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Dental Practitioners Registration
DENTAL PRACTITIONERS
REGISTRATION BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Policy Objectives of the Bill
The principal policy objectives of the Bill are to:
· protect the public by ensuring health care is delivered by
registered dentists and dental specialists in a professional, safe and
competent way;
· uphold the standards of practice within the dental profession; and
· maintain public confidence in the dental profession.
Reasons why the proposed legislation is necessary
The Review of Medical and Health Practitioner Registration Acts (the
Review), which commenced in 1993, is a comprehensive review and
reform of the legislation which registers and regulates a range of health
professions, including dentistry. The objective of the Review has been to
develop an efficient and effective regulatory system for the professions
aimed at protecting the public and promoting quality health care standards.
New health practitioner legislation has been developed to give effect to this
key objective and to take into account:
· the changing environment in which these health professions
operate
· administrative efficiency, including the desirability of a consistent
and uniform regulatory approach to matters which are common to
all the health professions
· interstate and overseas approaches to regulating health professions
· mutual recognition principles
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· contemporary legislative standards, including consistency with
fundamental legislative principles; and
· regulatory reform principles including regulatory efficiency,
National Competition Policy and the desirability of minimising
red tape and costs to business.
The new health practitioners legislative package will replace the current
registration Acts with 15 Acts comprising:
· the Health Practitioners (Professional Standards) Act 1999
which deals with all issues regarding complaints, discipline and
impairment across all registered health practitioners (except
nurses)
· the Health Practitioner Registration Boards (Administration) Act
1999 which deals with administrative arrangements for all the
registration boards; and
· 13 profession specific registration Bills (including this Bill) which
deal with the constitution, functions and powers of registration
boards; registration criteria, categories and processes; business
and commercial issues (eg advertising); regulation of practice and
protection of professional title; and other miscellaneous issues.
To the greatest extent possible, these Bills adopt a uniform
approach to matters common to the registered health professions
--that is, the Bills are based on standard provisions that have been
modified to address any profession specific issues for each
profession. Attachment 1 provides a comparative overview of the
13 Bills which indicates the extent to which each Bill deviates
from the standard provisions.
The first stage of the health practitioners legislative package, the Health
Practitioners (Professional Standards) Act 1999 and the Health
Practitioner Registration Boards (Administration) Act 1999 commenced
operation in February 2000. This Bill forms part of the second stage of the
health practitioners legislative package. The new package will establish a
more effective registration system which will provide greater protection of
the public and a significantly reduced regulatory burden.
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How the policy objectives will be achieved
The objects of the legislation are primarily achieved in the following
ways:
· establishing the Dental Board of Queensland
The board is established as the body responsible for administering the
legislation. The Bill strengthens the accountability of the board by ensuring
the board comprises a majority of practitioner members, while at the same
time increasing the level of public membership (to two members) in order
to enable effective participation by members of the wider community.
Importantly, the Bill underpins the principle that all board members are
appointed to represent the public interest and not the interests of professional
or consumer organisations. The board's accountability is further
strengthened through revised meeting procedures, requirements for
declarations of interest by board members and more comprehensive annual
reporting obligations.
· providing for the registration of dentists and dental specialists
Occupational regulation is widely regarded as a highly effective means of
providing protection to the public, addressing inadequate consumer
information and ensuring that practitioners uphold professional standards.
The Bill significantly enhances the existing registration model by:
· simplifying the eligibility criteria for registration, for example, by
replacing outdated and subjective concepts such as `good fame
and character' with more objective indicators of a person's fitness
to practise the profession
· giving the board appropriate powers to enable it to thoroughly
assess applications for registration, for example, to require an
applicant to undergo a written, oral or practical examination to
assess the applicant's ability to practise
· empowering the board to impose and review conditions on
registration to enable practitioners to practise safely within their
abilities, rather than rejecting applicants who are not fully eligible
for registration
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· implementing mechanisms to facilitate the ongoing competence
of practitioners, for example, requiring registrants to demonstrate
recency of practice when applying for renewal of registration
(subject to the prescribing of the detailed requirements), and
statutory encouragement for practitioners to undertake continuing
professional education.
· imposing obligations on dentists and dental specialists and other
persons in relation to the practice of dentistry
The Bill further achieves the objectives of the legislation by providing for
significant offences including:
· restrictions on the use of professional title and `holding out' to be
registered, for example, only a registered dentist may use the title
`dentist'. This is a key offence provision designed to protect the
public by providing consumers with a means of distinguishing
between registered and non-registered practitioners
· engaging in conduct which compromises registrant autonomy.
This is a key offence provision targeted at undesirable corporate
behaviour in health practitioner businesses by both registrant and
non-registrant owners, managers or other persons in a position to
influence registrants
· making or accepting any payment or other benefit for referrals or
recommendations
· failure to comply with advertising restrictions and notification of
business names to the board
· taking a reprisal against any person who provides information,
assistance or evidence in relation to an alleged offence against the
Bill
· failure to comply with conditions on registration; and
· certifying any document, in a professional capacity, which the
registrant knows is false or misleading.
It should be noted that the Bill continues to restrict the practice of
dentistry. The practice restrictions imposed by the Dental Act 1971 and
section 18 of the Dental By-law 1988 will be preserved by the Bill until the
outcomes of the National Competition Policy Review of Restrictions on the
Practice of Dentistry have been considered.
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Estimated cost for Government implementation
The legislation will not have any financial impact on the Government as
the Board will continue to be self-funding from registration and other fees.
Consistency with Fundamental Legislative Principles
Aspects of the Bill which raise possible fundamental legislative principles
are outlined below:
Power to obtain criminal history reports
Under clause 45 of the Bill, the board may, when investigating a person's
application for registration, require the police commissioner to provide a
written report about the applicant's criminal history. The exercise of this
power may be regarded as adversely affecting an individual's privacy.
The provision of this information will assist the board to decide whether
an applicant is fit to practise the profession, as required under clauses 43
(Eligibility) and 45 (Fitness to practise) of the Bill. It is important to note
that the Bill does not affect the operation of the Criminal Law
(Rehabilitation of Offenders) Act 1986. It should also be noted that any
information obtained under this provision by the board will be protected by
the confidentiality obligations under clause 218 of the Bill. Provisions of
this nature are common in occupational regulation legislation where, for the
purpose of protecting public health and safety, the integrity of registrants
must be ensured.
No right of appeal against board's decision to cancel provisional
registration
Clause 61 (Confirmation or cancellation of provisional registration) gives
the board power to confirm or cancel a person's provisional registration.
Although the board must notify the person of the board's decision, the
board is not required to issue an information notice to the person about its
decision. Having regard to the operation of clause 198 (Who may appeal),
this means that the board's decision to cancel provisional registration can
not be appealed under the Bill.
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The power to provisionally register a person is designed to provide
interim registration in circumstances where the board is not in a position to
make a final decision on a person's application, for example, because the
next board meeting is not scheduled for some time or the applicant is
entitled to, but has not been conferred or awarded his or her qualification.
For this reason, provisional registration is considered to be a `privilege' over
and above `full' registration. It is also important to note that, despite the
board's decision to cancel a person's provisional registration, subclause
62(5) requires the board to consider the person's application for registration.
This ensures that the person is in the same position as a person who has not
been provisionally registered, ie the board must decide to register, or refuse
to register the person and the board's decision to refuse to register the
person is a decision that may be appealed under part 6 of the Bill. For these
reasons, it is considered appropriate for there to be no right of appeal against
the board's decision to cancel provisional registration.
Requirement to notify on-going medical conditions
Clause 70 (Procedural requirements for applications) requires an
applicant for renewal of general registration to state whether he or she
suffers from any ongoing medical condition that adversely affects his or her
ability to practise the profession. This obligation may be regarded as
compromising the rights of the registrant in that this information could be
used by the board to initiate action under the impairment provisions of the
Health Practitioners (Professional Standards) Act 1999.
The requirement to apply for renewal of general registration is a
mechanism for ensuring the ongoing competence of registrants, which in
turn is consistent with the objective of the legislative scheme, including the
Bill, to protect public health and safety. The information that registrants are
required to provide on application for renewal of registration will assist the
board to determine whether the applicant continues to be able to practise the
profession safely and competently.
It should be noted that an applicant's mental and physical health is one of
a number of `fitness to practise' indicators that may be taken into account
under clause 45, when the board assesses the applicant's application for
general registration under part 3 division 2 of the Bill. For this reason, it is
considered reasonable to require applicants for renewal of registration to
advise the board whether they suffer from an ongoing medical condition
that adversely affects their ability to practise the profession (all that is
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required is a `yes' or `no' response to this question). It is important to note
that the board can only deal with this information as permitted under the
Health Practitioners (Professional Standards) Act 1999. That Act, in part,
establishes a two-stage process for dealing with impaired registrants
(including an informal and collaborative approach in the initial stage) which
provides appropriate recognition and protection of registrants' rights.
Reasonable excuse for failure to comply with document production
requirement
Clause 190 (Failure to produce document) makes it an offence for a
person to fail to provide a document to an inspector unless the person has a
reasonable excuse. The provision specifies that it is not a reasonable excuse
for the person not to comply with the requirement if compliance might tend
to incriminate the person. This provision may be regarded as
compromising the person's protection against self-incrimination.
An inspector's power to require a person to produce a document or make
a document available for inspection by the inspector is limited to documents
issued to the person under this Act, for example, a certificate of registration.
Given the limited extent of this provision and the importance of such
documents in achieving the objectives of the legislation, it is reasonable to
require a person to comply with the requirement even if to do so might tend
to incriminate the person.
Reversal of onus of proof
Clause 213 (Responsibility for acts or omissions of representatives)
effectively provides that an action or omission by a person's representative,
in relation to an offence against this Act, is taken to have been done by the
person if the representative was acting within the scope of the
representative's authority. In these circumstances, the person will have been
taken to have committed the relevant offence unless the person can prove
that he or she could not, by the exercise of reasonable diligence, have
prevented the act or omission.
Clause 214 (Executive officers must ensure corporation complies with
Act) provides that if a corporation is convicted of an offence against the Bill,
each executive officer of the corporation is taken to have committed the
offence of failing to ensure that the corporation complies with the relevant
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provision of the Bill. The effect of this clause is to presume an executive
officer of a corporation to be guilty unless the executive officer can prove
that he or she took reasonable steps to ensure the corporation complied with
the provision, or that he or she was not in a position to influence the conduct
of the corporation in relation to the offence.
While these provisions effectively provide for the reversal of the onus of
proof, it is important to note that a number of offences provided for under
the legislation deal with situations where there may be serious risk of harm
to the health and safety of persons (for example, clause 152 Aiding, abetting
etc conduct that is a ground for disciplinary action). Having regard to the
object of the Bill to protect public health and safety, it is appropriate that:
· a person be required to oversee the conduct of his or her
representatives and, in doing so, make reasonable efforts to
ensure that his or her employees or agents comply with the
requirements of the legislation;
· an executive officer who is in a position to influence the conduct
of a corporation be required to ensure the corporation complies
with the legislation; and
· an executive officer who is responsible for a contravention of the
legislation, be accountable for his or her actions and not be able to
`hide' behind the corporation.
As such, it is contended that clauses 213 and 214 are warranted to ensure
that there is effective accountability at a corporate level.
Immunity from proceedings or prosecutions - officials
Clause 231 (Protecting officials from liability) specifies that a board
member, a committee member who is not a board member, the Executive
Officer of the Office of Health Practitioner Registration Boards, a person
appointed by the board to conduct a health assessment under part 3 of the
Bill, an inspector or a person acting under the direction or authority of an
inspector is not civilly liable for act or omission, made honestly and without
negligence, under this Bill.
It is not considered appropriate for an individual to be made personally
liable as a consequence of carrying out his or her responsibilities under the
legislation, in good faith. As such, clause 231 prevents a civil liability from
being attached to an individual. Instead, such liability attaches to the board.
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The proposed immunity under this clause does not extend to an official who
has been negligent, even though the official may have acted in good faith.
Consultation
The issues addressed by the new health practitioners legislative package,
including this Bill, have been the subject of an unprecedented degree of
public consultation undertaken as part of the Review. The consultation
process for the Review has involved:
· release of public consultation documents
· Medical Act Information Paper (1993)
· Review of the Medical Act - Discussion Paper (1994)
· Review of Health Practitioner Registration Acts - Discussion
Paper and 10 profession specific attachments (1994) - 3000
copies distributed and 198 submissions received in response
· Review of Medical and Health Practitioner Registration Acts -
Draft Policy Paper (1996) - over 2000 copies distributed and 252
submissions received.
· public meetings
Public meetings were held in Brisbane, Toowoomba, Maroochydore,
Southport, Cairns and Townsville to discuss issues raised in the 1994
Discussion Papers.
· stakeholder advisory groups
The following groups contributed to the research and policy
development phase of the Review:
· Medical Act Steering Committee (comprising senior public and
private sector medical practitioners, Medical Board members,
representatives of the Australian Medical Association -
Queensland Branch and the Health Rights Commissioner)
· Departmental Advisory Group (comprising registration board
members employed by Queensland Health and the Health Rights
Commissioner)
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In addition, during the research and policy development phase,
consultation was undertaken with public members of the registration
boards and the Health Rights Advisory Council, and nominees of all
registration boards and peak professional associations.
· targeted consultation with key stakeholders
For the purpose of clarifying issues raised in submissions to the Draft
Policy Paper, the Review undertook targeted consultations with 31 key
stakeholders (principally the registration boards and peak professional
associations and consumer groups) over a five month period in 1997.
· exposure drafts of new health practitioner legislation
In February 1999, the Review conducted targeted consultation on
exposure drafts of the first stage of the new health practitioners
legislative package. The Health Practitioners (Professional
Standards) Act 1999 and Health Practitioner Registration Boards
(Administration) Act 1999 commenced operation in February 2000.
In March 2000, the Review conducted targeted consultation on
exposure drafts of the 13 profession specific registration Bills
(including this Bill) with key stakeholders, including the registration
boards, peak health professional associations, relevant tertiary
institutions and specialist colleges, three consumer organisations, the
Health Rights Commissioner and the Office of Health Practitioner
Registration Boards.
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NOTES ON PROVISIONS
PART 1--PRELIMINARY
Division 1--Introduction
Clause 1 sets out the short title of the Act.
Clause 2 provides that the Act commences on a day to be fixed by
proclamation.
Division 2--Operation of Act
Clause 3 specifies that all persons, including the State, are bound by the
Act. However, the State can not be prosecuted for an offence against the
Act.
Clause 4 explains that the Act forms part of a legislative scheme and is to
be read in conjunction with the other legislation comprising the scheme,
namely:
· the health practitioner registration Acts--these Acts are specified
in the definition of this term which appears in the dictionary in
Schedule 4 of the Act
· the Health Practitioner Registration Boards (Administration) Act
1999, which establishes administrative arrangements for the
registration boards; and
· the Health Practitioners (Professional Standards) Act 1999,
which deals with all issues regarding complaints, discipline and
impairment across all registered health practitioners (except
nurses).
Clause 5 requires the board, when deciding an application for registration
or making a decision under this Act affecting a person's registration, to
ensure that its decision complies with and is consistent with the operation of
a decision affecting the person's registration, made by an adjudicative body
under the Health Practitioners (Professional Standards Act) 1999. For
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example, if the Health Practitioners Tribunal cancels a person's registration
and orders that the person can not apply for registration within a specified
period, the board can not decide to register the person under this Act within
the specified period. If a professional conduct review panel orders that
conditions be imposed on a person's registration, the board must ensure that
any decision it makes under this Act which affects the person's registration,
for example, to impose recency of practice conditions under part 3, division
4, does not compromise the effect of the conditions ordered by the panel.
The terms `registrant' and `registration' are defined in the dictionary in
Schedule 4 of the Act.
Clause 6 specifies that this Act does not affect the operation of the
Mutual Recognition (Queensland) Act 1992 or the Trans-Tasman Mutual
Recognition (Queensland) Act 1999, which facilitate the registration in
Queensland of dentists and dental specialists registered in other Australian
jurisdictions and New Zealand.
Division 3 --Objects
Clause 7 sets out the objects of the Act. As detailed in the General
Outline of these Explanatory Notes, the primary focus of the Act is the
protection of the public. The objects set out in subclause 7(1) are very
important for guiding the administration of the legislation. This clause also
sets out the ways in which the objects of the Act are to be achieved through
the legislation. The matters listed in subclause 7(2) are the principal
mechanisms, processes and functions which enable the objects of the Act to
be met.
It should be noted that the term `profession' is defined in the dictionary in
Schedule 4 of the Act, to mean the dental profession.
Division 4--Interpretation
Clause 8 provides that particular words used in the Act are defined in the
dictionary in Schedule 4 of the Act (located at the end of the Act).
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PART 2--DENTAL BOARD OF QUEENSLAND
Division 1--Establishment and functions
Clause 9 establishes a body corporate known as the Dental Board of
Queensland (`the board'). The board is the body responsible for
administering the Act. The term `board' is defined in the dictionary in
Schedule 4 of the Act.
Clause 10 provides that the board does not represent the State.
Clause 11 provides an overview of the board's role by specifying the
board's functions under this Act. The key functions are to:
· assess applications for registration
· register practitioners who meet the eligibility criteria for
registration, with or without conditions on registration
· maintain a publicly accessible register of registrants
· encourage the ongoing competence of registrants through
mechanisms such as renewal of registration and the promotion of
`refresher' courses and continuing professional education (it
should be noted that the board's role in promoting `refresher'
courses and continuing professional education is discretionary)
· monitor and enforce compliance with the Act, including
compliance with conditions on registration; and
· contribute to developments in the regulation of the profession
through conferring and cooperating with bodies such as interstate
regulatory authorities, educational institutions and nationally
recognised accreditation bodies.
