Health Legislation Amendment Act (No 2) 2018 (NSW)

An Act to make miscellaneous amendments to various Acts that relate to health and associated matters.

1Name of Act

This Act is the Health Legislation Amendment Act (No 2) 2018.

2Commencement

This Act commences on the date of assent to this Act.

Schedule 1Amendment of Health Care Complaints Act 1993 No 105

Insert after section 94B (4) (d):

(e)

the person is disqualified from being registered as a registered health practitioner in a health profession.

Schedule 2Amendment of Health Practitioner Regulation (Adoption of National Law) Act 2009 No 86[1]Schedule 1 Modification of Health Practitioner Regulation National Law

Omit section 147B (4) and (5) from Schedule 1 [15].

[2]Schedule 1 [15], section 150G Ending suspension [NSW]

Omit the section.

[3]Schedule 1 [15], section 155C (1) (f)

Insert “by order” after “impose”.

[4]Schedule 1 [15], section 159 (1) (a1)

Insert before section 159 (1) (a):

(a1)

against a reprimand by the Council for the health profession under Division 3;

[5]Schedule 1 [15], section 159C (1)

Omit the subsection. Insert instead:

(1)

On an appeal against a decision of a Council, the Tribunal may by order—

• (a)

  confirm the decision; or

• (b)

  set aside the decision; or

• (c)

  set aside the decision and make a new decision (being a decision that the Council could have made).

[6]Schedule 1 [15], section 163A (4), definition of “decision-making entity”

Omit “or under Subdivision 5 of Division 3” from paragraph (b1).

Insert instead “, Subdivision 5 of Division 3 or section 155C (1) (f)”.

[7]Schedule 1 [15], section 164A (1) (a)

Omit “or the NSW regulations”.

Insert instead “(including any conditions or suspension imposed under the NSW provisions)”.

[8]Schedule 1 [15], sections 164A (3) (e) and 164B (1) (a)

Omit “or the NSW regulations” wherever occurring.

[9]Schedule 1 [15], section 176D

Omit the section. Insert instead:

176DEffect of suspension [NSW](1)

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.

Note—

This subsection is a Health Practitioner Regulation National Law provision (see section 207 of the National Law).

(2)

Accordingly, a reference in any other Act or instrument to a registered health practitioner does not include a reference to a health practitioner whose registration is suspended.

(3)

When a suspension imposed under this Law ends, the person’s rights and privileges as a registered health practitioner or student in the health profession are revived, subject to—

• (a)

  any other action taken by the Council for the profession under Subdivision 7 of Division 3 of Part 8 or Division 4 of Part 8; or

• (b)

  any order of the Tribunal on a complaint referred to the Tribunal.

[10]Schedule 1 [24AA]

Insert after Schedule 1 [24]:

[24AA]Section 321 Offences relating to prohibition orders made before commencement

Omit the section. Insert instead:

321Note—

This section is not applicable to New South Wales.

[11]Schedule 1 [25], Schedule 5A

Insert after clause 38:

Part 9Provisions consequent on enactment of Health Legislation Amendment Act (No 2) 2018 [NSW]39Appeal against reprimand by Council [NSW]

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

40Tribunal’s powers on appeal [NSW]

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

41Effect of suspension [NSW]

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

[12]Schedule 1 [25], Schedule 5E, clause 6 (1) (b), (f) and (g) and (3)

Omit “Minister” wherever occurring. Insert instead “Council”.

Schedule 3Amendment of Poisons and Therapeutic Goods Act 1966 No 31

Insert after section 18A:

Division 1ASubstances and goods used for cosmetic and other purposes18BObject of Division

The object of this Division is to prescribe requirements in respect of certain substances and goods that may be used for cosmetic and other purposes.

18CSubstances and goods to which Division applies

This Division applies to the following:

• (a)

  botulinum toxins for human use,

• (b)

  hyaluronic acid and its polymers in preparations for injection or implantation,

• (c)

  any other substance specified in Schedule 2, Schedule 3, Schedule 4 or Schedule 8 of the Poisons List that is prescribed by the regulations,

• (d)

  any therapeutic goods prescribed by the regulations.

18DRegulation of substances and goods to which Division applies(1)

The regulations may prescribe requirements in respect of the possession, manufacture, supply, use, prescription, administration, storage and disposal of any substance or goods to which this Division applies.

(2)

A person who contravenes a requirement prescribed for the purposes of this section and identified in the regulations as a category 1 requirement or a category 2 requirement is guilty of an offence.

Maximum penalty:

• (a)

  in the case of a requirement identified in the regulations as a category 1 requirement—1,000 penalty units in the case of a body corporate or 200 penalty units or imprisonment for 6 months (or both) in the case of an individual, or

• (b)

  in the case of a requirement identified in the regulations as a category 2 requirement—250 penalty units in the case of a body corporate or 50 penalty units in any other case.

Schedule 4Amendment of Private Health Facilities Act 2007 No 9[1]Section 33A

Insert after section 33:

33ACertain services or treatments must not be performed at unlicensed facility(1)

The regulations may prescribe specified services or treatments or classes of services or treatments that must not be performed at a private health facility unless the private health facility has a licence or has a licence of a particular class.

(2)

A person must not perform a service or treatment at a private health facility in contravention of a regulation made for the purposes of this section.

