause serious infection and damage to the eye.

It is interesting to note that the national Optometry Board of Australia wrote to all jurisdictions encouraging them to include provisions within their legislation to restrict the supply of optical appliances to achieve a national approach, and the Government had no hesitation in agreeing to their request.

The Bill also covers consequential amendments to a number of South Australian Acts to ensure consistency with the National Law. Under the National Law the Health and Community Services Complaints Commissioner in South Australia must be notified of a complaint received by a National Board in relation to a South Australian practitioner. The Board and the Commissioner must attempt to agree on how the complaint is to be dealt with, and if they are unable to agree, then the most serious action proposed by either must be taken. For example, if the Commissioner believes that the matter should be referred to the South Australian Health Practitioners Tribunal but the National Board believes that the matter could be dealt with by a panel of the Board, the matter will be referred to the tribunal. The consequential amendments to the South Australian Health and Community Services Complaints Act 2004 are definitional and relate to the bodies and provisions within the National Law. The Commissioner will have the ability to make a report to the Minister for Health if dissatisfied with the outcome of an investigation by a National Board. The Commissioner will also have the power to request information from a National Board on the progress, or result, of an investigation.

The Bill also includes a number of saving and transitional provisions related to the repeal of the current South Australian health practitioner legislation and the wind-up of the registration boards. This includes the transfer of assets and liabilities from the registration boards to the Australian Health Practitioner Regulation Agency, which will then distribute these funds to the corresponding National Boards. The amount to transfer into the National Scheme has been determined by an agreed formula covering the operating costs, liabilities and revenue derived from registration fees across all registration boards. Some registration boards will have a balance of funds after the transfer to the National Scheme and these funds will transfer to the Minister for Health for distribution to external agencies to administer for purposes agreed between the Minister and those boards (for example, research, scholarships). Funds from the Pharmacy Board of South Australia derived from the regulation of pharmacy premises and depots will transfer to the newly established Pharmacy Regulation Authority SA. No funds from the current registration boards will be used by the Government for other purposes, and funds collected from one profession will not be used for another profession.

Eligible staff from the current registration boards will be offered redeployment with the South Australian Department of Health if they are not offered a position with the Australian Health Practitioner Regulation Agency, or if they are declared excess to requirements by the Agency within a two year period of the commencement of the National Scheme in South Australia.

I would like to take the opportunity to thank those staff and members, both past and present, of the South Australian registration boards for the service that they have provided in ensuring the health and safety of the public through the regulation of health professions. The transition from the State-based system to a national scheme does not imply that the tasks that they have carried out in the past have failed. In fact, South Australia has been fortunate not to have cases similar to those widely publicised in other jurisdictions of practitioners that have not been fit and proper persons to practise or that have engaged in unprofessional conduct. But I believe that it is now time to move from the current jurisdictional-based system to a national scheme where practitioners will be subjected to consistent registration standards and codes.

A number of jurisdictions have already passed legislation to participate in the National Scheme from 1 July 2010. It is now important that the legislation is passed to allow this State to also participate in the National Scheme. Failure to do so will require South Australian practitioners wishing to practise in another jurisdiction, or a practitioner from another jurisdiction wishing to practise in this State, to pay an additional registration fee and be subject to a separate registration process and possibly be required to adhere to different codes of practice. This is an unnecessary administrative burden to impose on health practitioners. Failure to pass this measure will also be disruptive for practitioners and registration boards who have already made plans to transition into the national scheme on 1 July 2010. Passage of this measure will also allow the State to meet its commitment to the Council of Australian Governments to implement the National Scheme on 1 July 2010.

This Bill will ensure the continuation of the objectives to protect the health and safety of the public through the regulation of health services and ensuring that practitioners that provide these services maintain high standards of competence and conduct from the current State legislation into a nationally consistent scheme.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation by proclamation.

3—Definitions

This clause provides for definitions of terms used in the Act. Subclause (2) provides that if a term is used in the Act and in the National Law, the terms have the same meanings in the Act as they have in the National Law.

Part 2—Adoption of Health Practitioner Regulation National Law

4—Application of Health Practitioner Regulation National Law

This clause provides that the Health Practitioner Regulation National Law (the 'National Law') set out in the schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland, as in force from time to time, applies as a law of South Australia.

Each jurisdiction that adopts the National Law will have an equivalent provision in its adopting Act so that the National Law will be the law of each jurisdiction and is not only the law of Queensland. The effect is that a person registered as a health practitioner under the National Law is registered nationally, rather than requiring registration in each jurisdiction, and each of the entities created by the National Law is created not only by Queensland law but the law of each jurisdiction. For example, each National Board will be not only a Queensland body but also a body of each of the jurisdictions in which the National Law is applied. Section 7 of the National Law clarifies that the effect is the creation of one single national entity rather than separate bodies in each jurisdiction.

