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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Health Practitioner Regulation
(Administrative Arrangements) National
Law Bill 2008
Explanatory Notes
Title of the Bill
Health Practitioner Regulation (Administrative Arrangements) National
Law Bill 2008
Policy objectives of the Bill
The objective of the Health Practitioner Regulation (Administrative
Arrangements) National Law Bill 2008 (the Bill) is to provide for the
adoption of a national law, hosted by Queensland, that will facilitate the
development and implementation of the new national registration and
accreditation scheme for health practitioners (the national scheme).
The Bill establishes the structural elements of the national scheme and will
enable the National Agency and National Boards to be operational on 1
February 2009 and 1 July 2009 respectively, with limited functions and
powers necessary for the first stage implementation of the national scheme.
The national scheme is to be fully implemented by 1 July 2010, as set out
in the 2008 Intergovernmental Agreement for a National Registration and
Accreditation Scheme for Health Professions, signed by the Council of
Australian Governments (COAG) on 26 March 2008 (the COAG
agreement).
The national scheme is to initially apply to ten health professions, that is:
· the nine health professions registered in each State and Territory
-medical, nursing and midwifery, pharmacy, physiotherapy, dental
(dentists, dental prosthetists, dental therapists, dental hygienists),
psychology, optometry, osteopathy and chiropractic; and
· podiatry (registered in every jurisdiction except the Northern
Territory, where there are insufficient numbers to make registration
viable).
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
To implement the scheme, legislation will be introduced into the
Queensland Parliament in two stages.
The first stage (this Bill) encompasses the COAG agreement.
The second stage legislation, proposed for introduction to Queensland
Parliament in August 2009, will cover matters where further work and
discussion is required beyond the terms of the COAG agreement. These
matters include:
· registration arrangements
· accreditation arrangements
· complaints, conduct, health and performance arrangements
· privacy and information-sharing arrangements
· other matters.
Subject to introduction, debate and passage by the Queensland Parliament,
the second stage legislation is to be hosted by Queensland, with
participating States and Territories introducing adopting or corresponding
legislation to fully implement the national scheme. This approach is
consistent with the COAG agreement.
Reasons for the Bill
Registration of health practitioners is currently the responsibility of each
individual State and Territory Government. Requirements for registration
vary across jurisdictions, and the professions required to be registered to
practise also differ (for example, all jurisdictions register medical
practitioners, but only Queensland registers speech pathologists). As a
result, there are more than 80 health practitioner registration boards in
operation across Australia.
In 2005, the Commonwealth Government asked the Productivity
Commission to undertake a research study to examine issues impacting on
the health workforce including the supply of, and demand for, health
workforce professionals and propose solutions to ensure the continued
delivery of quality healthcare over the next 10 years.
The report, entitled Australia's Health Workforce was delivered in January
2006. The report recommended, among other things, the establishment of
a single national registration board for health professionals, as well as a
single national accreditation board for health professional education and
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
training, to deal with workforce shortages and pressures faced by the
Australian health workforce and increase their flexibility, responsiveness,
sustainability, mobility and reduce red tape.
At its meeting of 14 July 2006, COAG agreed to establish a national
registration scheme for health professionals, beginning with the nine
professional groups registered in all jurisdictions. COAG further agreed to
establish a separate, national accreditation scheme for health education and
training, in order to simplify and improve the consistency of current
arrangements.
Following extensive consultation on these proposals, COAG agreed at its
meeting of 13 April 2007 to establish a single national registration and
accreditation scheme. This model includes a number of major changes to
the original 2006 proposal, including the combining of the registration and
accreditation functions into the one national scheme, and the creation of an
independent advisory council for the scheme. The intergovernmental
agreement for the scheme was signed by COAG on 26 March 2008.
Once fully implemented on 1 July 2010, the national scheme is expected to
deliver the following benefits:
· provide improved safeguards for the public through the development
and implementation of consistent and high-quality registration
standards for each of the health professions included in the scheme
· promote a more flexible, responsive and sustainable health workforce
· enable health practitioners registered under the national scheme to
work across jurisdictions more readily
· reduce administrative `red tape' for health practitioners through the
establishment of a single national scheme that replaces the current
system whereby registration is performed by multiple State and
Territory health practitioner registration authorities.
How the policy objectives will be achieved
The implementation of the national scheme is reliant on a national law that
is given effect to by an Act of a host jurisdiction - in this case, Queensland.
The Bill has been designed to facilitate the first stage implementation of the
national scheme, consistent with the COAG agreement. The more
substantive provisions of the national scheme will be the subject of
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
proposed second stage legislation that will be developed following
extensive consultation with stakeholders over the coming months.
The policy objectives of the Bill will primarily be achieved through
establishing the:
· Australian Health Workforce Ministerial Council (the Ministerial
Council) which will appoint members to the Agency Management
Committee and the National Boards, and issue policy directions as
needed, to facilitate the first stage implementation of the national
scheme. The Ministerial Council comprises Ministers of the
governments of participating jurisdictions, and the Commonwealth
Minister, with portfolio responsibility for health.
· Australian Health Practitioner Regulation Agency (the National
Agency) which will be responsible for the administration of the national
scheme in accordance with the legislation and policy directions issued
by the Ministerial Council. A national office for the Agency will be
established in 2009, with local offices to follow.