Some of these functions are discussed in the General Outline of these
Explanatory Notes (How the policy objectives will be achieved), while other
functions are discussed below in relation to the provisions of the Act which
deal with the particular function.
Clause 12 requires the board to perform its functions under the legislative
scheme independently, impartially and in the public interest. This
requirement reflects the board's status as an independent statutory body
whose members do not represent or serve the interests of the entity which
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nominated them for membership under part 2, division 2 of the Act
(discussed below), but whose members are appointed to represent the
public interest and have a duty to conduct board business independently and
impartially. However, the board is accountable to the Minister for the
performance of its functions and must comply with a Ministerial direction
given under clause 36 (discussed below).
Clause 13 gives the board the powers of an individual to enable the board
to do anything necessary or convenient for the performance of its functions
under this or another Act. There is nothing to limit the board exercising its
powers outside Queensland or Australia. Subclause 13(1) provides
examples of the scope of the board's powers under this clause, including the
power to:
· enter into service agreements under the Health Practitioner
Registration Boards (Administration) Act 1999. The term
`service agreement' is defined in the dictionary in Schedule 4 of
the Act. The effect of subclause 13(2) is to ensure that the board
can not exercise its powers under this clause to circumvent the
operation of the Health Practitioner Registration Boards
(Administration) Act 1999; and
· fix charges for services it supplies. For example, the board could
charge a fee for the provision of statistical data and other
information about its registrants for research or data collection
purposes. It should be noted that this power does not enable the
board to set or change fees prescribed by regulation.
It is important to note that this clause does not provide a comprehensive
list of the board's powers under this Act. Powers that are specific to the
board's functions, for example, the power to register eligible persons, are
separately specified in the provisions of the Act which deal with the
particular function.
Clause 14 provides for the delegation of the board's powers under this
Act, excluding the powers specified in subclause 14(2), to the persons
specified in subclause 14(1). This will ensure the board can exercise its
functions in an effective and efficient manner, for example, the board can
delegate its power to decide to renew or restore registrations. In order to
ensure that the board's powers are delegated only in appropriate cases and to
appropriate persons:
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· subclause 14(2) prevents the board from delegating the key
powers conferred on it for the purpose of protecting the public.
For example, although the board can delegate its power to decide
to renew registrations, it can not delegate its power to decide to
renew registration on recency of practice conditions as the power
to decide to impose conditions can not be delegated; and
· subclause 14(3) provides that when the board delegates a power
to a board committee or a staff member of the Office of Health
Practitioner Registration Boards, the recipient of the delegation
must have qualifications, experience or standing that are
appropriate to the exercise of the power.
The terms `member', `committee', `executive officer', `office',
`renewable registration' and `impose' are defined in the dictionary in
Schedule 4 of the Act.
Division 2--Membership
This division sets out requirements for the composition of the board.
These requirements reflect the policy intention that registration boards must:
· comprise a clear majority of members of the profession
· provide for effective participation by members of the wider
community
· represent the public interest (not the interests of professional
associations or community organisations to which board
members may belong).
Clause 15 provides the capacity to vary the size of the board, within a
range of seven to eleven members. In practice, the size of the board will be
determined by the Governor-in-Council on the recommendation of the
Minister, having regard to the size and needs of the profession and
following consultation with the profession.
Clause 15 specifies that, within the range of seven to eleven members,
the membership of the board must comprise:
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· a majority of practitioners who hold general registration under
part 3 of the Act (`registrant members')--the minimum
requirements for the appointment of registrant members are
specified in clause 16 (discussed below)
· members of the wider community who have an interest in and
knowledge of consumer health issues and who are not, and have
not ever been, registered as a health practitioner (including as a
nurse) in Queensland or any other Australian or overseas
jurisdiction (`public members')--the minimum requirements for
the appointment of public members are specified in clause 17
(discussed below); and
· one lawyer, who is to be nominated by the Minister.
Subclause 15(3) enables the Minister to nominate other persons who do
not belong to the registrant member, public member or lawyer categories
specified in subclause 15(2), for example, a former registrant. Having
regard to the minimum membership requirements specified in subclauses
15(2) & (4) and clauses 16 & 17, the Minister can only nominate persons
under subclause 15(3) where the board comprises nine or more members.
It is important to note that the matters specified in clause 21 (discussed
below) must also be taken into account in determining whether a person is
eligible for board membership.
The term `general registrant' is defined in the dictionary in Schedule 4 of
the Act. The term `earlier corresponding Act', which is used in relation to
public members, is defined in subclause 15(5).
Clause 16 specifies the minimum requirements for the appointment of
registrant members. Having regard to the operation of subclause 15(4), the
board membership must include a majority of registrant members, of
whom:
· at least two members are nominated by professional bodies
considered by the Minister to represent the interests of registrants
· if there is a Queensland-based educational institution for the
profession--one member is nominated by educational
institution/s chosen by the Minister (the term `educational
institution' is defined in the dictionary in Schedule 4 of the Act);
and
· at least one member is nominated by the Minister.
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It should be noted that where there is:
· no Queensland-based educational institution for the
profession--the position is to be filled by a member nominated
under either subparagraph 16(a) or (c); or
· more than one Queensland-based educational institution for the
profession --the governing bodies of the educational institutions
chosen by the Minister must provide a joint nomination.
Clause 17 specifies the minimum requirements for the appointment of
public members. The board membership must include a minimum of two
public members, of whom:
· at least one member is nominated by bodies, such as consumer
advocacy organisations (including organisations whose interests
may be broader than, but include, consumer health issues),
considered by the Minister to have an interest in consumer health
issues; and
· at least one member is nominated by the Minister.
The combined operation of clauses 15--17 means that a board consisting
of seven members will comprise:
· four registrant members (2 nominated by professional bodies; 1
nominated by educational institution/s and 1 nominated by the
Minister)
· two public members (1 nominated by community organisations
and 1 nominated by the Minister); and
· one lawyer (nominated by the Minister).
The additional membership of larger boards (ie those consisting of nine
or more members) may comprise members nominated by:
· the Minister, under subclause 15(3) or subparagraphs 16(c) or
17(b); and/or
· by the bodies referred to in subparagraphs 16(a) or 17(a).
Clause 18 sets out the process by which professional bodies, educational
institutions and community organisations are to provide nominations for the
positions described under subparagraphs 16(a) & (b) and 17(a). This
process does not apply to Ministerial nominees, ie the positions described
under subclause 15(2)(c) and subparagraphs 16(c) and 17(b).
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Step 1: The Minister invites suitable entities to provide nomination/s
within a reasonable period. In doing so, the Minister may
request an entity to provide more than the required number of
nominations.
Step 2: If the Minister receives the required number of nominations for
each position--subclauses 18(4)-(7) do not apply ie the persons
nominated are taken to be the nominees for the relevant
positions.
If the Minister receives more than the required number of
nominations for each position (either in response to the
Minister's request under subclause 18(3) or on the initiative of
the entity)--subclause 18(4) applies ie the Minister must
choose a person from the nominations provided for the
position.
If the Minister receives less than the required number of
nominations for each position (because an entity fails to provide
any nominations or provides less than the number of
nominations requested by the Minister under subclause 18(3)
or an entity nominates an ineligible person)--subclause 18(6)
applies ie the Minister must nominate a person for the position.
Subclause 18(7) provides that, in doing so, the Minister may
nominate a person nominated by the entity, even though the
entity provided less than the number of nominations requested
by the Minister.
Step 3: If the Minister chooses a person under subclause 18(4)--the
person chosen is taken to be the nominee for the relevant
position.
If the Minister nominates a person under subclause 18(6)--the
person nominated for the position is deemed to have been
nominated by the relevant entity.
Clause 19 provides for the Governor-in-Council to appoint a chairperson
and deputy chairperson of the board and stipulates that only registrant
members can be appointed to these offices. Clause 19 also enables a person
to be appointed as both a member and chairperson or deputy chairperson of
the board under the same instrument of appointment; specifies the term of
office for both appointments; describes how the offices become vacant and
provides for the deputy chairperson to act as chairperson in the
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circumstances specified in subclause 19(6). The terms `chairperson' and
`deputy chairperson' are defined in the dictionary in the Schedule 4 of the
Act.
Clause 20 specifies that the maximum term of office for a member is
four years. There is nothing to prevent the appointment of a member for a
period of less than four years, which means membership terms can be
staggered. In addition, there is no restriction on the number of terms a
person can serve as a member of the board.
Clause 21 sets out the circumstances which render a person ineligible to
be appointed, or to continue, as a member of the board. These include
conviction of an indictable offence in any jurisdiction or an offence against
this Act. The term `convicted' is defined in the dictionary in Schedule 4 of
the Act. It should be noted that this clause operates in addition to section 25
of the Acts Interpretation Act 1954 which specifies that the power to appoint
a person to an office includes the power to remove the person from office at
any time.
Clause 22 specifies the circumstances in which a member is taken to
have vacated office, namely when a member resigns; ceases to be eligible
for membership under clause 21 (discussed above); is absent without the
board's permission from 3 consecutive board meetings (where a quorum is
present) of which due notice has been given; or no longer meets the
requirements for membership specified under subclause 15(2), for example,
a registrant member who loses his or her registration; a public member who
becomes a registered health practitioner or a lawyer who is struck off the
Roll or disbarred.
It is important to note that any vacancies must be filled having regard to
the requirements of clauses 15--17, in order to ensure that the minimum
requirements for the composition of the board continue to be met.
Clause 23 specifies when a notice of resignation tendered to the Minister
by a member, chairperson or deputy chairperson, takes effect.
Clause 24 sets out the process for `fast-tracking' the appointment of a
person to act in the office of a member who is absent on leave. For this to
occur, the member (`the approved absent member') must first obtain the
Minister's approval for a leave of absence of more than three months. The
Minister may then appoint another person to act as an interim replacement
for the approved absent member. It is important to note that the person
appointed as the interim replacement must belong to the same membership
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category as the approved absent member. For example, the Minister can
only replace a public member with a person who meets the membership
requirements specified in subclause 15(2)(b) for public members.
Subclause 24(4) specifies what is to occur if the approved absent member is
the deputy chairperson. If the approved absent member is the chairperson,
then the arrangements specified under subclause 19(6) apply (discussed
above).
It should be noted that if the board does not require the appointment of an
interim replacement for a member who is on leave, there is no requirement
for the member to obtain the Minister's approval for a leave of absence.
Clause 25 provides that, despite the minimum membership requirements
specified in clauses 15--17, a vacancy in the membership of the board does
not affect the performance of the board's functions or the exercise of its
powers.
Clause 26 stipulates the entitlement of members to be paid fees and
allowances decided by the Governor-in-Council. It is implicit that members
may waive their entitlement under this clause.
Division 3--Board business
It should be noted that this division applies to any business conducted by
the board under the legislative scheme, except where there is a more specific
provision in the relevant Act (for example, the Health Practitioners
(Professional Standards) Act 1999 sets out detailed procedural provisions
relating to board hearings of disciplinary matters).
Clause 27 enables the board to administratively determine procedural
matters associated with the conduct of its business, subject to the
requirements of this division.
Clause 28 requires the chairperson to determine meeting times and places
and to convene a meeting when requested to do so, in writing, by the
Minister or by a quorum of members.
Clause 29 specifies how many members constitute a quorum for the
board. Having regard to the generally understood meaning of the term, a
`quorum' is the number of members required to be present at a board
meeting in order for the board to transact its business legally.
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Clause 30 specifies who is to preside at meetings of the board, namely
the chairperson; or in the absence of the chairperson, the deputy chairperson;
or in the absence of both the chairperson and the deputy chairperson, a
member (who must be a registrant member) chosen by a majority of the
members present.
Clause 31 sets out various procedural requirements for the conduct of
board meetings. Subclauses 31(1)--(3) specify voting
procedures--questions are to be determined by a majority of votes; each
member present has a deliberative vote, and in the event of a tied vote, the
presiding member also has a casting vote; a member who abstains from
voting is taken to have voted for the negative. Subclauses 31(4)--(6)
provide for board meetings to be held by distance communication and for
board decisions to be made by flying minutes.
Clause 32 requires the board to keep minutes of its meetings which,
when a dissenting member requests, must also record the fact that the
member voted against a given resolution. The board must also keep a
separate record of all board decisions made by flying minute under
subclause 31(6).
Division 4--Board committees
It should be noted that this division applies to any business conducted by
the board under the legislative scheme, except where there is a more specific
provision in the relevant Act.
Clause 33 gives the board power to establish committees to assist in the
performance of its functions and to decide terms of reference and any other
matters about a committee that are not provided for under this Act.
Subclause 33(4) specifies the functions of a committee. It is important to
note the operation of clause 14 (discussed above) in relation to the
membership of a committee whose functions include exercising powers
delegated to it by the board. In order for a committee to exercise powers
delegated to it under clause 14, the membership of the committee must
include at least one board member. Otherwise there is no restriction on the
membership of a committee, which may include and/or comprise
non-board members. It should also be noted that a committee must keep a
record of the decisions it makes when exercising a power delegated to it
under clause 14. (It is important to note that under section 12 of the Health
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Practitioner (Professional Standards) Act 1999, the board can not delegate
its powers under that Act to a committee).
Clause 34 stipulates the entitlement of committee members to be paid
fees and allowances decided by the Governor-in-Council. It is implicit that
committee members may waive their entitlement under this clause.
Division 5--Disclosure of interests by board members and committee
members
It should be noted that this division applies to any business conducted by
the board under the legislative scheme.
Clause 35 places an obligation on board members and committee
members to disclose any personal or pecuniary interest (for example, in
matters relating to themselves, their families or business associates) where
such interests relate directly or indirectly to matters under consideration by
the board or the committee and which could conflict with the proper
performance of the member's duties when considering the matter. When a
disclosure is made under this clause, the member must absent himself or
herself from deliberations and decisions about the matter and the disclosure
must be minuted. The absence of members under this clause does not
compromise the quorum of the board or committee. Subclause 35(8)
excludes the mere fact that a member is registered from the operation of this
clause.
Division 6--Directions by Minister
Clause 36 specifies the Minister's powers in relation to the board. To
enhance the accountability of the board, the Minister has the power to direct
the board in relation to a matter relevant to the performance of its functions
under this Act. The Minister may give a written direction under this
provision, including a direction to provide reports and information, if the
Minister is satisfied that it is necessary in the public interest to do so.
However, it is important to note that the Minister can not give a direction
about the decisions specified in subclause 36(3) which affect a person's
registration. Notwithstanding the board's duty under clause 12 (discussed
above), the board must comply with the Minister's direction.
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Dental Practitioners Registration
The Minister's powers in relation to the board are balanced by a
requirement to publicly report on directions given under this provision. The
reporting requirement, which applies to all Ministerial directions given to the
board under this Act, is set out in clause 37 below.
Division 7--Annual reports
Clause 37 specifies various matters that must be included in the board's
annual report under the Financial Administration and Audit Act 1977 (refer
also to clause 38 below). Specifically, the board is required to report on the
amount of expenditure on investigations and inspections under part 5 of the
Act and on discretionary functions such as those described in subparagraphs
37(1)(d) and (e). The board's annual report must provide statistical
information including the number of registrants and must also include
non-identifying copies of all Ministerial directions given to the board under
clause 36 during the financial year. Having regard to the objects of the Act,
it is particularly important for the board to report on any activities
undertaken specifically for the benefit of consumers of dental services, for
example, the production of an information booklet about the standards of
practice expected of registered practitioners.
It should be noted that the board may also be required to include a
statement under clause 219 (discussed below) in its annual report.
Division 8--Other provisions about the board
Clause 38 provides that the board is a statutory body for the purpose of
the Financial Administration and Audit Act 1977 (`the FA&A Act'). The
effect of clause 38 is to apply the provisions of the FA&A Act, which deals
with the financial administration and audit of statutory bodies, to the board.
For example, under the FA&A Act the board will be required to prepare
annual financial statements and an annual report.
Clause 39 provides that the board is a statutory body for the purpose of
the Statutory Bodies Financial Arrangements Act 1982 (`the SBFA Act').
The effect of clause 39 is to apply the provisions of the SBFA Act to the
board. For example, the SBFA Act gives the board power to operate a
deposit and withdrawal account with a financial institution to the extent
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Dental Practitioners Registration
necessary or convenient for its day-to-day operations. In order to operate
such an account with an overdraft facility, the SBFA Act requires the board
to obtain the Treasurer's approval to do so. Subclause 39(2) provides that
the board's powers under this Act are limited to the extent specified in Part
2B of the SBFA Act. For example, even though clause 13 gives the board
the powers of an individual, the board's investment powers are limited to
the investment powers provided under the SBFA Act.
Clause 40 specifies arrangements for the custody and use of the board's
common seal. It should be noted that section 42A of the Evidence Act 1987
provides for judicial notice to be taken of the imprint of the board's seal.
PART 3--REGISTRATION
Part 3 makes provision for the registration of eligible persons under this
Act. Part 3 establishes three categories of registration (general, specialist
and special purpose, all of which may be granted provisionally), specifies
the eligibility criteria for each registration category and makes provision for
the various stages of the registration process ie making and deciding
applications, periods of registration and registration certificates, imposing
and reviewing conditions on registration, renewal and restoration and
cancellation of registration.