Clause 4(b) provides that the Act may be referred to as the Health Practitioner Regulation National Law (South Australia).

Clause 4(c) provides that the National Law, as applying in South Australia, is part of the Act. This is to ensure that the text of the National Law has effect for all purposes in South Australia as an ordinary Act of Parliament. The effect of the provision is that a reference in legislation to 'an Act' or 'any other Act' will include the National Law as applying in South Australia.

5—Meaning of generic terms in Health Practitioner Regulation National Law for the purposes of this jurisdiction

This clause defines some generic terms used in the National Law for the purposes of the application of that Law in South Australia.

6—Responsible tribunal for Health Practitioner Regulation National Law

This clause provides that the South Australian Health Practitioners Tribunal, constituted under Part 3 of this measure, is the responsible tribunal for the purposes of the Health Practitioner Regulation National Law (South Australia).

7—Exclusion of legislation of this jurisdiction

This clause provides that a number of Acts that generally apply in South Australia do not apply to the Health Practitioner Regulation National Law (South Australia) or instruments, including regulations, made under that Law. In particular, Acts dealing with the interpretation of legislation, financial matters, privacy, freedom of information, the role of the ombudsman and matters relating to the employment of public servants will not apply to the Health Practitioner Regulation National Law (South Australia). Instead, provisions have been included in the National Law to deal with each of these matters, ensuring that the same law applies in relation to each jurisdiction that adopts the National Law.

Part 3—South Australian Health Practitioners Tribunal

Division 1—Establishment of Tribunal

8—Establishment of Tribunal

The South Australian Health Practitioners Tribunal is established.

Division 2—Members of Tribunal

9—President and Deputy Presidents

The membership of the Tribunal will include a President and 1 or more Deputy Presidents. A person will not be eligible for appointment as the President or a Deputy President unless the person is a legal practitioner of not less than 7 years standing, or a magistrate.

10—Panel members

The Tribunal will also consist of members drawn from 2 panels established under this clause. One panel will consist of members of the health professions under the Health Practitioner Regulation National Law. The other panel will consist of persons who are suitable to represent the interests of consumers of health services.

11—Allowances and expenses

This clause entitles a member of the Tribunal to remuneration, allowances and expenses determined by the Governor.

12—Validity of acts of Tribunal

This clause protects acts and proceedings of the Tribunal in cases where there is a vacancy in the membership of, or a defect in an appointment of a person to, the Tribunal or a panel.

13—Registrar of Tribunal

This clause provides that there will be a Registrar of the Tribunal (and there may also be a Deputy Registrar). The office of registrar may be held in conjunction with another office or position.

14—Immunities

A member of the Tribunal has the same immunities from civil liability as a Judge of the District Court. Officers and staff of the Tribunal are also protected from personal liability for honest acts or omissions in carrying out (or purportedly carrying out) official functions.

Division 3—Constitution of Tribunal

15—Constitution of Tribunal

This clause sets out how the Tribunal is to be constituted for the purposes of particular proceedings.

Division 4—Jurisdiction

16—Jurisdiction

The Tribunal will have the jurisdiction conferred by this measure or the National Law (as it applies as a law of South Australia).

Division 5—Proceedings, related powers and orders

17—Determinations

Any question of law will be determined by the presiding member. For other questions or matters, the Tribunal (when constituted by more than 1 member) will act according to unanimous or majority decision.

18—Provisions as to proceedings before Tribunal

This clause deals with the conduct of proceedings by the Tribunal.

19—Powers of Tribunal

This clause sets out the powers of the Tribunal to summons witnesses and require the production of documents or other evidence in proceedings before the Tribunal.

20—Enforcement of decisions of Tribunal

This clause provides for the enforcement of certain decisions of the Tribunal under the National Law.

21—Costs

Any costs awarded by the Tribunal under the National Law may be recovered as a debt.

22—Power of Tribunal to make rules

The Tribunal will be able to make rules regulating the practice and procedure of the Tribunal or providing for other matters relevant to the Tribunal.

Division 6—Appeals

23—Rights of appeal

An appeal will lie to the District Court, in its Administrative and Disciplinary Division, against a decision of the Tribunal.

24—Operation of order may be suspended

This clause empowers the Tribunal or the District Court to suspend the operation of an order pending the determination of an appeal.