Maximum penalty: 500 penalty units.

(3)

It is a defence to a prosecution under this section if the accused person establishes that the person had reasonable grounds for believing the private health facility had a licence that permitted the provision of the service or treatment.

[2]Section 51 Power to enter and inspect

Insert after section 51 (1):

(1A)

The authorised officer may enter and inspect the premises either alone or together with such other persons as the authorised officer considers necessary.

[3]Section 51 (3) (a)

Omit the paragraph. Insert instead:

(a)

direct a person to furnish any document or other thing that is in the possession, or under the control, of the person,

[4]Section 51 (3) (b) and (c), (4) and (5)

Omit “document, record” wherever occurring. Insert instead “document”.

[5]Sections 51A and 51B

Insert after section 51:

51APower of authorised officers to require answers(1)

An authorised officer may, by notice in writing, direct a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters about which the authorised officer requires information in connection with the exercise of the authorised officer’s functions:

• (a)

  to answer questions in relation to those matters, and

• (b)

  if a meeting with the authorised officer is reasonably necessary to enable questions in relation to those matters to be properly asked and answered, to meet with the authorised officer to answer such questions.

(2)

The Secretary may, by notice in writing, direct a corporation to nominate, in writing and within a specified time, a director or officer of the corporation to represent the corporation for the purpose of answering any such questions.

(3)

Answers given by the nominated person bind the corporation.

(4)

The place and time at which a person may be directed to attend under subsection (1) (b) is to be:

• (a)

  a place or time nominated by the person, or

• (b)

  if the place and time so nominated is unreasonable in the circumstances or if the person fails to nominate a place and time, a place and time nominated by the authorised officer.

(5)

An authorised officer may record any questions and answers under this section if the person to be questioned has been informed that the record is to be made.

(6)

A record may be made by any method, including sound or video recording.

(7)

A copy of any such record must be provided to the person who is questioned as soon as practicable after the record is made.

51BRequirement to provide information and documents(1)

An authorised officer may, by notice in writing, direct a person to furnish to the authorised officer such information or documents as the authorised officer requires in connection with the exercise of the authorised officer’s functions.

(2)

A notice under this section must specify the manner in which, and the time by which, the information or documents to which the notice relates must be furnished.

(3)

A notice under this section may only require a person to furnish existing documents that are in the person’s possession or that are within the person’s power to obtain lawfully.

(4)

The authorised officer to whom a document is furnished under this section may take copies of it.

(5)

If any document required to be furnished under this section is in electronic, mechanical or other form, the notice requires the document to be furnished in written form, unless the notice otherwise provides.

[6]Section 53 Obstruction of officers and failure to comply with direction

Omit section 53 (b). Insert instead:

(b)

fail to comply with a direction under this Part.

[7]Section 53A

Insert after section 53:

53AProvisions relating to requirements to furnish documents, information or answer questions(1)

A person is not guilty of an offence of failing to comply with a direction under this Part to furnish documents, information or other things, or to answer a question, unless the person was warned on that occasion that a failure to comply is an offence.

(2)

A person is not excused from a direction under this Part to furnish documents, information or other things, or to answer a question, on the ground that the document, information, thing or answer might incriminate the person or make the person liable to a penalty.

(3)

However, any information furnished or answer given by a natural person in compliance with a direction under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under Part 5A of the Crimes Act 1900) if:

• (a)

  the person objected at the time to doing so on the ground that it might incriminate the person, or

• (b)

  the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.

(4)

Any document furnished by a person in compliance with a direction under this Part is not inadmissible in evidence against the person in criminal proceedings by reason only that the document incriminates the person.

(5)

Further information obtained as a result of a document or information furnished, or of an answer given, in compliance with a direction under this Part is not inadmissible by reason only:

• (a)

  that the document or information had to be furnished or the answer had to be given, or

• (b)

  that the document or information furnished or answer given incriminates the person.

Schedule 5Amendment of Public Health Act 2010 No 127[1]Part 2A

Insert after Part 2:

Part 2APublic warnings about health matters12APublic warning statements(1)

If the Chief Health Officer is of the view that there is a risk to the health or safety of the public or a sector of the public, the Chief Health Officer may make public a statement identifying and giving warnings or information about the risk.

(2)

The Chief Health Officer is to take into account any matters prescribed by the regulations in determining whether to make public a statement under this section.

(3)

The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 do not apply with respect to a statement made public under this section.

12BNo liability for issuing or publishing warning statements(1)

No liability is incurred by the Chief Health Officer or any other person for making public in good faith:

• (a)

  a statement referred to in section 12A, or

• (b)

  a fair report or summary of such a statement.

(2)

In this section:

liability includes liability for defamation.

[2]Section 101 Definitions

Insert “or who is disqualified from being registered as a registered health practitioner in a health profession” after “health registration legislation” in the definition of de-registered health practitioner in section 101 (1).

[3]Section 132 Exclusion of liability of the State and others

Insert “, defamation” after “negligence” in section 132 (2).

[4]Schedule 5 Savings, transitional and other provisions

Insert after Part 2:

Part 3Provision consequent on enactment of Health Legislation Amendment Act (No 2) 20188Public warnings

Section 12A extends to permit a statement to be made public about a risk that arose before the commencement of that section.