Division 1--Preliminary
Clause 41 specifies that only an individual may apply for registration
under this Act. The term `registration' is defined in the dictionary in
Schedule 4 of the Act.
Division 2--Applications for general registration
Division 2 makes provision for the category of general registration. This
is the basic form of registration, which can be granted with or without
conditions. Conditions imposed on a general registration can be reviewed
under part 3, division 7. A general registration can be renewed under part 3,
division 4 and restored under part 3, division 5. The term `general
registration' is defined in the dictionary in the Schedule 4 of the Act.
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Subdivision 1--Applications
Clause 42 sets out the procedural requirements for making an application
for general registration. The term `approved form' is defined in the
dictionary in Schedule 4 of the Act. Subparagraph 42(1)(c)(iv) enables the
board to require applicants to provide other specified documents, for
example proof of identity, with an application.
Subdivision 2--Eligibility for general registration
Clause 43 sets out the criteria which the board must consider when
deciding whether an applicant is eligible for general registration. The criteria
are specified in detail in clauses 44 and 45 respectively (discussed below).
Subclause 43(2) clarifies that the board may address concerns about an
applicant's eligibility for general registration by imposing conditions on the
registration under clause 57 (discussed below).
Clause 44 specifies the circumstances in which an applicant is qualified
for general registration, as required under subparagraph 43(1)(a). It is
intended that the qualifications prescribed under subparagraph 44(1)(a) will
be current Australian and New Zealand qualifications in the profession.
Subparagraph 44(1)(b) applies to applicants who apply for general
registration on the basis of on a non-prescribed qualification. It should be
noted that subparagraph 44(1)(b) operates in conjunction with subclause
44(2), which sets out matters the board may take into account when
deciding whether an applicant is qualified under subparagraph 44(1)(b).
The board may obtain advice from an external body for this purpose. In
this regard, it is intended that the board will work collaboratively with any
nationally recognised bodies which have the function of accrediting,
assessing and/or recognising qualifications in the profession.
Subparagraph 44(1)(c) applies to applicants who are not qualified under
subparagraphs 44(1)(a) or (b), for example, applicants who have a
qualification in the profession that does not meet the requirements under
subparagraphs 44(1)(a) or (b) but who have significant practical experience
in the profession. It should be noted that the board is not obliged to set and
administer the qualifying examination itself.
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Clause 45 sets out the matters the board may take into account when
considering whether an applicant is fit to practise the profession, as required
under subparagraph 43(1)(b). These matters include:
· mental and physical health
· command of the English language
· whether the applicant is or was previously registered in any
jurisdiction (including previous registration in Queensland), and if
so, whether the registration is or was subject to conditions,
suspended or cancelled and the reasons why
· whether the applicant has been convicted of an indictable offence,
an offence against health practitioner legislation or another
practice-related offence in any jurisdiction; and
· whether the applicant is relying on a qualification obtained more
than three years before applying for registration. [For the limited
purpose of this provision, subclause 45(2) extends the meaning of
`qualification' and `qualification day' to include the passing of a
qualifying examination under subclause 44(1)(c)]. In these
circumstances, the board may take into account the nature, extent
and period of practice by the applicant since obtaining the
qualification. This consideration is targeted at practitioners who
delay in applying for initial registration or who seek to reinstate
their registration after allowing it to lapse for an extended period.
Subclauses 45(3)--(4) give the board power to obtain an applicant's
criminal history. Subclause 45(5) defines the term `criminal history' for
this purpose.
Subdivision 3--Inquiries into applications
Clause 46 gives the board power to:
· investigate the applicant, for example, by researching or making
reasonable inquiries about the applicant
· require the applicant to provide further information or
documentation
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· require the applicant to undergo a written, oral or practical
examination to assess the applicant's ability to practise the
profession. It should be noted that there is nothing to prevent the
board from appointing an external body to set and administer the
examination on the board's behalf; and
· require the applicant to undergo a health assessment to assess the
applicant's mental and physical capacity to practise the profession.
The term `health assessment' is defined in the dictionary in
Schedule 4 of the Act.
Clause 46 requires the board to give the applicant notice of the board's
intention to exercise the powers specified in subparagraphs 46(1)(b)--(d)
within a reasonable minimum period of 30 days. An applicant who fails to
comply with these requirements is taken to have withdrawn his or her
application.
Clause 47 specifies who may be appointed to conduct a health
assessment under subparagraph 46(1)(d).
Clause 48 requires the person or persons appointed under clause 47 to
prepare a report about the health assessment (`the assessment report') for
the board's consideration. The assessment report must address the matters
specified in subclause 48(2).
Clause 49 shields an assessment report prepared under clause 48 from
use in any proceedings, other than the proceedings exempted under the
definition of `stated proceedings' in subclause 49(4), ie proceedings that
could arise out of the board's decision to impose conditions to address the
applicant's mental and/or physical incapacity to practise. The purpose of the
shield provided by this provision is to ensure that assessment reports are
used only for the purpose for which they were created and not for any other
kind of actions.
Clause 50 creates an entitlement for persons who conduct health
assessments and prepare assessment reports to be paid by the board. The
provision is cast in such a way as to enable these persons to waive payment.
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Subdivision 4--Decision on applications
Clause 51 requires the board to consider an application that meets the
requirements under clause 42 (discussed above) and decide either to
register, or refuse to register, the applicant as a general registrant.
Clause 52 sets out what action the board must take when it makes a
decision under clause 51 (discussed above):
· if the board decides to register the applicant, it must as soon as
practicable issue an appropriate certificate of registration to the
applicant. It is important to note the operation of clause 134
(discussed below), which clarifies that when the board decides to
register an applicant under this division, the person is taken to be
registered under part 3. It is also important to note the operation
of clause 56 (discussed below) which clarifies when the
applicant's registration takes effect. The terms `general registrant'
and `certificate of general registration' are defined in the dictionary
in Schedule 4 of the Act. Clause 55 specifies the form and
contents of a registration certificate (discussed below); or
· if the board decides to refuse to register the applicant, the board
must give the applicant an information notice containing the
information specified in paragraphs (a)--(d) of the definition of
`information notice' (which is located in the dictionary in
Schedule 4 of the Bill). An information notice is a written notice
which details the board's decision and the reasons for it and
provides details regarding when and how the applicant may
appeal the board's decision. Having regard to the operation of
clause 198 (discussed below), the board's decision to refuse to
register an applicant for general registration is a decision that may
be appealed under part 6 of the Act.
Clause 53 sets out the timeframes within which the board must decide an
application. These timeframes may be extended under clause 54 (discussed
below). It is important to note that if the board fails to decide the application
within these timeframes (and the applicant is not provisionally registered
under part 3, division 3), the board is taken to have decided to refuse to
register the applicant. Having regard to the operation of subclause 52(2), the
person is entitled to receive an information notice and on this basis may
appeal the board's `default decision' under part 6 of the Act.
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Clause 54 enables the board to extend the timeframes specified in clause
53 because of the complexity of the issues that need to be considered in
deciding the application. In order to ensure that the applicant is aware of the
status of his or her application, the board is required to give applicant written
notice that the timeframe for deciding the application has been extended.
Subdivision 5--Information in certificates of general registration
Clause 55 requires a certificate of general registration to be in the
approved form, which must include at least the information specified in
subclause 55(2). There is nothing to prevent the inclusion of additional
information in the approved form.
Subdivision 6--Period of general registration
Clause 56 specifies the period of general registration as a prescribed
period of up to three years (the `general registration period'). It is intended
all general registrants will be registered for a term that expires on the same
day, for example, a 12 month period ending on 31 December. Subclause
56(2) specifies what happens when a person is registered part way through
a general registration period.
Subdivision 7--Conditions of general registration
Consistent with the objects of the Act, the board has power to impose
conditions on a person's registration in certain circumstances, namely:
· at the time of initial general registration under part 3, division 2
(see clause 57, discussed below)
· at the time of initial specialist registration under part 3, division 8
(see clause 111, discussed below)
· at the time of initial special purpose registration under part 3,
division 9 (see clause 125, discussed below)
· on renewal or restoration of general registration under part 3,
divisions 4 & 5 (see clauses 74 & 76, discussed below)
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· on renewal or restoration of specialist registration under part 3,
division 8 (see clauses 74 & 76, as applied by clause 113,
discussed below)
· on renewal of special purpose registration under part 3, division 9
(see clause 129, discussed below)
· on review of conditions on general registration under part 3,
division 7 (see clause 94, discussed below); and
· on review of conditions on specialist registration under part 3,
division 8 (see clause 94, as applied by clause 113, discussed
below).
It is important to note that the board can not exercise its power to impose
conditions on a person's registration under this Act, at any other time.
Clause 57 gives the board power to decide to register an applicant for
general registration under clause 51, subject to conditions the board
considers are necessary or desirable for the applicant to practise competently
and safely. In practice, the board will make this determination by
considering the extent to which the applicant is eligible for registration. It is
intended that the board will exercise its power under this clause proactively
to facilitate practitioners practising safely in accordance with their abilities,
rather than automatically refuse to register applicants who are not fully
eligible for registration, for example, because of health problems, language
skills or previous convictions. It is anticipated that most conditions
imposed under this clause will address fitness to practise issues under
clause 45 (discussed above). However, it should be noted that there is
nothing to prevent the board from imposing conditions to address concerns
about the extent to which the applicant is qualified for registration under
clause 44, discussed above, (for example, to require the person to undertake
a refresher course relating to a specific aspect of practice).
Subclauses 57(2)--(4) specify the action the board must take when it
decides to register an applicant on conditions. The board must:
· also decide the review period applying to the conditions. The
term `review period' is defined in the dictionary in Schedule 4 of
the Act as a period of up to three years during which the registrant
can not apply for a review of the conditions under part 3, division
7
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· if the conditions imposed are `health conditions', decide whether
details of the conditions should be recorded in the register. The
basis for the board's decision in this regard is whether it is in the
public interest for the details of the conditions to appear in the
register
· give the applicant an information notice containing the
information specified in subparagraphs (a)--(e) of the definition
of this term in the dictionary in Schedule 4 of the Act, which
information includes details of the conditions imposed. Having
regard to the operation of clause 198 (discussed below), the
board's decision to register a person on conditions is a decision
that may be appealed under part 6 of the Act.
It should also be noted that, subject to the operation of subclauses 57(3)
& (4), the board is required under subparagraph 215(3)(i) to enter details of
the conditions imposed on a person's registration under this clause, on the
register.
Clause 58 provides that it is an offence for a registrant to contravene a
condition, including a recency of practice condition, imposed on his or her
registration under this Act.
Division 3--Provisional general registration
Division 3 makes provision for provisional general registration. This
form of general registration is to be used to `fast-track' straight forward
applications for general registration. Provisional general registration can not
be renewed and may not be granted on conditions. The terms `provisional
general registration' and `provisional general registrant' are defined in the
dictionary in Schedule 4 of the Act.
Clause 59 defines `authorised person' for the purpose of part 3, division
3. Subclause 59(2) clarifies that the board may limit the authority given to a
person mentioned in subclause 59(1) to register persons as provisional
general registrants.
Clause 60 specifies who may exercise the power to provisionally register
and the circumstances in which the power may be exercised.
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The power to provisionally register an applicant for general registration
may be exercised where the applicant appears to be eligible for general
registration without conditions but the board can not consider and decide the
application immediately because:
· the next board meeting is not scheduled for some time;
· the applicant is unable to provide further evidence of his or her
qualifications, for example, the applicant may have provided a
photocopy of his or her academic record when the board requires
a certified copy; or
· at the time of the application, the applicant is entitled to, but has
not been conferred or awarded the qualification, for example, new
graduates who complete their studies in December but do not
officially graduate until the following March.
The power to provisionally register an applicant for general registration
may be exercised by the board or an authorised person. Having regard to
the definition of this term in clause 59 (discussed above), the board may
authorise the Executive Officer, a member of staff of the Office of Health
Practitioner Registration Boards or a board member to be an `authorised
person'. It is important to note that clause 14 does not apply to the exercise
of this power by an authorised person, as there is no delegation to the
authorised person. When the board or an authorised person decides to
provisionally register a person, the board or authorised person, as the case
may be, must issue a certificate of provisional general registration to the
person. Clause 63 specifies the form and contents of a certificate of
provisional general registration (discussed below).
It is important to note that a person may not be provisionally registered
on conditions.
Clause 61 applies when an authorised person decides to provisionally
register an applicant for general registration. The authorised person must
report to the board (either orally or in writing) for the purpose of enabling
the board to decide whether the authorised person should have decided to
provisionally register the applicant under clause 60. This is the basis on
which the board must decide whether to confirm or cancel the person's
provisional general registration. If the board decides to cancel the
provisional general registration, the board is required to give notice of its
decision to the applicant.
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Clause 62 specifies what action the board must take when it decides to
cancel the person's provisional general registration under clause 61. The
board must provide the person with a notice of cancellation which sets out
the reason for the board's decision. It is important to note that the person is
not entitled to an information notice under this clause, which means the
board's decision to cancel provisional general registration can not be
appealed. Notwithstanding the board's decision to cancel the person's
provisional general registration, the board is still obliged to consider the
person's application for general registration under part 3, division 2.
Clause 63 requires a certificate of provisional general registration to be in
the approved form, which must include at least the information specified in
subclause 63(2). There is nothing to prevent the inclusion of additional
information in the approved form. The term `certificate of provisional
general registration' is defined in the dictionary in Schedule 4 of the Act.
Clause 64 specifies the period of provisional general registration as a
period of up to six months decided by the authorised person or the board
when deciding to provisionally register the person.
Clause 65 applies when the board decides to register a provisional
general registrant as a general registrant under part 3, division 2. In these
circumstances, the registrant's provisional general registration is cancelled
and his or her general registration is `back-dated' to the day the person was
provisionally registered under clause 60.
Clause 66 applies when the board decides to refuse to register a
provisional general registrant as a general registrant under part 3, division 2.
In these circumstances, the registrant's provisional general registration is
automatically cancelled.
Clause 67 applies when the period of a person's provisional general
registration comes to an end after the timeframes specified in clauses 53 and
54 (discussed above) have expired and the board has not made a decision
about the person's application for general registration. In these
circumstances, the board is taken to have decided to refuse to register the
person as a general registrant under part 3, division 2, on the expiry of the
person's provisional general registration. Having regard to the operation of
subclause 52(2), the person is entitled to receive an information notice and
on this basis may appeal the board's `default decision' under part 6 of the
Act.
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Division 4--Renewal of general registrations
Division 4 requires general registrants to apply for renewal of their
registration and gives the board power to assess renewal applications, where
recency of practice requirements are prescribed under clause 68 (discussed
below). This is intended to ensure the ongoing competence of registrants,
who will no longer be automatically entitled to re-registration upon payment
of an annual licence fee.
It is important to note that, having regard to the definition of `general
registrant' (which expressly excludes provisional general registrants), this
division does not apply to provisional general registrations.
Subdivision 1--Preliminary
Clause 68 defines `recency of practice requirements' for the purpose of
part 3, division 4. These are prescribed requirements, which if satisfied,
demonstrate that a registrant has maintained an adequate connection with the
profession. Subclause 68(2) provides examples of the range of activities
that may constitute `practice' for recency of practice purposes, including
activities other than actual practice hours, which the board considers also
keep registrants sufficiently up to date.
Subdivision 2--Applications for renewal of general registrations
Clause 69 requires the board to give registrants at least 60 days notice of
the expiry of their general registration. General registrants may apply for
renewal of their registration within this period (see clause 70, discussed
below).
Clause 70 sets out the procedural requirements for making an application
for renewal of general registration. Subclause 70(5) requires applicants to
state:
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Dental Practitioners Registration
· whether they suffer from any ongoing medical condition that
adversely affects their ability to practise (all that is required is a
yes/no response). The term `medical condition' is defined in the
dictionary in Schedule 4 of the Act. It is important note that the
board can only deal with this information as permitted under the
Health Practitioners (Professional Standards) Act 1999; and
· if there are recency of practice requirements relevant to the
applicant --the extent to which the applicant satisfies recency of
practice requirements for the profession.
Clause 71 continues the applicant's existing general registration in force
until the board makes a decision on the applicant's renewal application
under clause 73 and takes action under clause 75 (both clauses discussed
below) or the application is withdrawn. This provision does not affect the
earlier suspension or cancellation of the registration under the legislative
scheme.
Subdivision 3--Decision on applications
Clause 72 gives the board power to:
· investigate the applicant, for example, by making reasonable
inquiries about the applicant;
· require the applicant to provide further information or
documentation; and
· require the applicant to undergo a written, oral or practical
examination to assess the applicant's ability to practise the
profession. It should be noted that there is nothing to prevent the
board from appointing an external body to set and administer the
examination on the board's behalf.
Clause 72 requires the board to give the applicant notice of the board's
intention to exercise the powers specified in subparagraphs 72(1)(b) & (c)
within a reasonable minimum period of 30 days. An applicant who fails to
comply with these requirements is taken to have withdrawn his or her
application.
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Clause 73 requires the board to consider an application that meets the
requirements specified in clause 70 (discussed above) and decide either to
renew, or refuse to renew, the applicant's general registration. Subclause
73(2) specifies that the extent to which the applicant satisfies recency of
practice requirements is the sole basis for the board's decision to renew, or
refuse to renew, the applicant's registration. It is important to note that the
board may address concerns about the extent to which a registrant satisfies
the recency of practice requirements, by imposing recency of practice
conditions on the registration under clause 74 (discussed below). Subclause
73(3) clarifies that, in the absence of relevant recency of practice
requirements, the board must decide to renew the applicant's registration.