25—Variation or revocation of conditions imposed by Court

This clause will allow the District Court to vary or revoke a condition that it may impose under the National Law.

Part 4—Pharmacy practice

Division 1—Interpretation

26—Interpretation

This clause provides for definitions of terms used in this Part.

Division 2—Pharmacy Regulation Authority SA

Subdivision 1—Establishment of Authority

27—Establishment of Authority

This clause establishes the Pharmacy Regulation Authority SA as a body corporate with perpetual succession, a common seal, the capacity to litigate in its corporate name and all the powers of a natural person capable of being exercised by a body corporate.

Subdivision 2—Authority's membership

28—Composition of Authority

This clause provides for Authority to consist of 5 members appointed by the Governor on the nomination of the Minister. It also provides for the appointment of deputy members.

29—Terms and conditions of membership

This clause provides for members of the Authority to be appointed for a term not exceeding 3 years and to be eligible for re-appointment on the expiry of a term of appointment. The clause sets out the circumstances in which a member's office becomes vacant and the grounds on which the Governor may remove a member from office. It also allows members whose terms have expired, or who have resigned, to continue to act as members for the purposes of proceedings under Division 4.

30—Presiding member and deputy

This clause requires the Minister, after consultation with the Authority, to appoint a pharmacist member of the Authority to be the presiding member of the Authority, and another pharmacist member to be the deputy presiding member.

31—Vacancies or defects in appointment of members

This clause ensures acts and proceedings of the Authority are not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

32—Remuneration of members

This clause entitles a member of the Authority to remuneration, allowances and expenses determined by the Governor.

Subdivision 3—General Manager and staff

33—General Manager and staff

This clause provides for the appointment of a General Manager by the Authority on terms and conditions determined by the Authority. It also provides for the Authority to have such other staff as it thinks necessary for the proper performance of its functions and empowers the Authority to employ persons on leave from employment in the Public Service or a Crown instrumentality or agency, as well as making use of the services, facilities or officers of an administrative unit (with the approval of the relevant Minister).

Subdivision 4—General functions and powers

34—Functions of Authority

This clause sets out the functions of the Authority and requires it to perform its functions with the object of protecting the health and safety of the public by achieving and maintaining high professional standards in the provision of pharmacy services in South Australia.

35—Delegations

This clause empowers the Authority to delegate its functions or powers.

Subdivision 5—Authority's procedures

36—Authority's procedures

This clause deals with matters relating to the Authority's procedures such as the quorum at meetings, the chairing of meetings, voting rights, the holding of conferences by telephone and other electronic means and the keeping of minutes.

37—Conflict of interest etc under Public Sector provisions

This clause provides that a member of the Authority will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in the matter that is shared in common with pharmacists generally or a substantial section of pharmacists in this State.

Subdivision 6—Accounts, audit and annual report

38—Accounts and audit

This clause requires the Authority to keep proper accounting records of its financial affairs and have annual statements of accounts prepared in respect of each financial year. It requires the accounts to be audited annually by an auditor approved by the Auditor-General and appointed by the Authority, and empowers the Auditor-General to audit the Authority's accounts at any time.

39—Annual report

This clause requires the Authority to prepare an annual report for the Minister and requires the Minister to table the report in Parliament.

Division 3—Registration of pharmacies and depots

40—Registers

This clause requires the General Manager to keep certain registers, specifies the information required to be included in each register, makes the General Manager responsible for the form and maintenance of the registers and for the correction of entries. The clause also requires the registers to be kept available for inspection by the public and permits access to be made available by electronic means. A person ceasing to carry on a pharmacy business must inform the General Manager of that fact. A maximum penalty of $5,000 is fixed for non-compliance.

41—Registration of premises as pharmacy

This clause makes it an offence for a person to provide restricted pharmacy services except at premises registered as a pharmacy and fixes a maximum penalty of $50,000.

42—Restriction on number of pharmacies

This clause makes it an offence for Friendly Society Medical Association Limited (FSMA) to provide pharmacy services at more than 40 pharmacies in South Australia. A person other than a friendly society must not provide pharmacy services at more than 6 pharmacies, and a friendly society other than FSMA must not commence to provide pharmacy services at a pharmacy if friendly societies other than FSMA already provide pharmacy services at 9 pharmacies, or if another number is prescribed, that number. The maximum penalty for a breach of these restrictions is $50,000.

43—Supervision of pharmacies by pharmacists

This clause requires a person who carries on a pharmacy business to ensure that a pharmacist is in attendance and available for consultation by members of the public at each pharmacy at which the business is carried on while the pharmacy is open to the public unless restricted pharmacy services or prescribed pharmacy services are not offered to the public and access to those areas of the pharmacy used for the provision of such services is physically prevented and certain other specified requirements are met. A maximum penalty of $50,000 is fixed for non-compliance.

44—Certain other businesses not to be carried on at pharmacy

This clause makes it an offence to carry on certain kinds of businesses at a pharmacy. The maximum penalty fixed is $50,000.

45—Registration of premises as pharmacy depot

This clause makes it an offence for a person to use premises outside Metropolitan Adelaide as a pharmacy depot unless the premises are registered as a pharmacy depot and fixes a maximum penalty of $50,000.

46—Conditions

This clause makes the registration of a pharmacy or pharmacy depot subject to any conditions imposed by the Authority or prescribed by the regulations. It also empowers the Authority to vary conditions of registration on its own initiative or on application by the holder of registration. The clause makes it an offence for a person to contravene or fail to comply with a condition of a registration and fixes a maximum penalty of $50,000.

47—Notices

This clause empowers an authorised officer to issue a notice for the purpose of securing compliance with a condition of a registration or a requirement imposed in relation to registration under this Division. It makes it an offence for a person to fail to comply with a notice without reasonable excuse and fixes a maximum penalty of $5,000. The clause also creates an offence of hindering or obstructing a person complying with a notice and fixes a maximum penalty of $10,000. The General Manager is empowered, after due enquiry, to suspend or cancel the registration of premises as a pharmacy or pharmacy depot if a person fails to comply with a notice,

48—Appeals

This clause provides a right of appeal to the District Court against certain acts and decisions of the Authority.

Division 4—Registration of pharmacy services providers

49—Registers

This clause requires the General Manager to keep registers of current and former pharmacy services providers, specifies the information required to be included in each register, makes the General Manager responsible for the form and maintenance of the registers and for the correction of entries. The clause also requires the registers to be kept available for inspection by the public and permits access to be made available by electronic means.

50—Registration of pharmacy services providers

This clause makes it an offence for a person to act as a pharmacy services provider unless registered under this Division and requires a pharmacy services provider to keep the General Manager informed of any change in particulars required to be given in relation to registration. In each case the maximum penalty is fixed at $1000.

Division 5—Restrictions relating to provision of pharmacy services

51—Restrictions relating to provision of pharmacy services

Subclause (1) regulates the provision of restricted pharmacy services. A natural person must be either a qualified person and provide the service personally or through the instrumentality of another natural person who is a qualified person, or be a pharmacist who does not hold a current authorisation to practice but provides the service through the instrumentality of another natural person who is a qualified person. A body corporate must be a corporate pharmacy services provider and provide the service through the instrumentality of a natural person who is a qualified person. A trust must be a trustee pharmacy services provider and provide the service through the instrumentality of a natural person who is a qualified person. A maximum penalty of $50,000 or imprisonment for 6 months is fixed if a restricted pharmacy service is provided other than by a person authorised by subclause (1). A qualified person, in relation to a restricted pharmacy service, is either—

a pharmacist who holds a current authorisation to practice in the pharmacy profession (other than as a student) under the National Law; or

a person authorised by or under other legislation to provide a restricted pharmacy service.

However, subclauses (2) and (3) provide that subclause (1) does not apply in relation to—

a restricted pharmacy service provided by a natural person who is an unqualified person if the person carried on a pharmacy business before 20 April 1972 and has continued to do so since that date and the service is provided through the instrumentality of a natural person who is a qualified person; or

a restricted pharmacy service provided by the personal representative of a deceased pharmacist or person referred to above within 1 year (or such longer period as the Authority may allow) after the date of death if the service is provided through the instrumentality of a natural person who is a qualified person; or

a restricted pharmacy service by the official receiver of a bankrupt or insolvent pharmacist if the service provided for not more than 1 year (or such longer period as the Authority may allow) and is provided through the instrumentality of a natural person who is a qualified person; or

a restricted pharmacy service provided by a person vested by law with power to administer the affairs of a corporate pharmacy services provider that is being wound up or is under administration, receivership or official management if the service is provided for not more than 1 year (or such longer period as the Authority may allow) and is provided through the instrumentality of a natural person who is a qualified person; or

a restricted pharmacy service provided by an unqualified person in prescribed circumstances; or

a restricted pharmacy service provided by an unqualified person pursuant to an exemption.

The Governor may grant an exemption by proclamation if of the opinion that good reason exists for doing so in the particular circumstances of a case. The clause makes it an offence punishable by a maximum fine of $50,000 to contravene or fail to comply with a condition of an exemption.