Clause 74 gives the board power to decide to renew the applicant's
general registration under this division, subject to `recency of practice
conditions' the board considers will address the extent to which the
applicant does not satisfy the recency of practice requirements for the
profession. It is intended that the board will exercise its power under this
clause proactively to facilitate practitioners practising safely in accordance
with their abilities, rather than automatically refuse to renew the registration
of practitioners who have not satisfied relevant recency of practice
requirements. It is important to note the board's power to impose recency
of practice conditions under this clause is much narrower than the board's
power to impose conditions on initial general registration under clause 57.
Subclauses 73(3) & (4) specify what action the board must take when
making a decision to renew an applicant's registration on recency of practice
conditions:
Step 1: Before making the decision, the board must give the applicant an
opportunity to make a submission on the proposed recency of
practice conditions
Step 2: If the board then decides to renew the applicant's registration on
recency of practice conditions, the board must:
· also decide the review period applying to the conditions; and
· give the applicant an information notice containing the
information specified in subparagraphs (a)--(d) & (f) of the
definition of this term in the dictionary in Schedule 4 of the
Act, which information includes details of the recency of
practice conditions imposed. Having regard to the operation
of clause 198 (discussed below), the board's decision to
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renew a person's general registration on recency of practice
conditions is a decision that may be appealed under part 6 of
the Act.
Subclause 74(5) specifies when the board's decision to impose recency
of practice conditions takes effect.
Clause 75 sets out what action the board must take when it decides an
application under this division:
· if the board decides to renew the applicant's registration, it must
as soon as practicable issue a new certificate of general
registration to the applicant. It is anticipated that if the board
decides to renew the registration on recency of practice conditions,
the information notice required under clause 74 (discussed above)
will be issued at the same time as the new registration certificate.
Having regard to the operation of subclause 75(3), any conditions,
including recency of practice conditions, attaching to the
registration immediately before it is renewed under this section
continue to apply to the renewed registration. This includes
conditions imposed on the person's registration under the Health
Practitioners (Professional Standards) Act 1999 as well as
conditions attaching to the registration because of the operation of
subclause 250(3) (discussed below). It should also be noted that
the board is required under subparagraph 215(3)(i) to enter details
of the recency of practice conditions imposed on a person's
registration under clause 74, on the register; or
· if the board decides to refuse to renew the applicant's registration,
the board must give the applicant an information notice containing
the information specified in paragraphs (a)--(d) of the definition
of this term in the dictionary in Schedule 4 of the Act. Having
regard to the operation of clause 198 (discussed below), the
board's decision to refuse to renew an applicant's general
registration is a decision that may be appealed under part 6 of the
Act.
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Dental Practitioners Registration
Division 5--Restoration of general registrations
Division 5 enables a person whose general registration has expired, to
apply for restoration in limited circumstances. It is important to note,
having regard to the definition of `general registrant' (which expressly
excludes provisional general registrants), that this division does not apply to
provisional general registrations.
A person's general registration can only be restored under this division if
the person meets the requirements for renewal of registration under part 3,
division 4. In order to avoid unnecessary duplication of provisions, clause
76 `cross-applies' relevant provisions from part 3, division 4 for the
purpose of applying for restoration and restoring general registration. With
the exception of the matters expressly excluded under clause 76 and those
addressed in clauses 77--81 (discussed below), this means that:
· the process of applying for restoration is the same as the process
of applying for renewal;
· the board's powers for dealing with restoration applications are
the same as those for dealing with renewal applications;
· the board has the power to decide to restore a person's registration
on recency of practice conditions and details of those conditions
must be entered on the register; and
· the board's decisions to restore a person's registration on recency
of practice conditions or to refuse to restore a person's registration
are decisions that may be appealed under part 6 of this Act.
It is important to note the operation of clause 134 (discussed below),
which clarifies that when the board decides to restore a person's registration
under this division, the person is taken to be registered under part 3 of the
Act.
Clause 77 specifies the time frame within which a person may apply for
restoration ie within three months after the person's registration expired. A
person who seeks restoration outside of this three month period must
re-apply for registration under part 3, division 2.
Clause 78 sets out the procedural requirements for making an application
for restoration of general registration. Subclause 78(3) requires applicants
to state:
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Dental Practitioners Registration
· whether they suffer from any ongoing medical condition that
adversely affects their ability to practise (all that is required is a
yes/no response). As noted above in relation to clause 70, the
board can only deal with this information as permitted under the
Health Practitioners (Professional Standards) Act 1999; and
· if there are recency of practice requirements relevant to the
applicant --the extent to which the applicant satisfies recency of
practice requirements for the profession.
Clause 79 specifies what happens when a person's registration is
restored part way through a general registration period.
Clause 80 specifies that if the board decides to restore the person's
registration, any conditions, including recency of practice conditions,
attaching to the registration immediately before it expired continue to apply
to the restored registration. This includes conditions imposed on the
person's registration under the Health Practitioners (Professional
Standards) Act 1999 as well as conditions attaching to the registration as a
result of the operation of subclause 250(3) (discussed below).
Clause 81 specifies when recency of practice conditions imposed on a
restored registration, take effect.
Division 6--Cancellation of general registrations
Division 6 gives the board a very limited power to cancel a person's
general registration under this Act.
Clause 82 specifies that a person's general registration may be cancelled
under this division if the person was registered because of a materially false
or misleading representation or declaration, made at any time during an
application process under part 3, division 2, 4 or 5, including during an
inquiry conducted under those divisions.
Clauses 83--87 set out the procedure for cancelling a person's general
registration under this Act. In accordance with the principles of natural
justice, these clauses provide for the following show cause process to be
followed before the board takes action to cancel the registration in
circumstances where the board believes that the ground exists to cancel the
registration:
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Dental Practitioners Registration
· the board must issue the registrant with a written notice (a `show
cause notice') inviting the registrant to demonstrate why his or her
registration should not be cancelled. It is important to note the
operation of clause 114 (discussed below) in relation to a person
who is both a general registrant and a specialist registrant or
provisional specialist registrant;
· the board must consider all written representations made by the
registrant;
· if, after considering the registrant's response to the show cause
notice, the board no longer believes the ground exists to cancel the
registration, the board must take no further action. In these
circumstances the board must notify the registrant of its decision;
· the board may decide to cancel the registration if the registrant
does not respond to the show cause notice, or if after considering
the registrant's response, the board still believes the cancellation is
warranted. In these circumstances, the board must give the
registrant an information notice containing the information
specified in paragraphs (a)--(d) & (g) of the definition of this
term in the dictionary in Schedule 4 of the Act. Having regard to
the operation of clause 198 (discussed below), the board's
decision to cancel a person's general registration under this
division is a decision that may be appealed under part 6 of the
Act. Subclause 86(5) specifies when the board's decision to
cancel the person's registration takes effect. Clause 87 requires
the person to return his or her certificate of registration to the
board within 14 days after receiving the information notice. It is
an offence for the person not to comply with this obligation.
Division 7--Reviewing conditions of general registrations
Division 7 gives the board power to review conditions, including recency
of practice conditions, imposed on a person's general registration under this
Act. It is important to note that this division does not apply to conditions
imposed on a person's registration under the Health Practitioners
(Professional Standards) Act 1999.
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Dental Practitioners Registration
Subdivision 1--Review of conditions imposed by the board or District
Court
Clause 88 limits the conditions that may be reviewed under this division
to those imposed under this Act.
Clause 89 specifies how and when a registrant may start a review under
this division. The review process is started when the registrant applies to
the board for a review. Other than in the circumstances specified in clause
90 (discussed below), a registrant may not apply for a review during the
review period applying to the conditions on her or his registration or while
an appeal from the board's decision to impose the conditions is pending.
The basis for an application for review under this division is that the
registrant believes the conditions are no longer appropriate. Subclause 89(5)
requires the board to consider and decide (ie confirm, remove or change the
conditions) an application that meets the requirements specified in this
clause.
Clause 90 permits a review to be started during the review period if:
· the board reasonably believes that the conditions are no longer
appropriate (in practice, this may be because the registrant has
approached the board with a reasonable argument why the
conditions should no longer apply); and
· the board and the registrant agree in writing to an early review.
Clause 91 gives the board the same powers on review as it has for
deciding an application for general registration under clause 46 (discussed
above), namely the power to:
· investigate the registrant, for example, by making reasonable
inquiries about the applicant
· require the registrant to provide further information or
documentation; and
· require the registrant to undergo an examination (to assess the
applicant's ability to practise the profession) or a health
assessment (to assess the applicant's mental and physical capacity
to practise the profession).
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Dental Practitioners Registration
It is important to note that the board's powers under subparagraphs
91(1)(c) & (d) are solely for the purpose of assisting the board to determine
whether the conditions remain necessary or desirable for the registrant to
practise safely and competently (see clause 94, discussed below). In this
respect, the exercise of these powers on review is much narrower than the
exercise of the same powers when deciding an application for general
registration under part 3, division 2. Clause 91, read in conjunction with
subclauses 93(3) & (6), imposes similar timeframes and notice
requirements to those imposed on the exercise of the board's powers under
clause 46.
In order to avoid unnecessary duplication of provisions, clause 92
`cross-applies' clauses 47-50 for the purpose of a health assessment
conducted under subparagraph 91(1)(d).
Subclauses 93(1)--(3) apply to a registrant who applied for a review
under clause 89 and who fails to comply with the board's requirements
under clause 91. In these circumstances, the registrant is taken to have
withdrawn his or her application. Subclauses 93(4)--(6) apply to a
registrant whose conditions are being reviewed under clause 90 and who
fails to comply with the board's requirements under clause 91. In these
circumstances, the board is taken to have decided to confirm the conditions.
Clause 94 sets out:
· the range of decisions available to the board after reviewing the
registrant's conditions, namely to either confirm, remove or
change some or all of the conditions
· the basis for the board's decision, namely whether the conditions
remain necessary or desirable for the registrant to practise
competently and safely. It is important to note that if the board
decides to confirm or change the conditions, the board's decision
must be consistent with the reasons why the conditions were
imposed in the first instance. The board can not use this
opportunity to impose new conditions to address issues which are
unrelated to the reasons why the conditions being reviewed were
initially imposed. If new concerns about the registrant come to
light while the person is registered, these must be addressed under
the Health Practitioners (Professional Standards) Act 1999. The
review process under this division can not be used as an
alternative to the disciplinary or impairment processes under the
Health Practitioners (Professional Standards) Act 1999
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Dental Practitioners Registration
· what action the board must take when it makes a decision. The
board must give the registrant notice if it decides to remove the
conditions. If the board decides to confirm or change the
conditions, the board must:
· decide the review period applying to the confirmed or
changed conditions; and
· give the registrant an information notice containing the
information specified in subparagraphs (a)--(d) & (h)/(i) of
the definition of this term in the dictionary in Schedule 4 of
the Act. Having regard to the operation of clause 198
(discussed below), the board's decision to confirm or change
the conditions is a decision that may be appealed under part 6
of the Act.
It should be noted that clause 98 (discussed below) may also
apply if the board decides to change the conditions.
It should also be noted that, subject to the operation of clause 98
(discussed below), the board is required under subparagraph
215(3)(i) to enter details of the conditions imposed on a person's
registration under this clause on the register.
Clause 95 specifies when the board's decision under clause 94 takes
effect.
Clauses 96 & 97 set out the timeframes within which the board must
decide a review under clauses 89 & 90 respectively. It is important to note
that if the board fails to make a decision within these timeframes, the board
is taken to decided to remove the conditions.
Clause 98 applies if the board decides to change conditions that were
initially imposed because of the registrant's mental and physical health. In
these circumstances, the board must also decide whether details of the
changed conditions should be recorded in the register. The basis for the
board's decision in this regard is whether it is in the public interest for the
details of the changed conditions to appear in the register.
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Dental Practitioners Registration
Subdivision 2--Recording change, or removal, of conditions
Clause 99 applies if the board decides to change or remove the
registrant's conditions and take the action required under clause 94 or if the
registrant's conditions are removed because the board failed to make a
decision within the timeframes specified in clauses 96 or 97 (discussed
above). Clause 99 requires the registrant to return his or her certificate of
registration to the board, so that the certificate can be amended or reissued to
reflect the board's decision or `default' decision (as the case may be). It is
an offence for the registrant to fail to comply with this requirement.
Division 8--Specialist Registration
This division provides for registration in a prescribed specialty. This
category of registration can be granted with or without conditions.
Conditions imposed on a specialist registration can be reviewed under part
3, division 7, as applied by clause 113. A specialist registration can be
renewed under part 3, division 4 and restored under part 3, division 5, as
applied by clause 113. The terms `specialist registration' and `specialty' are
defined in the dictionary in Schedule 4 of the Act.
Subdivision 1--Applications
Clause 100 sets out the procedural requirements for making an
application for specialist registration.
Subdivision 2--Eligibility for specialist registration
Clause 101 sets out the criteria which the board must consider when
deciding whether an applicant is eligible for specialist registration in a
specialty. It is important to note that only persons who are general
registrants may apply for specialist registration. The qualifications required
for specialist registration are detailed in clause 102 (discussed below). It
should be noted that there is no requirement for applicants for specialist
registration to demonstrate fitness to practise (as is the case for general
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Dental Practitioners Registration
registration). This is because the applicant's fitness to practise will have
already been taken into account in the context of his or her general
registration. Subclause 101(2) clarifies that the board may address concerns
about an applicant's eligibility for specialist registration by imposing
conditions on the registration under clause 111 (discussed below).
Clause 102 specifies the circumstances in which an applicant is qualified
for specialist registration in a specialty, as required under subparagraph
101(1)(b). It is intended that the qualifications prescribed under
subparagraph 102(1)(a) will be current postgraduate Australian and New
Zealand qualifications in the specialty obtained by coursework after at least
three years full-time study (or an equivalent period of accelerated or
part-time study).
Subparagraph 102(1)(b) applies to applicants who apply for specialist
registration in a specialty on the basis of a qualification in the specialty that
is not prescribed under subparagraph 102(1)(a). It should be noted that
subparagraph 102(1)(b) operates in conjunction with subclause 102(2),
which sets out matters the board may take into account when deciding
whether an applicant is qualified under subparagraph 102(1)(b). The board
may obtain advice from an external body for this purpose. In this regard, it
is intended that the board will work collaboratively with any nationally
recognised bodies which have the function of accrediting, assessing and/or
recognising qualifications in the specialty.
Subparagraph 102(1)(c) applies to applicants who are not qualified under
subparagraphs 102(1)(a) or (b), for example, applicants who have a
qualification in the specialty that does not meet the requirements under
subparagraphs 102(1)(a) or (b) but who have significant practical experience
in the specialty. It should be noted that the board is not obliged to set and
administer the qualifying examination itself.
Subdivision 3--Inquiries into applications
Clause 103 gives the board power to:
· investigate the applicant, for example, by making reasonable
inquiries about the applicant;
· require the applicant to provide further information or
documentation; or
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Dental Practitioners Registration
· require the applicant to undergo a written, oral or practical
examination to assess the applicant's ability to practise the
specialty. It should be noted that there is nothing to prevent the
board from appointing an external body to set and administer the
examination on the board's behalf.
Clause 103 requires the board to give the applicant notice of the board's
intention to exercise the powers specified in subparagraphs 103(1)(b)&(c)
within a reasonable minimum period of 30 days. An applicant who fails to
comply with these requirements is taken to have withdrawn his or her
application.
Subdivision 4--Decision on applications
Clause 104 requires the board to consider an application that meets the
requirements specified in clause 100 (discussed above) and decide either to
register, or refuse to register, the applicant as a specialist registrant in the
specialty.
Clause 105 sets out what action the board must take when it makes a
decision under clause 104 (discussed above):
· if the board decides to register the applicant, it must as soon as
practicable issue an appropriate certificate of registration to the
applicant.
It is important to note the operation of clause 134 (discussed
below), which clarifies that when the board decides to register an
applicant under this division, the person is taken to be registered
under part 3. It is also important to note the operation of clause
109 (discussed below) which clarifies when the applicant's
registration takes effect.
The terms `specialist registrant' and `certificate of specialist
registration' are defined in the dictionary in Schedule 4 of the Act.
Clause 108 specifies the form and contents of a specialist
registration certificate, which include the specialty in which the
person is registered (discussed below); or
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Dental Practitioners Registration
· if the board decides to refuse to register the applicant, the board
must give the applicant an information notice containing the
information specified in paragraphs (a)--(d) of the definition of
`information notice' (which is located in the dictionary in
Schedule 4 of the Bill). An information notice is a written notice
which details the board's decision and the reasons for it and
provides details regarding when and how the applicant may
appeal the board's decision. Having regard to the operation of
clause 198 (discussed below), the board's decision to refuse to
register an applicant for specialist registration is a decision that
may be appealed under part 6 of the Act.
Clause 106 sets out the timeframes within which the board must decide
an application. These timeframes may be extended under clause 107
(discussed below). It is important to note that if the board fails to decide the
application within these timeframes (and the applicant is not provisionally
registered under part 3, division 3, as applied by clause 113), the board is
taken to have decided to refuse to register the applicant. Having regard to
the operation of subclause 105(2), the person is entitled to receive an
information notice and on this basis may appeal the board's `default
decision' under part 6 of the Act.