Division 6—Disciplinary proceedings

52—Preliminary

This clause provides that in this Part the terms occupier of a position of authority and pharmacy services provider includes a person who is not but who was, at the relevant time, an occupier of a position of authority or a pharmacy services provider. The clause also provides for the Authority and the National Agency or National Board, or all 3 entities, to agree on protocols relating to the handling of disciplinary proceedings.

53—Cause for disciplinary action

This clause specifies what constitutes proper cause for disciplinary action against a pharmacy services provider or a person occupying a position of authority in a corporate or trustee pharmacy services provider.

54—Inquiries as to matters constituting grounds for disciplinary action

This clause requires the Authority to inquire into a complaint relating to matters alleged to constitute grounds for disciplinary action against a person unless the Authority considers that the matter should be dealt with under the National law or the Authority considers the complaint to be frivolous or vexatious. If after conducting an inquiry, the Authority is satisfied that there is proper cause for taking disciplinary action, the Authority can censure the person, order the person to pay a fine of up to $10,000 or prohibit the person from carrying on business as a pharmacy services provider or from occupying a position of authority in a corporate or trustee pharmacy services provider. Fines imposed by the Authority are recoverable by the Authority as a debt.

55—Contravention of prohibition order

This clause makes it an offence to contravene a prohibition order made by the Authority or to contravene or fail to comply with a condition imposed by the Authority. A maximum penalty of $75,000 or imprisonment for 6 months is fixed.

56—Constitution of Authority for purpose of proceedings

This clause sets out how the Authority is to be constituted for the purpose of hearing and determining proceedings under this Division.

57—Provisions as to proceedings before Authority

This clause deals with the conduct of proceedings by the Authority under this Division.

58—Powers of Authority in relation to witnesses etc

This clause sets out the powers of the Authority to summons witnesses and require the production of documents and other evidence in proceedings before the Authority.

59—Principles governing proceedings

This clause provides that the Authority is not bound by the rules of evidence and requires it to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. It requires the Authority to keep all parties to proceedings properly informed about the progress and outcome of the proceedings

60—Representation at proceedings before Authority

This clause entitles a party to proceedings before the Authority to be represented at the hearing of those proceedings.

61—Costs

This clause empowers the Authority to award costs against a party to proceedings before the Authority and provides for the taxation of costs by a Master of the District Court in the event that a party is dissatisfied with the amount of costs awarded by the Authority.

62—Appeal

This clause provides a right of appeal to the District Court against decisions of the Authority under this Division.

63—Operation of order may be suspended

This clause empowers the Authority or the Court to suspend the operation of an order made by the Authority where an appeal is instituted or intended to be instituted.

Division 7—Related provisions

64—Authorised officers

This clause provides for the appointment of authorised officers for the purposes of this Part and sets out their powers for the purposes of investigations. It makes certain conducts towards an authorised officer (such as hindering or obstruction or using abusive language) an offence punishable by a maximum fine of $5,000 and also makes it an offence for a person in charge of premises to fail to give an authorised officer assistance and facilities necessary to enable the officer to exercise powers. A maximum penalty of $5,000 is prescribed.

The clause also provides that if a person is required to provide information or to produce a document, record or equipment under this clause and the information, document, record or equipment would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless provide the information or produce the document, record or equipment, but the information, document, record or equipment so provided or produced will not be admissible in evidence against the person in proceedings for an offence, other than an offence against this or any other Act relating to the provision of false or misleading information.

65—False or misleading statement

This clause makes it an offence for a person to make a false or misleading statement in a material particular (whether by reason of inclusion or omission of any particular) in information provided under this Part and fixes a maximum penalty of $20,000.

66—Disclosure of information

This clause authorises the Authority to disclose information obtained by it while acting under this Part to the National Agency or to a National Board if reasonably required in connection with the administration or operation of the National Law.

67—Use of word 'pharmacy'

This clause makes it an offence for a person to describe premises as a 'pharmacy' in the course of business unless the premises are registered as a pharmacy or pharmacy depot under this Part. The maximum penalty is fixed at $50,000.

68—Pharmacy services providers to be indemnified against loss

This clause prohibits pharmacy services providers from providing pharmacy services unless insured or indemnified in a manner and to an extent approved by the Authority against civil liabilities that might be incurred by the provider in connection with the provision of such services. It fixes a maximum penalty of $10,000 and empowers the Authority to exempt persons or classes of persons from the requirement to be insured or indemnified.

69—Information relating to claim against pharmacy services provider to be provided

This clause requires a pharmacy services provider to provide the Authority with prescribed information relating to a claim made against the provider for alleged negligence by the provider in connection with the provision of pharmacy services. The clause fixes a maximum penalty of $10,000 for non-compliance.

70—Punishment of conduct that constitutes an offence

This clause provides that if conduct constitutes both an offence against this Part and grounds for disciplinary action under this Part, the taking of disciplinary action is not a bar to conviction and punishment for the offence, and conviction and punishment for the offence is not a bar to disciplinary action.

71—Evidentiary provision

This clause provides evidentiary aids for the purposes of proceedings for offences against this Part.

72—Vicarious liability for offences

This clause provides that if a body corporate is guilty of an offence against this Part, each person occupying a position of authority in the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless it is proved that the person could not, by the exercise of reasonable care, have prevented the commission of the principal offence.

Part 5—Optometry practice

73—Interpretation

This clause provides for definitions of terms used in this Part.

74—Unauthorised dispensing of optical appliances

This clause makes it an offence for a person to sell an optical appliance by retail unless it has been prescribed for the purchaser by an optometrist, orthoptist or medical practitioner. A maximum penalty of $30,000 is fixed.

75—Dispensing expired prescription

This clause makes it an offence to dispense an optical appliance pursuant to an expired prescription. A maximum penalty of $15,000 is fixed.

76—Failure to give free prescription on request

This clause makes it an offence for a person who prescribes or dispenses an optical appliance to give the patient a free copy of the prescription on request. A maximum penalty of $5,000 is fixed.

77—Authorised officers

This clause provides for the appointment of authorised officers for the purposes of this Part and sets out their powers for the purposes of investigations. It makes certain conducts towards an authorised officer (such as hindering or obstruction or using abusive language) an offence punishable by a maximum fine of $5,000 and also makes it an offence for a person in charge of premises to fail to give an authorised officer assistance and facilities necessary to enable the officer to exercise powers. A maximum penalty of $5,000 is prescribed.

The clause also provides that if a person is required to provide information or to produce a document, record or equipment under this clause and the information, document, record or equipment would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless provide the information or produce the document, record or equipment, but the information, document, record or equipment so provided or produced will not be admissible in evidence against the person in proceedings for an offence, other than an offence against this or any other Act relating to the provision of false or misleading information.

Part 6—Miscellaneous

78—Delegations

This clause empowers the Minister and the Chief Executive to delegate their functions and powers.

79—Commissioner of Police may give criminal history information

This clause authorises the Commissioner of Police to give criminal history information to the National Board and certain law enforcement bodies.

80—Application of fines

This clause provides for fines imposed for an offence against this Act to be paid to the Minister, the Attorney-General or Pharmacy Regulation Authority SA (according to specified circumstances).

81—Investigators

This clause allows State public sector employees to be appointed as investigators under the National Law.

82—Regulations

This clause empowers the Governor to make regulations.

83—Review of Part 3

The Minister will cause a review of the operation of Part 3 to be conducted after the Act has been in operation for a period of 3 years.

Schedule 1—Related amendments, repeals and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Acts Interpretation Act 1915

2—Amendment of section 4—Interpretation

It will be most useful for the purposes of other Acts that there is a general definition of Health Practitioner Regulation National Law (being the National Law as in force from time to time under the Health Practitioner Regulation National Law Act 2009 of Queensland and as it applies as a law of this State, another State or a Territory, or the law of another State or Territory that substantially corresponds to the national law).

Part 3—Amendment of Births, Deaths and Marriages Registration Act 1996

3—Amendment of section 4—Definitions

This clause sets out an amendment that is consequential on new arrangements for the regulation of health professions under the Health Practitioner Regulation National Law.

Part 4—Amendment of Boxing and Martial Arts Act 2000

4—Amendment of section 3—Interpretation

This clause sets out an amendment that is consequential on new arrangements for the regulation of health professions under the Health Practitioner Regulation National Law.

Part 5—Amendment of Consent to Medical Treatment and Palliative Care Act 1995

5—Amendment of section 4—Interpretation

This clause sets out amendments that are consequential on new arrangements for the regulation of health professions under the Health Practitioner Regulation National Law.

Part 6—Amendment of Controlled Substances Act 1984

6—Amendment of section 4—Interpretation

This clause sets out amendments that are consequential on new arrangements for the regulation of health professions under the Health Practitioner Regulation National Law.

Part 7—Amendment of Coroners Act 2003

7—Amendment of section 3—Interpretation

This clause sets out an amendment that is consequential on new arrangements for the regulation of health professions under the Health Practitioner Regulation National Law.