Clause 107 enables the board to extend the timeframes specified in clause
106 because of the complexity of the issues that need to be considered in
deciding the application. In order to ensure that the applicant is aware of the
status of his or her application, the board is required to give the applicant
written notice that the timeframe for deciding the application has been
extended.
Subdivision 5--Information in certificates of specialist registration
Clause 108 requires a certificate of specialist registration to be in the
approved form, which must include at least the information specified in
subclause 108(2). There is nothing to prevent the inclusion of additional
information in the approved form.
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Dental Practitioners Registration
Subdivision 6--Period of specialist registration
Clause 109 specifies the period of specialist registration as a prescribed
period of up to three years (the `specialist registration period'). It is
intended all specialist registrants will be registered for a term that expires on
the same day, for example, a 12 month period ending on 31 December.
Subclause 109(2) specifies what happens when a person is registered part
way through a specialist registration period.
Subdivision 7--Conditions of specialist registration
As discussed above in relation to the board's power to impose conditions
on a person's registration, the board has power to impose conditions on a
person's specialist registration in certain circumstances.
However, it is important to note that clause 110 specifies that a person's
specialist registration is automatically subject to the same conditions, other
than recency of practice conditions, attaching to his or her general
registration. This ensures that, for example, any fitness to practise issues
are appropriately managed in respect of the person's practice of the
specialty. It is important to note that these `automatically applied'
conditions can not be reviewed under part 3, division 7, as applied by clause
113. This is because the conditions are reviewed in the context of the
person's general registration. Having regard to the operation of clause 116
(discussed below), the board's decision on review of those conditions
automatically applies in respect of the person's specialist registration.
It should also be noted that the board is required under subparagraph
215(3)(i) to enter details of the conditions automatically applied to a
person's registration under this clause, on the register.
Clause 111 gives the board power to decide to register an applicant for
specialist registration under clause 105, subject to conditions the board
considers are necessary or desirable for the applicant to practise the specialty
competently and safely. In practice, the board will make this determination
by considering the extent to which the applicant is eligible for specialist
registration. It is intended that the board will exercise its power under this
clause proactively to facilitate practitioners practising safely in accordance
with their abilities, rather than automatically refuse to register applicants
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Dental Practitioners Registration
who are not fully eligible for specialist registration. It is important to note
that clause 110 (discussed above) does not limit the board's power to
impose conditions on specialist registration.
Subclause 111(2) specifies the action the board must take when it decides
to register an applicant on conditions. The board must:
· also decide the review period applying to the conditions; and
· give the applicant an information notice containing the
information specified in subparagraphs (a)--(e) of the definition
of this term in the dictionary in Schedule 4 of the Act, which
information includes details of the conditions imposed. Having
regard to the operation of clause 198 (discussed below), the
board's decision to register a person on conditions is a decision
that may be appealed under part 6 of the Act.
It should also be noted that the board is required under subparagraph
215(3)(i) to enter details of the conditions imposed on a person's
registration under this clause, on the register.
Clause 112 makes it an offence for a specialist registrant to contravene a
condition, including a recency of practice condition, imposed on his or her
registration under this Act.
Subdivision 8--Application of certain provisions
This subdivision enables:
· applicants for specialist registration to be provisionally registered
· specialist registration to be renewed, restored or cancelled; and
· conditions imposed on specialist registration under clause 111
(discussed above) to be reviewed in much the same way as these
processes apply to general registration.
In order to avoid unnecessary duplication of provisions, clause 113
`cross-applies' relevant provisions from part 3, divisions 3--7 for these
purposes. This means that:
· an authorised person or the board has the power to provisionally
register an applicant for specialist registration
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Dental Practitioners Registration
· the requirements for and the process of applying for renewal or
restoration of specialist registration are the same as the
requirement for and the process of applying for renewal or
restoration of general registration
· the board's powers for dealing with applications to renew or
restore specialist registration are the same as those for dealing
with applications to renew or restore general registration
· the board has the power to decide to renew or restore a person's
specialist registration on recency of practice conditions and must
enter details of these conditions on the register
· the board's decisions to renew or restore a person's specialist
registration on recency of practice conditions or to refuse to renew
or restore a person's specialist registration are decisions that may
be appealed under part 6 of this Act
· any conditions attaching to the person's specialist registration
immediately before renewal or before it expired, continue to apply
to the renewed or restored registration
· the board may cancel specialist registration on the same ground
and by the same show cause process that applies to general
registration
· the board's decision to cancel specialist registration is a decision
that may be appealed under part 6 of the Act
· conditions imposed on specialist registration (other than those
automatically applied under clause 110) can be reviewed in the
same way as conditions on general registration
· with the exception of the power to require the registrant to
undergo a health assessment, the board has the same powers and
obligations on review of conditions on specialist registration as it
does on review of conditions on general registration
· the board's decision to change or confirm conditions on specialist
registration is a decision that may be appealed under part 6 of the
Act
Subclause 113(3) requires a certificate of provisional specialist
registration to include details of the specialty in which the person is
provisionally registered.
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Dental Practitioners Registration
The terms `provisional specialist registration', `provisional specialist
registrant' and `certificate of provisional specialist registration' are defined
in the dictionary in Schedule 4 of the Act.
Subdivision 9--Miscellaneous
Clause 114 specifies that when the board gives a specialist registrant or a
provisional specialist registrant a show cause notice in relation to the
registrant's general registration, the show cause notice must also advise the
registrant that if his or her general registration is cancelled under part 3,
division 6 of the Act, his or her specialist registration or provisional
specialist registration ends. This requirement reflects the operation of clause
115, discussed below.
Clause 115 provides that if a specialist registrant's or provisional
specialist registrant's general registration ends under this Act, for example,
because it is cancelled or it is not renewed or restored, his or her specialist
registration or provisional specialist registration automatically ends on the
same day. This is because general registration is a requirement for specialist
registration and provisional specialist registration and if the registrant `loses'
his or her general registration, the registrant no longer meets the eligibility
requirements for specialist registration or provisional specialist registration.
In these circumstances, the registrant has an obligation to return his or her
certificate of specialist registration or provisional specialist registration to the
board. (When the registrant's general registration is cancelled, the board
must include a direction to this effect in the information notice it is required
to give to the registrant under part 3, division 6 of the Act).
Clause 116 provides that if the board changes or removes conditions
(other than recency of practice conditions) on a specialist registrant's general
registration, the same conditions on the registrant's specialist registration (ie
those which were automatically applied to the registrant's specialist
registration under clause 110, discussed above) are automatically changed in
the same way or removed. In these circumstances, the registrant has an
obligation to return his or her certificate of specialist registration to the
board, to be amended or replaced (the board must include a direction to this
effect in the information notice it is required to give to the registrant under
part 3, division 7 of the Act).
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Dental Practitioners Registration
Clause 117 specifies that when making a decision to restore a person's
specialist registration, the board must only decide to restore the registration
if the person's general registration is current, for example, the board can not
decide to restore a person's specialist registration if the person's general
registration has also lapsed but not been restored. The operation of this
clause reflects clause 101 which specifies that general registration is a
pre-requisite for specialist registration.
Clause 118 applies if conditions relating to mental or physical health are
imposed on a specialist registrant's general registration under this Act, for
example under clause 57 (discussed above) or those conditions are changed
under this Act, for example under clause 94 (discussed above). In these
circumstances, the decision about whether or not details of those conditions
are recorded in the register applies in the same way to the same conditions
which were automatically applied to the registrant's specialist registration
under clause 110, discussed above.
Division 9--Special purpose registrations
Division 9 makes provision for the category of special purpose
registration. This is a limited form of registration designed to extend the
privileges and obligations of registration to persons undertaking a specified
range of `special activities'. For this reason, special purpose registration is
regarded as a `privilege' registration category. Consistent with this
approach, special purpose registration can be renewed but can not be
restored and can be granted with or without conditions, but those conditions
can not be reviewed. The terms `special purpose registration' and `special
purpose registrant' are defined in the dictionary in Schedule 4 of the Act.
Subdivision 1--Applications for special purpose registration
Clause 119 specifies that a person may obtain special purpose
registration for the limited purpose of postgraduate study or training;
teaching; research and/or giving clinical demonstrations in the profession.
This means that a special purpose registrant has the same privileges (for
example, the right to use a restricted title or to undertake a restricted practice)
and the same obligations (for example, a special purpose registrant is
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Dental Practitioners Registration
subject to the Health Practitioners (Professional Standards) Act 1999) as a
general registrant under the legislative scheme, within the limited scope of
the special activity or activities to which his or her registration under this
division relates.
It is important to note that clause 119 is not intended to prevent a person
from undertaking a special activity without registration under this division.
Rather, it is intended to extend the benefits and obligations of registration to
a person in circumstances where, in the course of undertaking a special
activity, the person would otherwise contravene the Act, for example, by
using a restricted title or undertaking a restricted practice.
The process for applying for and obtaining special purpose registration is
closely modelled on the general registration processes under part 3, division
2. In order to avoid unnecessary duplication of provisions, clause 120
`cross-applies' relevant provisions from part 3, divisions 2 & 3 for the
purpose of applying for special purpose registration and registering a person
as a special purpose registrant under this division. With the exception of the
matters addressed in clauses 120--126 (which deal with eligibility and
period of special purpose registration and the imposition of conditions,
discussed below), this means that:
· the process of applying for special purpose registration is the
same as the process of applying for general registration;
· the board's powers for dealing with applications for special
purpose registration are the same as those for dealing with
applications for general registration;
· an authorised person or the board has the power to provisionally
register an applicant for special purpose registration;
· the process and timeframes for deciding an application for special
purpose registration and registering a special purpose registrant
are the same as those for deciding an application for general
registration and registering a general registrant; and
· the board's decision to refuse to register an applicant for special
purpose registration is a decision that may be appealed under part
6 of this Act.
The terms `provisional special purpose registration' and `provisional
special purpose registrant' are defined in the dictionary in Schedule 4 of the
Act.
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Dental Practitioners Registration
Subclause 120(2) requires a certificate of special purpose registration or
provisional special purpose registration to include additional details about
the special activity for which the registrant is registered, for example, to
teach the profession at a specified educational institution for a specified
period. Also, if the special activity involves the practice of a specialty, the
certificate must include details of the specialty to be practised. The terms
`certificate of special purpose registration' and `certificate of provisional
special purpose registration' are defined in the dictionary in Schedule 4 of
the Act.
Clause 121 sets out the criteria which the board must consider when
deciding whether an applicant is eligible for special purpose registration.
The criteria are specified in detail in clauses 122 and 123 respectively
(discussed below).
Clause 122 provides that an applicant for special purpose registration
meets the eligibility requirement specified under subparagraph 121(a) if the
applicant has a qualification in the profession that is recognised by the
board. Subclause 122(2) lists a range of matters the board may take into
account when deciding whether to recognise an applicant's qualification.
The board may obtain advice from an external body for this purpose. In
this regard, it is intended that the board will work collaboratively with any
nationally or internationally recognised bodies which have the function of
accrediting, assessing and/or recognising local and/or foreign qualifications
in the profession.
Clause 123 sets out the matters the board may take into account when
considering whether an applicant is a suitable person to be a special purpose
registrant, as required under subclause 121(b). These include whether:
· the applicant has been convicted of an indictable offence or an
offence against health practitioner legislation in any jurisdiction;
and
· the applicant's registration in another jurisdiction has been
affected in any way (for example, by the imposition of
conditions) and the reason why it has been affected.
Clause 124 specifies the period of special purpose registration as a period
of up to one year decided by the board when deciding to register the
applicant as a special purpose registrant.
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Dental Practitioners Registration
Clause 125 gives the board power to decide to register an applicant for
special purpose registration under this division, subject to conditions the
board considers are necessary or desirable for the applicant to competently
and safely undertake the special activity to which the application relates. In
practice, the board will make this determination by considering the extent to
which the applicant is eligible for registration. As noted in relation to clause
57 (discussed above) it is intended that the board will exercise its power
under this clause proactively to facilitate practitioners practising safely in
accordance with their abilities, rather than automatically refuse to register
applicants who are not fully eligible for registration.
Subclause 125(2) specifies what action the board must take when it
decides to register an applicant under this division on conditions. The board
must give the person an information notice containing the information
specified in subparagraphs (a)--(d) of the definition of this term in the
dictionary in Schedule 4 of the Act, which information includes details of
the conditions imposed. Having regard to the operation of clause 198
(discussed below), the board's decision to register a person as a special
purpose registrant on conditions is a decision that may be appealed under
part 6 of the Act.
It is important to note that conditions imposed on a person's special
purpose registration can not be reviewed under part 3, division 7. Instead
the board has the power to remove conditions imposed under this clause at
any time (see clause 133, discussed below). In addition, conditions
attaching to a person's special purpose registration immediately before it is
renewed under part 3, division 9, subdivision 2 do not continue to apply to
the renewed registration (see clause 129, discussed below).
It should also be noted that the board is required under subparagraph
215(3)(i) to enter details of the conditions imposed on a person's special
purpose registration under this clause, on the register.
Clause 126 provides that it is an offence for a special purpose registrant
to contravene a condition imposed on his or her registration under this Act.
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Dental Practitioners Registration
Subdivision 2--Renewal of special purpose registrations
The requirement to apply for renewal of special purpose registration and
the process of applying for and obtaining renewal are very closely modelled
on the requirements of part 3, division 4 that apply to general registration.
In order to avoid unnecessary duplication of provisions, clause 127
`cross-applies' relevant provisions from part 3, division 4, subdivisions 2 &
3 for the purpose of applying for renewal and renewing special purpose
registration. With the exception of the requirement to demonstrate recency
of practice and the power to impose recency of practice conditions, this
means that:
· the process of applying for renewal of special purpose registration
is the same as the process of applying for renewal of general
registration;
· the board's powers for dealing with applications to renew special
purpose registration are the same as those for dealing with
applications to renew general registration; and
· the board's decision to refuse to renew an applicant's special
purpose registration is a decision that may be appealed under part
6 of this Act.
The criteria for renewal of special purpose registration differ from those
for renewing general registration, in that recency of practice requirements do
not apply. Clause 128 specifies that the basis for the board's decision to
renew, or refuse to renew, a person's special purpose registration is whether
the person continues to be a suitable person for special purpose registration.
This means that the board may consider the matters set out in clause 123
(discussed above) when deciding a renewal application under this division.
Clause 129 gives the board power to decide to renew a person's special
purpose registration on conditions the board considers are necessary or
desirable for the person to competently and safely undertake the special
activity to which the registration relates. The board's power under this
clause is the same as under clause 125 (discussed above).
Subclause 129(2) specifies what action the board must take when it
decides to renew a person's special purpose registration on conditions. The
board must give the person an information notice containing the information
specified in subparagraphs (a)--(d) of the definition of this term in the
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Dental Practitioners Registration
dictionary in Schedule 4 of the Act, which information includes details of
the conditions imposed. Having regard to the operation of clause 198
(discussed below), the board's decision to renew a person's special purpose
registration on conditions is a decision that may be appealed under part 6 of
the Act.
It is important to note that conditions imposed on the renewal of a
person's special purpose registration can not be reviewed under part 3,
division 7. Instead the board has the power to remove conditions imposed
under this clause at any time (see clause 133, discussed below). In addition,
subclause 129(3) clarifies that any conditions attaching to the person's
registration immediately before renewal, do not continue to apply to the
renewed registration.
It should also be noted that the board is required under subparagraph
215(3)(i) to enter details of the conditions imposed on a person's
registration under this clause, on the register.
Clause 130 specifies the period of special purpose registration as a period
of up to one year decided by the board when deciding to renew a person's
special purpose registration.
It should be noted that division 9 does not give the board power to restore
special purpose registration.
Subdivision 3--Cancellation of special purpose registrations
Subdivision 3 gives the board power to cancel a special purpose
registration. The process of cancelling a special purpose registration mirrors
the process for cancelling a general registration under part 3, division 6. In
order to avoid unnecessary duplication of provisions, clause 131
`cross-applies' relevant provisions for the purpose of cancelling special
purpose registration. With the exception of grounds for cancellation, this
means that:
· the same show cause process applies; and
· the board's decision to cancel special purpose registration is a
decision that may be appealed under part 6 of the Act.
Clause 132 establishes grounds for cancelling a special purpose
registration, namely the registrant:
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Dental Practitioners Registration
· practised beyond the scope of the special activity or activities for
which he or she obtained registration, for example, the registrant
obtained employment in the profession to supplement his or her
income while undertaking postgraduate training
· has been convicted of an indictable offence or an offence against
health practitioner legislation
· contravened a condition of her or his registration; or
· was registered because of a materially false or misleading
representation or declaration (this is the same as the ground for
cancelling a general registration under part 3, division 6).
Subdivision 4--Removal of conditions
Clause 133 requires the board to decide to remove conditions imposed
on a person's special purpose registration under this Act if it reasonably
believes the conditions are no longer appropriate (in practice, this may be
because the registrant has approached the board with a reasonable argument
why the conditions should no longer apply). It is important to note that the
board can not exercise this power in respect of conditions imposed on the
person's registration under the Health Practitioners (Professional
Standards) Act 1999. The board must give the registrant notice of its
decision to remove the conditions. Subclause 133(6) specifies when the
board's decision takes effect. Subclauses 133(4) & (5) require the registrant
to return his or her certificate of registration to the board, so that the
certificate can be amended or reissued to reflect the board's decision. It is
an offence for the registrant to fail to comply with this requirement.
Division 10--General provisions about registrations
Clause 134 clarifies that if under this Act, an entity (ie the board or a
court deciding an appeal) decides to register a person or to restore a person's
registration, the person is taken to be registered under part 3 of this Act.