Part 8—Amendment of Cremation Act 2000

8—Amendment of section 4—Interpretation

This clause sets out an amendment that is consequential on new arrangements for the regulation of health professions under the Health Practitioner Regulation National Law.

Part 9—Amendment of Criminal Law Consolidation Act 1935

9—Amendment of section 269A—Interpretation

This clause sets out an amendment that is consequential on new arrangements for the constitution of health professions under the Health Practitioner Regulation National Law.

Part 10—Amendment of Health and Community Services Complaints Act 2004

10—Amendment of section4—Interpretation

It is necessary to make consequential amendments to the definitions used for the purposes of the Health and Community Services Complaints Act 2004.

11—Amendment of section 57—Complaints received by Commissioner that relate to registered service providers

It is necessary to ensure that the scheme under Part 8 of the Health Practitioner Regulation National Law (South Australia) applies if a complaint received by the Commissioner relates to a nationally registered health practitioner.

12—Amendment of section 58—Referral of complaint to registration authority

This clause is mainly concerned to insert a saving provision with respect to section 150 of the Health Practitioner Regulation National Law (South Australia).

13—Amendment of section 59—Action on referred complaints

This is a consequential amendment.

14—Amendment of section 60—Referral of complaint to Commissioner

If a complaint received by a registration authority relates to a nationally registered health practitioner, the matter will proceed under section 150 of the Health Practitioner Regulation National Law (South Australia).

15—Amendment of section 62—Information from registration authority

This is a consequential amendment.

16—Repeal of Schedule 1

This is a consequential amendment.

Part 11—Amendment of Health Professionals (Special Events Exemption) Act 2000

17—Amendment of section 3—Interpretation

This is a consequential amendment.

18—Amendment of section 5—Definition of visiting health professional

This is a consequential amendment.

19—Amendment of section 10—Exemptions relating to offences

This is a consequential amendment.

20—Amendment of section 11—Complaints about visiting health professionals

These are consequential amendments.

Part 12—Amendment of Landlord and Tenant Act 1936

21—Amendment of section 13—Interpretation

This clause sets out an amendment that is consequential on new arrangements for the constitution of health professions under the Health Practitioner Regulation National Law.

Part 13—Amendment of Mental Health Act 2009

22—Amendment of section 3—Interpretation

This clause sets out amendments that are consequential on new arrangements for the constitution of health professions under the Health Practitioner Regulation National Law.

Part 14—Amendment of Rail Safety Act 2007

23—Amendment of section 4—Interpretation

This clause sets out an amendment that is consequential on new arrangements for the constitution of health professions under the Health Practitioner Regulation National Law.

24—Amendment of section 148—Immunity for reporting unfit rail safety worker

This clause sets out an amendment that is consequential on new arrangements for the constitution of health professions under the Health Practitioner Regulation National Law.

25—Amendment of Schedule 2—Provisions relating to alcohol and other drug testing

This clause sets out an amendment that is consequential on new arrangements for the constitution of health professions under the Health Practitioner Regulation National Law.

Part 15—Amendment of Road Traffic Act 1961

26—Amendment of Schedule 1—Oral fluid and blood sample process

This clause sets out an amendment that is consequential on new arrangements for the constitution of health professions under the Health Practitioner Regulation National Law.

Part 16—Amendment of Summary Offences Act 1953

27—Amendment of section 81—Power to search, examine and take particulars of persons

This clause sets out amendments that are consequential on new arrangements for the constitution of health professions under the Health Practitioner Regulation National Law.

Part 17—Repeal of certain South Australian Acts

28—Repeal of certain South Australian Acts

The following Acts are to be repealed in connection with the introduction of the new National Law:

(a) the Chiropractic and Osteopathy Practice Act 2005;

(b) the Dental Practice Act 2001;

(c) the Medical Practice Act 2004;

(d) the Nursing and Midwifery Practice Act 2008;

(e) the Optometry Practice Act 2007;

(f) the Pharmacy Practice Act 2007;

(g) the Physiotherapy Practice Act 2005;

(h) the Podiatry Practice Act 2005;

(i) the Psychological Practices Act 1973.

Part 18—Saving and transitional provisions

Division 1—Interpretation

29—Interpretation

This clause sets out definitions relevant to the operation of the saving and transitional provisions set out in Part 18 of this measure.

Division 2—Transfer of assets and liabilities

30—Ministerial orders

This clause will allow the Minister to deal with any assets or liabilities of a prescribed body. Any dealing under this clause will be effected by an instrument (to be called an 'allocation order').