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Dental Practitioners Registration
Clause 135 enables a registrant to voluntarily surrender his or her
registration by giving written notice to the board. It is an offence for the
registrant to fail to return his or her registration certificate within 14 days
after the surrender takes effect.
The terms `certificate of registration' and `notice' are defined in the
dictionary in Schedule 4 of the Act.
Clause 136 gives the board power to grant or refuse to grant a
registrant's application for the replacement of a lost, stolen, destroyed or
damaged certificate of registration. If the board grants the application, the
registrant is entitled to receive a replacement certificate, upon payment of the
prescribed fee to the board. Having regard to the operation of subclause
136(5) and clause 198, the board's decision to refuse to grant the application
is a decision that may be appealed under part 6 of the Act.
Clause 137 enables a registrant to obtain a certified copy of the
registrant's certificate of registration, upon payment of the prescribed fee to
the board. The term `certified copy' is defined in the dictionary in Schedule
4 of the Act.
Clause 138 makes it an offence for a registrant to fail to advise the board
(either orally or in writing) of a change in the registrant's circumstances that
are prescribed under a regulation. The registrant must advise the board
within 21 days of the change occurring.
Clause 139 applies when a person's general, specialist or special purpose
registration is affected under this Act either by cancellation, the imposition
of conditions or removal of those conditions. In these circumstances the
board must notify all Australian and New Zealand regulatory authorities
with which the board knows the person is registered, of the event. This
provision also gives the board discretion to notify other entities, specified in
subclause 139(3), of these events. However, the board may only exercise
this discretion if it believes that the entity needs to know about the event and
that notifying the entity will assist in achieving the objectives of this Act.
The terms `interstate regulatory authority' and `foreign regulatory authority'
are defined in the dictionary in Schedule 4 of the Act. The terms `impose'
and `State regulatory authorities' are defined in subclause 139(6).
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PART 4--OBLIGATIONS OF REGISTRANTS AND
OTHER PERSONS
The term `professional service', which is used throughout part 4, is
defined in the dictionary in Schedule 4 of the Act to mean a dental service,
including a dental specialist service.
Division 1--Restricted titles and holding out
Clause 140 is one of the key offence provisions in the Bill. The objective
of this clause is to protect health consumers by enabling them to distinguish
between (competent and safe) registrants and other persons who are not
registered under this Act. It is necessary to extend this protection beyond a
person claiming to be registered under this Act (which is addressed by
clause 143, discussed below), as health consumers will associate certain
titles, names, initials etc (either directly or indirectly) with registrants. This
extra protection is particularly warranted as health service providers may not
hold themselves out as being registrants, but are more likely to use other
names, descriptions etc in advertising or other means of communicating
their services to health consumers.
This policy objective is firstly achieved, in subclause 140(1), by
restricting the taking or use of a restricted title to registrants. (The term
`restricted title' is defined in the dictionary in Schedule 4 of the Act as a title
that consists of, or includes, the words `dentist', `dental practitioner', `dental
surgeon' or `surgeon dentist'). The concept of a person taking or using a
title is generally understood to mean the person adopts or uses a descriptive
or distinctive name or designation, especially where the name or designation
belongs to a person by right of attaining some office, qualification, status or
authorisation. Subclause 140(1) provides examples of persons taking or
using a restricted title. It should be noted that it is possible for a corporation
to take or use a restricted title (as provided in the examples), however, a
corporation can only lawfully take or use a restricted title if it came within
the exemption provided in subclause 140(2). A person may also be held to
be taking or using a restricted title if the person stated--"I am a dentist".
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Dental Practitioners Registration
Subclause 140(2) allows persons, who are not registrants, to use a
restricted title in limited circumstances. This provision essentially allows a
person who has a business that employs, or otherwise engages, registrants
to provide dental services to use `dentist', `dental practitioner', `dental
surgeon' or `surgeon dentist' in its business name. (The term `business
name' is broadly defined in the dictionary in Schedule 4 of the Act to mean
a name or style under which a business is carried on). This provision
should be read in conjunction with subclause 140(4) (discussed below).
Subclause 140(3) also provides a limited exemption to the offence under
subclause 140(1). This provision allows a person undergoing study or
training to obtain a qualification for registration to, for example, wear a
`student dentist' badge. It should be noted that this exception only applies
when the person takes or uses the restricted title while actually undertaking
the study or training.
Subclause 140(4) is a corollary to subclause 140(1) and applies, for
example, to an owner or manager of a business in relation to his or her
employees or staff. Subclause 140(5) is a corollary to subclause 140(3) and
provides an exemption to the offence under subclause 140(4) for persons
`holding out' dentistry students in limited circumstances.
Subclause 140(6) covers other circumstances where a person may
mislead health consumers into believing the person is a dental practitioner.
The provision also covers circumstances where a person claims to be
authorised or qualified to practise dentistry. A person claiming to be
authorised to practise the profession may mislead consumers into believing
he or she has a legal authority to practise dentistry, for example, by stating
that he or she is licensed or approved to practise dentistry. (It should be
noted that clause 143 only deals with circumstances where a person claims
to be actually registered under this Act. Also it should be noted that a
person may claim to be a dental practitioner (and therefore mislead health
consumers) without necessarily claiming to be registered under this Act).
The nature of the offence means that it effectively only applies to
individuals.
Subclause 140(7) is a corollary to subclause 140(6) and applies, for
example, to an owner or manager of a business in relation to his or her
employees or staff.
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Dental Practitioners Registration
Having regard to the objects of the Act and the potential for the behaviour
targeted by this provision to seriously compromise public health and safety,
the offences under subclauses 140(1) & (4) are punishable by a maximum
penalty of 1000 penalty units.
Similarly to clause 140 (discussed above), clause 141 operates to protect
health consumers in relation to the taking and use of restricted specialist
titles. The objective of this clause is to enable consumers to distinguish
between specialist registrants and other persons (registrants or
non-registrants) who are not registered under this Act in a specialty. Clause
141(1) restricts the taking or use of a restricted specialist title for a specialty
to specialist registrants and provisional specialist registrants in the specialty.
(The term `restricted specialist title', for a specialty, is defined in the
dictionary in Schedule 3 of the Act as a title that consists of or includes
words prescribed under a regulation for the specialty. It is intended that the
words prescribed will be those commonly used by recognised specialties,
for example, `orthodontist' for the specialty of orthodontics).
Subclause 141(2) allows persons who are not registered or provisionally
registered under this Act in a specialty to use a restricted specialist title for
the specialty in limited circumstances. For example, a person who has an
orthodontic practice that employs or otherwise engages registered
orthodontists to provide orthodontic services is permitted to use the title
`orthodontist' in the business name of the practice. This provision should
be read in conjunction with subclause 141(4), discussed below.
Subparagraph 141(3)(a) also provides a limited exception to the offence
under subclause 141(1). It should be noted that this exception only applies
when the person takes or uses a restricted specialist title while actually
undertaking training in the specialty.
It should be noted that subparagraph 141(3)(b) also permits the use of a
restricted specialist title for a specialty by special purpose registrants and
provisional special provisional registrants whose registration involves the
practice of the specialty ie registrants whose certificate of special purpose
registration (or provisional special purpose registration) includes details of
the specialty as required under subclause 120(2), discussed above.
Subclause 141(4) is a corollary to subclause 141(1) and applies, for
example, to an owner or manager of a specialist dental practice in relation to
his or her employees or staff. Subclauses 141(5) & (6) are a corollary to
subclause 141(3) and provide exemptions in limited circumstances to the
offence under subclause 141(4) for special purpose registrants and
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provisional special purpose registrants and persons holding out other
persons undertaking specialist training.
Subclause 141(7) deals with circumstances where a person (regardless of
whether or not the person is registered under this Act) may mislead health
consumers into believing the person provides dental services in an area that
is not a prescribed specialty. For example, a person may mislead
consumers by calling himself or herself a `cosmetic dental specialist' or a
`specialist dentist' in an area which is not a prescribed specialty under this
Act. Subclause 141(8) is a corollary to subclause 141(7) and applies, for
example, to an owner or manager of a dental practice in relation to his or her
employees or staff.
Clause 142 exempts registrants who use the title `doctor' in the
circumstances specified in subparagraphs (a) or (b), from the offence
provision contained in the Higher Education (General Provisions) Act 1993
regarding the higher education award of the status, title or description of
`doctor'.
Clause 143 makes it an offence for a person who is not a registrant to:
· claim or hold out to be registered, or to be eligible to be registered,
under this Act; or
· allow himself or herself to be held out as being registered under
this Act.
Having regard to the objects of the Act and the potential for the behaviour
targeted by this provision to seriously compromise public health and safety,
this offence is punishable by a maximum penalty of 1000 penalty units.
Clause 144 makes it an offence for a person to hold out another person
as being registered under this Act, if that person knows or ought reasonably
to know that the other person is not registered under this Act. For example,
the owner of a dental practice must not hold out that an individual employee
is a registered dentist, if the owner knows the employee is not registered
under this Act. Subclauses 144(2) & (3) make it an offence for a person to
hold out another person as being:
· a specialist registrant per se (ie registered under part 3, division 8
of this Act); or
· registered under part 3, division 8 of this Act in a particular
specialty
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if that person knows or ought reasonably to know that the other person is
not a specialist registrant per se or is not registered under part 3, division 8
of this Act in the particular specialty, as the case may be.
Having regard to the objects of the Act and the potential for the behaviour
targeted by this provision to seriously compromise public health and safety,
these offences are punishable by a maximum penalty of 1000 penalty units.
Clause 145 makes it an offence for a person who is a specified category
or subcategory of registrant to:
· claim or hold out to be, or to be eligible to be, another category of
registrant under this Act; or
· allow himself or herself to be held out as being another category
of registrant.
Clause 146 makes it an offence for a person who is provisionally
registered in a category of registration to:
· claim or hold out to hold, or to be eligible to hold, `full'
registration in that category; or
· allow himself or herself to be held out as holding `full'
registration in that category.
Clause 147 makes it an offence for a registrant who is registered on
conditions to:
· claim or hold out to be registered without those or any conditions;
or
· allow himself or herself to be held out as being registered without
those or any conditions.
Division 2--Notification of business names and other details
Clause 148 makes it an offence for a person to fail to provide the board
with certain identifying information about the conduct of a person's dental
practice namely:
· if a registrant carries on the practice under a business name other
than his or her own name--the business name
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Dental Practitioners Registration
· if an individual who is not a registrant carries on the practice
(regardless of whether he or she carries on the practice on behalf
of another person or group of persons)--the business name under
which the practice is carried on and the individual's name and
address
· if a corporation carries on the practice--(i) the business name
under which the practice is carried on, (ii) the name and principal
address of the corporation and (iii) if the corporation is a
corporation under the Corporations Law--the names and
addresses of the directors of the corporation, or otherwise --the
names and addresses of the members of the governing body of
the corporation. For example, if an association incorporated
under the Associations Incorporation Act 1981 carries on the
practice, the association must provide the names and addresses of
the members of the management committee; if a co-operative
carries on the practice, the co-operative must provide the names
and addresses of the members of the board of directors.
The operation of this provision is not affected by the fact that a business
name is not registered under the Business Names Act 1962.
The purpose of this provision is to enable the board to keep abreast of the
affiliations of both registrants and non-registrants with particular practices.
This will assist in the efficient administration of the Act, for example, this
information is used to identify persons who advertise a dental service or a
dental practice (see clause 151, discussed below). It is important to note the
operation of clause 259 (discussed below) which provides an amnesty of
six months duration from the commencement of this Act in respect of the
offence under this clause.
It should be noted that the board has no role or power to approve
business names notified to it under this clause. It is also important to note
that the offence under this provision is failure to notify a business name, not
the actual carrying on of the business.
Clause 149 makes it an offence for a person, who has provided
information to the board under clause 148 (discussed above), to fail to
notify the board of a change in that information. Subclause 149(3) provides
the person with a 14 day `period of grace' within which he or she does not
contravene this provision.
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Division 3--Advertising
Clause 150 makes it an offence for a person to advertise a dental service
or a dental practice in certain ways. An inclusive definition of the term
`advertise' is located in the dictionary in Schedule 4 of the Act and covers
any form of advertising, for example newspaper advertisements, signage
and electronic advertising. The advertising restrictions imposed under this
clause are focussed on `fair trading' principles, the provision of adequate
information to consumers and the protection of the public. Specifically, this
provision requires that advertising must not:
· be false, misleading or deceptive, for example, advertising which
creates an unreasonable expectation of beneficial treatment
outcomes by falsely alluding to treatment outcomes
· offer an inducement, without setting out the terms and conditions
applying to the inducement
· refer to, use or quote from endorsements or testimonials, for
example, unsubstantiated claims by persons who may not be
qualified to make such claims or claims made in response to
financial incentives, which could adversely influence consumers'
ability to make informed decisions or choices. It should be noted
that this provision is targeted at this form of advertising in the
public domain, not the use of references etc by registrants in job
applications or tender documents
· disparage another registrant, dental practice or dental services
provided by another person or practice, for example, by
unfavourably contrasting services provided by one registrant with
services provided by another registrant
· promote a harmful or potentially harmful dental service. For
example, advertising of procedures, techniques or services which
have no proven therapeutic benefit but have resulted in injuries to
persons
· promote a registrant as having expertise in an area of practice,
unless the registrant has the skills, knowledge, training or
qualifications to practise in the area.
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Subclause 150(4) excludes printers or publishers, for example the
Yellow Pages, from the operation of this offence provision, in
circumstances where he or she merely prints or publishes an advertisement
as part of his or her business, for another person.
It should be noted that this provision is intended to operate in addition to
and not in derogation of the Fair Trading Act 1989.
Clause 151 makes it an offence for a person who advertises a dental
service or a dental practice without stating certain identifying information in
the advertisement, namely:
· where a registrant provides the service or carries on the practice
advertised, in his or her own name--the registrant's name; or
· otherwise --the business name notified to the board under clause
148 (discussed above).
The purpose of this provision is to enhance the board's ability to enforce
clause 150 by assisting the board to identify persons who advertise dental
services or practices. It is important to note the operation of clause 259
(discussed below) which provides an amnesty of six months duration from
the commencement of this Act in respect of the offence under this clause.
Clause 151(2) excludes printers or publishers, for example the Yellow
Pages, from the operation of this offence provision, in circumstances where
he or she merely prints or publishes an advertisement as part of his or her
business, for another person.
Division 4--Registrants' autonomy
Clause 152 makes it an offence for a person to aid, abet, counsel, procure
or induce (including by threats or promises) a registrant to engage in
conduct which could result in the registrant being disciplined under the
Health Practitioners (Professional Standards) Act 1999. This is a key
offence provision in the Act which is targeted at both registrant and
non-registrant owners or managers of a dental practice, or other persons in a
position of influence over a registrant, who engage in conduct, implement
policies etc which interfere with or compromise the professional
independence or clinical activities of registrants. For example, this may
involve imposing an unreasonable quota on the number of consultations per
week; restricting the length of consultations, requiring registrants to use
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inferior equipment or products or encouraging over-servicing. Having
regard to the objects of the Act and the potential for the behaviour targeted
by this provision to seriously compromise public health and safety, this
offence is punishable by a maximum penalty of 1000 penalty units.
Division 5--Court orders and injunctions
Clause 153 enables a court sentencing a person for an offence specified
in subclause 153(1), to prohibit or impose conditions or restrictions on that
person's involvement in the provision of health services. The intention of
this provision is to allow a court to impose a more substantial sanction for
serious and/or repeat offenders under part 4 of the Act. For example, the
court may make an order prohibiting or restricting a person's involvement
in the provision of a specific health service or health services generally; an
order prohibiting the person from having a financial interest in a business
providing a health service (for example, being an owner or part owner of a
business); or an order prohibiting or restricting a person (including a
corporation) from entering into commercial arrangements, such as a lease,
with a health service provider. It is important to note that the term `health
service' is broadly defined in the dictionary in Schedule 4 of the Act, and
includes dental services.
Clause 154 confers power on the Magistrates Court and the District
Court to hear and decide an application for an injunction in relation to the
conduct or failure specified in subclause 154(1) and sets out the court's
powers to grant a range of injunctions. It should be noted that whereas the
Magistrates Court may only exercise its powers under this clause when
proceedings for an offence against this Act are pending before it, the District
Court may exercise these powers at any time.
Division 6--Reprisals
Clause 155, which is based on section 388 of the Health Practitioners
(Professional Standards) Act 1999, makes it unlawful for anyone to take a
reprisal against a person for giving information, assistance or evidence to
the board, an inspector or a court in relation to an alleged contravention of
specified provisions of the Act. This clause also establishes a test for
determining when an unlawful reprisal has taken place.
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Clause 156, which is based on section 389 of the Health Practitioners
(Professional Standards) Act 1999, makes it an offence for a person to take
a reprisal within the meaning of clause 155 (discussed above). Having
regard to the operation of clause 207 (discussed below), the taking of a
reprisal is an indictable offence.
Clause 157, which is based on section 390 of the Health Practitioners
(Professional Standards) Act 1999, entitles a person who suffers detriment
as the result of the taking of a reprisal within the meaning of clause 155, to
sue for damages. It also sets out the procedure and powers of the court for
dealing with a claim for damages under this provision.
Division 7--Other provisions
Clause 158 makes it an offence for a registrant or a person carrying on a
business providing dental services (the `service provider') to give or receive
`kickbacks', (ie payment or other benefits) in exchange for the referral of
consumers to or from the service provider or the service provider's
business.