31—Effect of allocation order

An allocation order will vest assets or liabilities specified in the allocation order to the transferee in accordance with the order. If an allocation order relates to the transfer of a prescribed body's interest in an agreement, the transferee will become a party to the agreement in place of the prescribed body and the agreement will take effect as if the transferee had always been a party to the agreements.

32—Continued effect of certain acts by a prescribed body

An act or omission of a prescribed body in relation to assets or liabilities transferred by an allocation order will, if it is of continuing effect, be taken to be the transferee's act or omission.

33—Continuation of proceedings

Proceedings involving a prescribed body in relation to assets or liabilities transferred by an allocation order may be continued and completed by or against the transferee.

34—Evidence of transfer

The Minister may provide evidence of the transfer of assets or liabilities under these provisions.

35—References

A reference in an instrument or other document to a prescribed body in connection with an asset or liability transferred under this Division is, from the date of transfer, taken to be a reference to the transferee (unless the instrument or document is excluded by the Minister by notice in the Gazette).

36—Substitution of relevant entity

This clause provides for the transferee to be taken to be a party to any contract, guarantee, undertaking or security given by a prescribed body that is subject to the application of these provisions.

Division 3—Staff

37—Staff

This clause sets out certain arrangements that apply to qualifying staff of a prescribed body. A qualifying member of staff is, essentially, a person employed on a permanent basis by a prescribed body whose salary (or salary package) does not exceed $120,000. A qualifying member of staff who has not gained employment with the National Agency will be incorporated into the Department as a redeployee. Furthermore, a qualifying member of staff employed by the National Agency who, within the period of 2 years after this provision comes into operation, is declared by the National Agency to be excess to the requirements of the National Agency may elect to be incorporated into the Department as a redeployee.

Division 4—Provision of information and assistance

38—Provision of information and assistance

A prescribed body is authorised to provide documents and other information, and assistance, to a national body (or a person nominated by a prescribed body) to assist the national body in the performance or exercise of its functions or powers.

Division 5—References

39—References to members of professions

This clause provides a scheme under which references to a member of a profession, now to be regulated under the National Law, will be taken to be a reference to a member of the profession under the National Law.

Division 6—Complaints, notifications and disciplinary proceedings

40—Extended application of disciplinary proceedings

This clause makes it clear that the disciplinary provisions of the National Law may extend to any conduct or other circumstance occurring, arising or existing before the participation day for this jurisdiction. This clause is a facilitating provision that has effect subject to the other provisions set out in this measure.

41—Proceedings before boards

This clause is primarily intended to ensure that a matter brought before a prescribed body (or the Registrar of such a body), but not yet subject to a formal complaint, will continue as if subject to a notification under Part 8 of the National Law.

42—Proceedings initiated by complaint

This clause sets out the arrangements that will apply if a formal complaint has been laid before a prescribed body or a Tribunal under an existing Act. If the proceedings have commenced so as to be part-heard, they will continue in all respects under the existing Act. If the proceedings are not yet to the stage of being part-heard, they will continue before the responsible tribunal constituted under the new scheme but in other respects will be dealt with under the relevant State Act.

43—Complaints being dealt with on participation day

This clause makes it clear that the responsible tribunal may act under the scheme established by section 289 of the National Law (subject to the arrangements applying in the preceding provisions).

Division 7—Other matters

44—Actions with respect to immunity

This clause provides that an action that would otherwise lie against a prescribed body under section 74(3) of the Public Sector Act 2009 (but for the dissolution of the prescribed body) will lie instead against the Crown.

45—Pharmacies and pharmacy depots

This clause sets out transitional arrangements that will apply in relation to the registration of pharmacies and pharmacy depots.

46—Pharmacy services providers

This clause sets out transitional arrangements that will apply in relation to the registration of pharmacy services providers.

47—Areas of special need

An area of special need in force under section 33(2)(d)(iii) of the Medical Practice Act 2004 will continue for the purposes of the National Law.

48—References to Registrars

This clause makes provision with respect to references to a Registrar under a repealed Act.

49—FOI applications

This clause relates to any FOI application where the relevant agency would be a prescribed body (which will now be dissolved). The National Agency, or a National Board nominated by the National Agency in a particular case, will be taken to be the relevant agency for the purposes of dealing with the application.

50—Fees

This clause will allow arrangements to be put in place to provide an extension for the payment of fees by members of designated health professions.

51—Regulations

The Governor will be able to make additional provisions of a saving or transitional nature.

52—Validity and effect of steps

This clause ensures that nothing done under this scheme can give rise to any liability or cause of action under another law.

Debate adjourned on motion of Hon. S.G. Wade.


At 22:10 the council adjourned until Thursday 27 May 2010 at 14:15.


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