It is important to note that whereas the focus of subclause 158(2) is on
the giving of kickbacks to any person, including a non-health service
provider; the focus of subclause 158(3) is on the receipt of kickbacks for the
referral of clients to another health service provider. This clause is intended
to address concerns that consumers' health could be compromised by
referral arrangements which are based on financial or non-financial benefit,
rather than consideration of the individual consumer's best interests.
PART 5--INVESTIGATION AND ENFORCEMENT
Part 5 makes provision for the inspectorial powers required by the board
for the purpose of investigating alleged offences against this Act. It is
important to note that the investigation of potential disciplinary matters is
conducted under the Health Practitioners (Professional Standards) Act
1999.
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Division 1--Inspectors
Clause 159 specifies that an inspector has the function of conducting
investigations and inspections to enforce compliance with this Act. The
term `inspector' is defined in the dictionary in Schedule 4 of the Act.
Clause 160 specifies that an inspector has the powers given to that person
under this Act.
Clause 161 provides for the powers of an inspector to be limited under
an instrument of appointment.
Division 2--Appointment of inspectors and other matters
Clause 162 specifies the persons who may be appointed by the board as
inspectors. Persons, other than a board member or the Executive Officer,
appointed as inspectors under this provision, are required to have the
necessary expertise or experience to be an inspector.
Clause 163 sets out some `machinery' provisions in relation to the
conditions and term of appointment of inspectors.
Clause 164 requires the board to give inspectors identity cards, and sets
out the information to be included on an identity card.
Clause 165 makes it an offence for a person who ceases to be an
inspector, to fail to return his or her identity card to the board, unless the
person has a reasonable excuse.
Clause 166 requires an inspector to first produce or display his or her
identity card before exercising any powers under this Act. However,
provision is also made for the inspector to produce the card at the first
reasonable opportunity where it is not immediately practicable to do so.
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Division 3--Powers of inspectors
Subdivision 1--Entry of places
Clause 167 is a `standard provision' setting out the circumstances in
which an inspector may enter a place. The terms `occupier', `place',
`premises' and `public place' are defined in the dictionary in Schedule 4 of
the Act.
Subdivision 2--Procedure for entry
Clause 168 outlines the procedures an inspector must follow when
seeking consent to enter any place.
Clause 169 makes provision for an inspector to apply to a magistrate for
a warrant to enter a place. Under this provision, a magistrate may refuse to
consider an application until the inspector provides the magistrate with the
information he or she has requested.
Clause 170 sets out the grounds on which a magistrate may issue a
warrant and specifies the information that must be stated in a warrant.
Clause 171 makes provision for an inspector to apply for a warrant by
telephone, facsimile, radio or other form of communication because of
urgent or other special circumstances.
Clause 172 outlines the procedures that must be followed by an inspector
prior to entering a place under a warrant.
Subdivision 3--Powers after entry
Clause 173 sets out what an inspector who has entered a place under
clause 167 is empowered to do while in that place.
Clause 174 makes it an offence for a person to fail to give reasonable
help to an inspector under subparagraph 173(3)(f), unless the person has a
reasonable excuse.
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Clause 175 makes it an offence for a person to fail to provide
information to an inspector under subparagraph 173(3)(g), unless the
person has a reasonable excuse.
Subdivision 4--Power to seize evidence
Clause 176 sets out the power of an inspector to seize a thing at a place
entered without consent or a warrant. In these circumstances, the inspector
must reasonably believe the thing to be seized is evidence of an offence
against this Act.
Clause 177 sets out the powers of an inspector to seize a thing at a place
entered with consent or a warrant. In these circumstances an inspector may
exercise the power to seize evidence if the inspector:
· obtained the necessary consent to enter the place; reasonably
believes the thing to be seized is evidence of an offence against
this Act and the seizure of the thing is consistent with the purpose
of entry stated to the occupier; or
· is authorised to enter the place under a warrant and the seizure is
authorised by the warrant; or
· reasonably believes another thing at the place is evidence of an
offence against this Act and needs to be seized to secure evidence
or to prevent continuing or repeat offences; or
· reasonably believes a thing at the place has just been used in
committing an offence against this Act.
Clause 178 sets out what an inspector may do to secure a thing seized
under this subdivision, for example, to preserve its evidentiary value.
Clause 179 makes it an offence for a person to tamper, or attempt to
tamper, with a thing seized under this subdivision, or something restricting
access to the thing.
Clause 180 sets out what action an inspector may require a person in
control of a thing to take, in order to enable the thing to be seized under this
subdivision. Subclause 180(4) makes it an offence for the person to fail to
comply with a requirement under this provision, unless the person has a
reasonable excuse.
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Clause 181 requires an inspector to issue a receipt, containing specified
information, for any thing seized under this subdivision and to give the
receipt to the person from whom the thing was seized. Subclauses 181(2)
& (4) provide exceptions to the duty to provide a receipt in certain
circumstances.
Clause 182 sets out the circumstances in which a seized thing will be
forfeited to the State. This provision also specifies the circumstances in
which and extent to which an inspector must make reasonable inquiries to
locate the owner of the seized thing. It should be noted that if an inspector
decides that it is necessary to retain the seized thing in order to prevent it
from being used to commit an offence against this Act, the inspector must
give the owner of the thing an information notice. Having regard to the
operation of clause 198 (discussed below), the inspector's decision is a
decision that may be appealed under part 6 of the Act.
Clause 183 allows a court, on the conviction of a person for an offence
under this Act, to order the forfeiture to the State of anything used to
commit the offence or anything else the subject of the offence, regardless of
whether or not the thing has been seized under this subdivision.
Clause 184 enables the Executive Officer to deal with a thing which has
been forfeited to the State as he or she considers appropriate, including
destruction or disposal of the thing. However, the Executive Officer must
not deal with the thing in a way that could prejudice the outcome of an
appeal under part 6 of the Act or another appeal, relevant to the thing, under
section 118 of the District Court Act 1967.
Clause 185 sets out when an inspector must return a thing that has been
seized under this subdivision but not forfeited to the State.
Clause 186 provides for the owner of any seized thing to have access to it
for inspection or, if it is a document for copying, until it is forfeited or
returned.
Subdivision 5--Power to obtain information
Clause 187 is a `standard provision' which gives an inspector the power
to demand the name and residential address of a person whom the inspector
has observed committing, or reasonably suspects to have just committed, an
offence against this Act (a `personal details requirement'). This includes the
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power to require the person to produce evidence of correctness of the stated
name or address, if the inspector reasonably believes the stated name or
address is false. It is important to note that when making a personal details
requirement, the inspector must warn the person it is an offence to fail to
state his or her name or address, unless the person has a reasonable excuse.
Clause 188 makes it an offence for a person to fail to comply with a
personal details requirement under clause 187, unless the person has a
reasonable excuse. However, a person does not commit an offence against
this provision if it is not proven that the person committed an offence
against this Act.
Clause 189 gives an inspector the power to require a person to produce a
document, issued to the person under this Act, or to make the document
available for inspection by the inspector (a `document production
requirement').
Clause 190 makes it an offence for a person to fail to comply with a
document production requirement under clause 189, unless the person has a
reasonable excuse. Subclause 190(2) provides that it is not a reasonable
excuse for an individual not to comply with a document production
requirement if compliance might tend to incriminate the individual.
Clause 191 gives an inspector the power to require a person to give
information, including documents, where the inspector reasonably believes
that an offence against this Act has been committed and the person may be
able to give information about the offence. Subclause 191(3) makes it an
offence for a person to fail to comply with a requirement under this clause,
unless the person has a reasonable excuse. Subclause 191(4) specifies that
protection from self-incrimination is a reasonable excuse for a person to fail
to comply with a requirement under this clause.
Division 4--General enforcement matters
Clause 192 is a `standard provision' which requires an inspector or
another person acting under the direction of an inspector, who damages
something while exercising a power under this part of the Act to give notice
of the damage to the appropriate person.
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Clause 193 is a `standard provision' enabling a person who incurs loss
or expense because of the exercise or purported exercise of a power under
part 5, division 3, subdivisions 1, 3 & 4 to claim compensation from the
board for that loss or expense.
Clause 194 makes it an offence for a person to give information to an
inspector that the person knows is false or misleading. This would cover
the situation where, for example, a person made a false or misleading
statement to an inspector investigating an offence allegedly committed by
the person, as well as the situation where a person makes a false complaint
to an inspector about a person contravening this Act.
Clause 195 makes it an offence for a person to give an inspector a
document containing information the person knows is false and misleading.
Subclause 195(2) specifies the circumstances under which a person does
not commit an offence under this clause.
Clause 196 makes it an offence for a person to obstruct an inspector in
the exercise of a power under this part of the Act, unless the person has a
reasonable excuse.
Clause 197 makes it an offence for a person to impersonate an inspector.
PART 6--APPEALS
Clause 198 provides a person who is given, or who is entitled to be
given, an information notice for a decision made under this Act, with a right
of appeal against the decision to the District Court. For information
purposes, Schedule 1 specifies the decisions that may be appealed under this
clause.
It is important to note that this part of the Act is to be read in conjunction
with the provisions of the Uniform Civil Procedure Rules 1999 which deal
with appeals to the District Court.
Clause 199 specifies where, how and the timeframe within which an
appeal may be started.
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Clause 200 specifies that in deciding an appeal, the court has the same
powers as the person who made the original decision (ie the board or an
inspector); is not bound by the rules of evidence and must comply with
natural justice. An appeal is by way of rehearing on the material before the
person who made the original decision and any further evidence allowed by
the court.
Clause 201 sets out the powers of the court and details the decisions the
court may make when deciding an appeal. It is important to note that if the
court decides to:
· amend the original decision or substitute another decision for the
original decision --the amended or substituted decision is taken to
be the decision of the person who made the original decision (ie
the board or the inspector concerned); or
· impose conditions on a person's registration--the court must:
· state the reasons for its decision
· also decide and state the review period applying to the
conditions; and
· if the conditions imposed are `health conditions', decide
whether details of the conditions should be recorded in the
register. The basis for the court's decision in this regard is
whether it is in the public interest for the details of the
conditions to appear in the register.
Clause 202 permits the appointment of one or more assessors to assist
the court in deciding an appeal which involves a question of special
knowledge and skill. Although the function of an assessor is to advise the
court about any questions arising during the hearing, all questions of fact or
law must be decided by the court.
PART 7 --LEGAL PROCEEDINGS
Division 1--Evidence
Clause 203 clarifies that part 7, division 1 applies to a proceeding under
this Act.
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Clauses 204 to 206 specify those matters which do not have to be
proved, or which are considered to be evidence.
Division 2 --Proceedings
Clause 207 clarifies that all offences against this Act are summary
offences, except for the offence against clause 156 (which deals with the
taking of a reprisal) which is an indictable offence.
Clauses 208 & 209 set out the procedures and limitations on taking
proceedings for an indictable offence against this Act.
Clause 210 specifies the timeframe within which proceedings for a
summary offence against this Act must start.
Clause 211 provides that, in any proceeding for an offence against this
Act relating to false or misleading information or documents, for example
an offence against clause 194 or 195 (discussed above) or clause 232 or 233
(discussed below), it is sufficient for the charge to state that the information
or document was `false or misleading'.
Clause 212 specifies that where the board initiates proceedings for an
offence against this Act and a penalty is imposed, the court must order the
penalty to be paid to the board. Where proceedings are initiated by a person
other than the board, section 43 of the Acts Interpretation Act 1954 applies
in respect of the payment of any penalty imposed by the court.
Clause 213 specifies that an action or omission by a person's
representative, in relation to an offence against this Act, is taken to have
been done by the person if the representative was acting within the scope of
the representative's authority, unless the person proves that he or she could
not, by the exercise of reasonable diligence, have prevented the act or
omission. Subclause 213(4) defines the terms `representative' and `state of
mind' for the purpose of this clause.
Clause 214 places an obligation on the executive officers of a corporation
to ensure that the corporation complies with this Act. This provision creates
an offence on the part of each executive officer in situations where the
corporation has committed an offence against this Act. However, it is a
defence for an executive officer to prove that he or she exercised reasonable
diligence to ensure the corporation complied with this provision or was
otherwise not in a position to influence the conduct of the corporation in
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relation to the offence. The term `executive officer', for a corporation, is
defined in the dictionary in Schedule 4 of the Act.
PART 8--REGISTER, RECORDS AND
INFORMATION
Division 1--Register
Clause 215 requires the board to maintain a current register about
registrants, which contains at least the information specified in subclause
215(3). There is nothing to prevent the board from recording other
information about registrants, for example, details of registrants' additional
qualifications. With the exception of the information specified in subclause
215(3), the manner of keeping the register is to be determined by the board.
Consistent with the status of the register as a public document, clause
216 requires the board to allow the public to inspect the register free of
charge and, upon payment of the prescribed fee, to obtain a copy of the
register or part of it. The effect of subclause 216(2) is to ensure that details
of a registrant's residential address are not publicly accessible.
Division 2--Records to be kept
For the purpose of effectively administering the legislative scheme,
clause 217 requires the board to keep records, for at least 10 years, of the
details specified in subclause 217(1) about each registrant and former
registrant. These details relate to the various ways in which a person's
registration could be affected under the legislative scheme. With the
exception of the information specified in subclause 217(1), the manner of
keeping the records is to be determined by the board. The term `former
registrant' is defined in the dictionary in Schedule 4 of the Act.
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Division 3--Information
Clause 218 makes it an offence for persons specified in subclause 218(1)
to disclose information obtained in the course of administering this Act,
unless the disclosure is expressly authorised under subclause 218(4). The
information protected under this provision is information about a person's
health or information about a person's criminal history obtained under
clause 45 (discussed above).
Clause 219 specifies that where the Minister authorises the disclosure of
confidential information under subclause 218(4)(i) during a financial year,
the board must include a statement, containing the details specified in
subclauses 219(3) & (4), in its annual report.
PART 9--MISCELLANEOUS
Division 1--Abandoned, and other, health records
Division 1 gives the board specific powers and responsibilities designed
to safeguard the confidentiality of health records that have been abandoned
or otherwise delivered into the board's possession.
Clause 220 defines the terms `health records' and `possess' for the
purpose of this division. It should be noted that the definition of `health
records' does not include the financial records of a dental practice.
Clause 221 sets out the board's powers and the procedures to be
followed in relation to abandoned health records. The issue of whether
records have been abandoned for the purpose of this provision will depend
on the circumstances of each case, having regard to the generally understood
meaning of the term `abandoned'.
Clause 222 enables the board to exercise its powers under this division in
relation to health records of a deceased practitioner, with the consent of the
practitioner's personal representative.
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Clause 223 sets out the board's powers and the procedures to be
followed in relation to health records in the possession or control a person
who is convicted of an offence against specified clauses (which deal with
the taking of restricted titles, restricted specialist titles and holding out).
Clause 224 sets out the procedure to be followed in relation to health
records referred to in clauses 221 or 223 which have been seized by an
inspector under part 5 of the Act. The effect of subclause 224(3) is to
prevent these records from being forfeited to the State or being returned to
or accessed by their owner under part 5 of the Act. The powers specified
under subclause 224(3) are irrelevant to these records because:
· the board has specific powers to deal with these records under
clause 225 (discussed below);
· `abandoned' records effectively have no owner--there is no one
to return the records to, or who would wish to access those
records;
· records referred to in clause 223 should not have been kept by the
person referred to in that clause (discussed above)--on this basis,
it is not appropriate to allow that person to have access to those
records or for those records to be returned to that person.
Clause 225 sets out what action the board may take in relation to health
records taken or delivered into its possession under this division.
Clause 226 provides that compensation is not recoverable against the
board if the board destroys a health record under subparagraph 225(2)(d).
Division 2--Continuing professional education of registrants
Division 2 deals with the board's discretionary function to encourage
registrants to undertake continuing professional education (`CPE'). It is
important to note that, although a highly desirable activity, participation in
CPE is not mandatory for registration under this Act.
Clause 227 gives the board discretion to develop or recognise a CPE
program and to promote it to registrants as a `board endorsed' means of
keeping up to date with developments in the practice of dentistry. Having
regard to the role and expertise of professional associations and educational
institutions in the development and delivery of CPE programs, it is likely
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that the board will recognise appropriate programs developed and/or
delivered by external bodies. Registrants who satisfy the requirements of a
`board endorsed' CPE program under this clause, are permitted to advertise
the fact.
Division 3--Declared events
Division 3 provides deemed general or specialist registration under this
Act to interstate registered practitioners who are engaged to provide dental
or dental specialist services to persons participating in, or preparing for,
declared sporting, cultural or other events in Queensland. The effect of this
division is to extend the benefits and obligations of general or specialist
registration under the legislative scheme to `visiting practitioners'. This
means that a visiting practitioner has the same privileges (for example, the
right to use a restricted title or to undertake a restricted practice) and the
same obligations (for example, a visiting practitioner can be disciplined
under the Health Practitioners (Professional Standards) Act 1999) as a
general or specialist registrant under the legislative scheme, within the
limited scope of the declared event.
It is important to distinguish the operation of this division (which
provides deemed registration to interstate registered practitioners who
accompany participants in declared sporting, cultural or other events in
Queensland) from the operation of the Health Practitioners (Special Events
Exemption) Act 1998 (which exempts practitioners from overseas, who
accompany overseas visitors participating in or preparing for declared
sporting, cultural and other events in Queensland, from the registration
requirements of Queensland legislation).
Clause 228 defines terms, including `declaration period', `declared event'
and `visiting practitioner', for the purpose of this division.
Clause 229 authorises the Minister to declare a `declared event' by
publishing a notice in the Gazette, containing the information specified in
subclause 229(3), for a Queensland-based sporting, cultural or other event.
It should be noted that the gazette notice is subordinate legislation.
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Clause 230 provides deemed general or specialist registration to a visiting
practitioner. Where conditions apply to the visiting practitioner's interstate
registration, his or her deemed registration under this Act is taken to be
subject to the same conditions. The effect of this provision is that visiting
practitioners are taken to be registered under part 3 of the Act (and therefore
come within the definitions of `registrant' and `general registrant' or
`specialist registrant', as the case may be). It is important to note that the
scope of the deemed registration provided under this clause is limited to the
provision of professional services to an event participant, during the
declaration period for the event.
Subclauses 230(4) & (5) clarify that a visiting practitioner with deemed
general or specialist registration is not a `general registrant', `specialist
registrant' or `registrant' for the operation of the provisions specified. For
example, subclause 230(4) makes it clear that a visiting practitioner can not
apply for renewal of registration. It should be noted that the other divisions
within part 3 (which deal with making and deciding applications for general
and special purpose registration, periods of registration, registration
certificates and the process of provisionally registering applicants for
registration) are irrelevant to visiting practitioners with deemed general or
specialist registration.
Division 4--Other provisions
Clause 231 specifies that the persons specified in subclause 231(3) who
have a role in the administration of this Act are not civilly liable for an act or
omission, made honestly and without negligence, under this Act. Instead,
such liability attaches to the board.
Clause 232 makes it an offence for a person to give the board
information, or a document containing information, that the person knows
is false or misleading. This would cover the situation where, for example, a
person makes a false complaint to the board about a person contravening
this Act. Subclause 232(3) specifies the circumstances under which a
person does not commit an offence under subclause 232(2).
Clause 233 makes it an offence for a registrant, in his or her professional
capacity, to sign or provide a document that the registrant knows is false or
misleading.
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It should be noted that fraudulent practices relating to registration, for
example, fraudulently obtaining registration; fraudulently procuring another
person to be registered; falsely representing that a person applying for
registration is the person mentioned in a document given to the board; or
forging a registration certificate, can be dealt with as offences against the
Criminal Code, for example, section 502 which deals with attempts to
procure unauthorised status.
Clause 234 is to be read in conjunction with the `cross-application'
provisions of the Act --for example, clause 120 which applies relevant
provisions from part 3, divisions 2 & 3 for the purpose of applying for
special purpose registration and registering a person as a special purpose
registrant under part 3, division 9. This clause complements the
cross-application provisions by extending them to cover any necessary
consequential modifications that need to be made to the applied provisions
for them to be applied fully, including any relevant definitions. The broad
nature of this provision applies, notwithstanding the specific nature of the
cross-application provisions themselves.
Clause 235 provides for the board to approve forms used under the Act.
Clause 236 requires a person who sits an examination set and
administered by the board under this Act, for example under subclause
46(1)(c), to first pay the prescribed fee to the board.
Clause 237 provides for the Governor-in-Council to make regulations to
give effect to the Act, for example to prescribe:
· qualifications for general registration under part 3, division 2
· recency of practice requirements for renewal of general
registration under part 3, division 4; and
· the range of fees provided for under the Act and arrangements for
the refunding of those fees in certain circumstances.
PART 10--REPEAL, TRANSITIONAL AND SAVINGS
PROVISIONS
The Dental Act 1971 and Dental By-law 1988 imposed restrictions on the
practice of dentistry. Those restrictions were identified as potentially
anti-competitive and were reviewed under National Competition Policy
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(NCP), which requires the review and, where necessary, reform of
legislation which restricts competition. As the NCP review of those
provisions was not finalised at the time this legislation was introduced into
the Parliament, the restrictions on practice imposed by the Dental Act 1971
and the Dental By-law 1988 have been `saved' under this Act and will
continue to apply until this Act is amended to reflect the outcome of the
NCP review.
Division 1--Repeal
Clause 238 repeals the Dental Act 1971.
Division 2--Transitional provisions
Division 2 makes transitional arrangements relating to the establishment
of the board, the transfer of registration for existing registrants; and
continuing applications and other proceedings commenced under the
repealed Act.
Clause 239 defines certain terms used in part 10, division 2.
Clause 240 specifies that a reference to the Dental Act 1971 or the former
board may, if the context permits, be taken to be a reference to this Act or
the board respectively.
Clause 241 provides that the board is the legal successor of the former
board.
Clause 242 makes provision for the transfer of the former board's assets,
liabilities and other commitments to the board.
Clause 243 provides that the board is taken to have entered into a service
agreement entered into by the former board and still in force immediately
before the commencement of clause 239.
Clause 244 applies to legal proceedings, for example civil proceedings,
that could have been started or continued by or against the former board.
These proceedings may be started or continued by or against the board.
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Clause 245 applies to a matter that had started to be or could have been
dealt with by the former board under the Health Practitioners (Professional
Standards) Act 1999, for example, the investigation of potential disciplinary
action, disciplinary proceedings, immediate suspension or imposition of
conditions, impairment processes or offence proceedings under that Act.
The matter may be continued or started to be dealt with by the board under
that Act. It should be noted that the concept of a matter `being dealt with by
the former board' includes the situation where the former board was a party
to proceedings before an independent adjudicative body under that Act, as
well as where the former board was the decision maker under that Act.
Clause 246 provides for the commencement or continuation of
proceedings for an offence against the repealed Act, as if this Act had not
commenced. Subclause 246(1) continues relevant provisions of the
repealed Act and the Medical Act and Other Acts (Administration) Act 1966
for this limited purpose. Having regard to the operation of section 7 of the
Acts Interpretation Act 1954, this provision includes proceedings for an
offence against the Dental By-law 1988. It should be noted the operation of
this clause is effectively `capped' by section 33 of the repealed Act which
imposed a time limitation on the commencement of proceedings under that
Act.
Clauses 247 & 248 continue the existing board membership and
appointments of president and deputy president until the earlier of the
following events:
· the day the member's term of appointment under the repealed Act
would have ended if this Act had not commenced; or
· the day the member, president or deputy president (as the case
may be) vacates office under this Act.
Subclause 247(2) gives the Governor-in-Council the power to appoint
additional persons to be board members, ie to increase the size of the board
up to a maximum of eleven members. It is intended that when this power
is exercised, regard will be had to the minimum board membership
requirements specified in clauses 15--17 of this Act (discussed above). It
is important to note the operation of subclause 247(5) which limits the term
for which a person can be appointed under subclause 247(2).
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It should be noted that these clauses operate despite the board
membership requirements specified in clauses 15--18, 19(1) & (3) and 20
of this Act. This means that, to the extent to which those provisions are
inconsistent with these clauses, these clauses prevail. It is important to note
that the remainder of part 2 of the Act applies, for example, to enable board
members to vacate office, to enable the board to conduct its business under
the legislative scheme and to entitle the board members to be paid. For this
purpose, subclause 247(6) ensures that a reference in part 2 of the Act to a
`registrant member' includes existing members and persons appointed to
the board under subclause 247(2) who are registrants.
Subclause 247(7) gives the Governor-in-Council the power to appoint a
person to a vacancy should it arise. It is intended that when this power is
exercised, regard will be had to the minimum board membership
requirements specified in clauses 15--17 of this Act, for example, the
requirement for the board to comprise at least two public members. It
should also be noted that subclause 19(1) can be used to fill any vacancy in
the offices of chair or deputy chair.
The terms `existing member' and `first board' are defined in subclause
247(9). The terms `existing president' and `existing deputy president' are
defined in subclause 248(5).
Clause 249 provides for the continuation of an appeal commenced or
able to be commenced under the repealed Act, as if this Act had not
commenced.
Clause 250 sets out the transitional arrangements for persons who,
immediately before the commencement of clause 239, were registered
under the Dental Act 1971. Under this clause, the person is taken to be
registered:
· in the equivalent category of registration under this Act [set out in
subclause 250(1)]
· with the same conditions, if any, that applied to his or her
registration under the repealed Act. This includes conditions
imposed on the person's registration under the Health
Practitioners (Professional Standards) Act 1999; and
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· for a term that expires on the latest of the dates specified in
subclause 250(4), unless the registration is surrendered or
cancelled during this period. It should be noted that the date
specified in subparagraph 250(4)(a) corresponds with the end of
the annual payment period that would have applied under the
repealed Act, ie the date after which the person's name would
have been removed from the register under the repealed Act for
failure to pay the prescribed annual licence fee. At the expiry of
this term of registration, the person is required to apply for
renewal of his or her general, specialist or special purpose
registration under the relevant provisions of this Act.
The effect of this clause is to bring the person within the definition of
`registrant' and the relevant definition for the category or subcategory of
registration in which he or she is taken to be registered ie `general
registrant', `specialist registrant', `provisional general registrant' or `special
purpose registrant'. In this way, the person is brought within the scope of
this Act.
Clause 250 also provides for a regulation to specify that currently
prescribed specialties are included in, or equivalent to a specialty which is
prescribed for the purpose of this Act.
The effect of clause 251 is to apply clause 133 (discussed above) to
conditions that were imposed on the person's registration under the repealed
Act and which, because of the operation of subclause 250(3), continue to
apply to the person's special purpose registration under this Act. This
means the board has the power to remove those conditions if it reasonably
believes those conditions are no longer appropriate.
It is important to note that this clause does not apply to conditions
imposed on the person's registration under the Health Practitioners
(Professional Standards) Act 1999, as that Act applies a review period to
conditions imposed under it.
It is important to note that the clause 250 (discussed above) does not
provide for the continuation of the category of overseas conditional
registration under subsection 18(2) of the Dental Act 1971. This is because
there is no equivalent category of registration under this Act. Instead, clause
252 provides that persons who, immediately before the commencement of
clause 239, were registered under subsection 18(2) of the repealed Act are
taken to hold general registration for the remainder of the period for which
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they were granted overseas conditional registration under the repealed Act.
This form of `deemed' general registration can not be renewed. The board
may register these practitioners as general registrants under part 3, division
2 of the Act, if before the end of the period of `deemed' general registration,
the board is satisfied that the person is practising the profession in
Queensland.
Clause 253 applies to applications for registration that were made under
the repealed Act but not decided before the commencement of clause 239.
Subparagraph 253(2)(a) specifies that where there is an equivalent category
of registration under this Act, the board must consider and decide the
application under the relevant division of part 3 of this Act. Subparagraph
253(2)(b) deals with applications from persons who would have been
eligible for overseas conditional registration under subsection 18(2) of the
repealed Act. In these circumstances, the board must consider and decide
the application under this Act as if it were an application for general
registration. It is intended that this clause will enable the continuation under
this Act of any health assessments or examinations commenced under the
repealed Act in respect of such an application. It should be noted that
subclause 253(4) does not limit the operation of the remainder of this Act,
for example, the board is not precluded from provisionally registering the
applicant under this Act.
It is important to note that the Act does not provide for the continuation
of application processes started under the repealed Act, where there is no
equivalent process under this Act, for example, applications for the
registration of additional qualifications.
Clause 254 applies to applications for restoration of registration that were
made under the repealed Act but not decided before the commencement of
clause 239. Where there is an equivalent category of registration under this
Act, the board must consider and decide the application under part 3,
division 5 or part 3, division 5, as applied by clause 113, of this Act.
Clause 255 applies to applications for renewal of limited registration or
registration for postgraduate study or research that were made under the
repealed Act but not decided before the commencement of clause 239. The
board must the consider and decide the application (as if it were an
application for renewal of special purpose registration) under part 3, division
4, as applied by clause 127, of this Act.
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Clause 256 applies to a satisfaction process in relation to a person with
limited registration that was started by the former board under the repealed
Act but not finished before the commencement of clause 239. The board
may continue or discontinue the process as if this Act had not been passed.
This is because there is no equivalent ground and satisfaction process for
cancellation of the equivalent category of registration under this Act.
Clause 257 provides for the continuation of the suspension of a person's
registration where there is an equivalent category of registration under this
Act. This clause applies to suspensions in force at the commencement of
clause 239, that were imposed under either the repealed Act (before it was
amended by the Health Practitioners (Professional Standards) Act 1999)
or under the Health Practitioners (Professional Standards) Act 1999.
Having regard to the operation of clause 250, on the expiry of the period of
suspension, the person is taken to hold the equivalent category of
registration under this Act.
The effect of clause 258 is to deem company names approved by the
board under the repealed Act to have been notified to the board under clause
148 (discussed above). This clause also applies to company names that
were submitted to the board for approval under the repealed Act but not
approved immediately before the commencement of clause 239. Subclause
258(3) enables the board to require a corporation to which this provision
applies, to provide the information mentioned in subparagraphs 148(4)(b)
& (c), where the corporation did not provide this information with the list of
names submitted to the board for approval under the repealed Act. It is an
offence for a corporation to fail to comply with the board's requirement.
The effect of clause 259 is to `sunrise' the operation of clauses 148 and
151 for a period of six months from the commencement of those clauses.
This will enable the board to notify the profession of its new obligations
under these clauses and will give the profession sufficient time to make
suitable arrangements to ensure compliance with these requirements.
Clause 260 requires the board to keep records maintained by the former
board about how and why a registrant's registration was affected under the
repealed Act, for at least 10 years after the commencement of clause 239.
Clause 261 ensures that if the 13 registration Bills do not commence at
the same time, the definition of `health practitioner registration Act' refers to
the relevant current Act for each registered health profession until the new
Act for that profession commences operation.
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Division 3--Savings provisions
It is important to read this division in conjunction with clause 268 and
Schedule 3 (discussed below) which together identify the provisions from
the Dental Act 1971 and the Dental By-law 1988 that are to be saved under
this Act and then renumber and relocate those provisions to this division.
The `saved' provisions, other than section 18 of the Dental By-law 1988,
will physically appear in this division once the Act is reprinted after
commencement.
Clause 265 provides that section 18 of the Dental By-law 1988, which is
amended and `saved' under clause 268 and Schedule 3 (discussed below)
continues to have effect and is taken to be a regulation under this Act, which
can be amended or repealed.
Clause 266 ensures that if this Act commences before the Dental
Technicians and Dental Prosthetists Registration Act 2000, a reference in
the saved provisions (that will be relocated to appear in this division) to that
Act is taken to be a reference to the Dental Technicians and Dental
Prosthetists Act 1991.
PART 11--CONSEQUENTIAL AND OTHER
AMENDMENTS
Clause 267 provides for the amendment of the Acts mentioned in
Schedule 2, for example, to omit references to the Dental Act 1971 and
replace them with references to the Dental Practitioners Registration Act
2000.
Clause 268 provides that Schedule 3:
· amends the Dental Act 1971 and section 18 of the Dental By-law
1988 (only in relation to the provisions to be saved under this
Act). The `saved' provisions are amended to ensure that they are
consistent with the drafting style of this Act (for example, to
change references to `dentist' to `registrant' and to omit parts of
the provisions which deal with matters, such as protection of title
and holding out, that are already provided for elsewhere in this
Act); and
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· renumbers and relocates the amended `saved' provisions to part
10, division 3 of the Act. As discussed above, the `saved'
provisions will physically appear in part 10, division 3 of the Act
when it is reprinted after commencement.
SCHEDULE 1--DECISIONS FOR WHICH
INFORMATION NOTICES MUST BE GIVEN
Schedule 1 lists, for information purposes, those decisions made under
this Act for which information notices must be given and which, having
regard to the operation of clause 198 (discussed above) are decisions which
may be appealed under part 6 of the Act.
SCHEDULE 2--CONSEQUENTIAL AMENDMENTS
OF ACTS
Schedule 2 lists the Acts and the amendments made to them under clause
267 (discussed above).
SCHEDULE 3--AMENDMENT OF DENTAL ACT 1971
AND DENTAL BY-LAW 1988
Schedule 3 identifies and amends the provisions that are to be `saved'
from the Dental Act 1971 and the Dental By-law 1988 under clause 268
(discussed above).
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SCHEDULE 4--DICTIONARY
Schedule 4 defines certain terms used in the Act.
ATTACHMENT
To the greatest extent possible, the 13 profession specific registration
Bills adopt a uniform approach to matters common to the registered health
professions, ie the Bills are based on standard provisions that have been
modified to address issues specific to each profession.
The standard provisions are modified in the Bills to--
· define `profession' and `professional service' for each Bill--for
example, the Occupational Therapists Registration Bill 2000
defines `profession' as the occupational therapy profession
· establish a separate registration board under each Bill
· define `restricted title' for each profession
· repeal the current registration Act (other than the Osteopaths
Registration Bill 2000 and the Medical Radiation Technologists
Registration Bill 2000)
· make transitional arrangements specific to each Bill--eg
arrangements for the transition to the new board; the transfer of
registration for currently registered practitioners; and the
continuation of a range of matters (eg registration applications)
commenced under the repealed Act but not completed at the
commencement of the new legislation; and
· make consequential amendments to other legislation.
The attached table provides a comparative overview of the 13 Bills which
indicates the extent to which each Bill deviates from the standard provisions.
For ease of reference, the use of shading indicates where each Bill adopts
the standard provisions in the same, or substantially the same form.
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It should be noted that this table is provided for information purposes
only, to assist readers of the 13 profession specific registration Bills.
Readers should refer to the relevant Bill to ascertain the precise wording of
provisions.
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101
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© State of Queensland 2000