· National profession-specific boards for the ten health professions that
are within the current scope of the national scheme. The National
Boards are the:
· Chiropractic Board of Australia
· Dental Board of Australia (professions of a dentist, dental therapist,
dental hygienist, dental prosthetist)
· Medical Board of Australia
· Nursing and Midwifery Board of Australia
· Optometry Board of Australia
· Osteopathy Board of Australia
· Pharmacy Board of Australia
· Physiotherapy Board of Australia
· Podiatry Board of Australia
· Psychology Board of Australia
· Australian Health Workforce Advisory Council (the Advisory
Council), to provide independent advice to the Ministerial Council on
matters related to the national scheme.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Estimated cost for Government Implementation
COAG has agreed to a contribution by governments of $19.8 million to
transition to the national scheme by 1 July 2010. It is intended the scheme
will be self-funding in the longer term.
Consistency with Fundamental Legislative Principles
Aspects of the Bill that may raise potential fundamental legislative
principles issues are outlined below.
Sufficient regard to the institution of Parliament
National scheme legislation
While the Bill has been drafted to have regard to fundamental legislative
principles, it is noted that elements of national scheme legislation have
previously been identified as undermining the institution of Parliament.
The introduction of national scheme legislation in a state or territory
Parliament for adoption by other participating states and territories, is a
standard approach to implementing national schemes in areas, like health,
where Constitutional powers rest with the states and territories, and not the
Commonwealth.
Although national scheme legislation may take a number of forms,
concerns about abrogating the rights of Parliaments tend to be greatest
when, as in this case, the proposed Bill includes pre-determined legislative
provisions based on an agreement by governments. The Bill provides a
national law that has been designed to encompass the COAG agreement
made between all State and Territory jurisdictions, and the Commonwealth.
The COAG agreement represents an important step towards improving
Australia's health system - through the national registration and
accreditation of health practitioners.
Introducing national scheme legislation for registration and accreditation of
health practitioners is expected to provide improved safeguards for the
public, deliver improved administrative efficiency and consistency by
moving from the current fragmented jurisdictional system to one national
scheme, and promote a more flexible, responsive, and sustainable health
workforce.
There are no other viable alternatives that would facilitate the development
of the national scheme and achieve these objectives.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
The COAG agreement identifies Queensland as lead legislator, and host of
the proposed national law, and identifies that the other Australian States
and Territories will bring adoption or corresponding legislation for passage
through their respective Parliaments in time for the national scheme to start
on 1 July 2010. However, Parliaments of each participating jurisdiction
will decide whether to pass adopting or corresponding legislation to enable
the national scheme to become fully operational. Until then, current state
and territory based regulation will continue to apply.
As identified earlier in these Explanatory Notes, to achieve the 1 July 2010
implementation deadline, the legislation is to be introduced to the
Queensland Parliament in two stages; with this first Bill establishing the
structural elements and limited functions and powers of the entities to the
scheme that are necessary for the first stage implementation.
The institution of Parliament is supreme, and the Queensland Legislative
Assembly will ultimately, through its debate of the Bill, decide whether the
Bill will be passed to enable this important first step towards national
registration and accreditation of health practitioners to occur.
Interpretation generally (clause 5)
The Acts Interpretation Act 1954 (Queensland) does not apply to the Bill.
Given the nature of the scheme, consistency of interpretation across
jurisdictions is paramount. Consequently, it was considered that uniform
interpretation provisions of a kind usually contained in the Interpretation
Act of a State or Territory should apply. Schedule 2 of the Consumer Credit
Code, set out in the Consumer Credit (Queensland) Act 1994, contains
such provisions and will apply to the national law.
Approval of health profession standards (clause 8)
The Bill enables the Ministerial Council to approve health profession
standards if so recommended by a National Board. This approval may be
perceived as an exercise of legislative power that results in the standards
not being subject to the scrutiny of Parliament.
However, the standards will be of a profession-specific and technical
nature. A health profession standard is a standard or requirement relating
to the registration, practice, competency, accreditation, or continuing
professional development, with respect to a health profession within the
national scheme.
Standards will be developed by persons or bodies with appropriate
expertise. That is why the legislation provides that the Ministerial Council
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
may only approve a health profession standard if so recommended by a
National Board established for the health profession to which the standard
relates.
To ensure transparency, approved health profession standards are to be
made publicly available.
Sufficient regard to the rights and liberties of individuals
Protection from personal liability (clause 54)
The Bill specifies that a protected person (that is, a member of the Agency
Management Committee, a member of staff of the National Agency, or a
member of a National Board or a committee of the National Board), is not
personally liable for an act or omission done in good faith in the exercise of
a function under the national law or in the reasonable belief that the act or
omission was the exercise of such a function.
It is not considered appropriate for an individual to be made personally
liable as a consequence of carrying out his or her functions under the
national law, in good faith. As such, clause 54 prevents personal liability
from being attached to a protected person. Instead, such liability attaches to
the National Agency, as the statutory body for the national scheme.
Consultation
Proposals for the national scheme
Prior to the signing of the COAG agreement on 26 March 2008, consultation
was undertaken on policy proposals for the national scheme.
Commonwealth and State and Territory officials convened three meetings
with representatives of professional and consumer organisations as follows:
· 28 September 2006, with 54 representatives of peak professional
bodies, training bodies and consumer organisations
· 25 October 2006, with 6 representatives of consumer organisations
· 4 December 2006, with 74 representatives of peak professional
bodies, training bodies and consumer organisations.
More than 80 written submissions were received on the policy proposals
raised at the meetings.
An additional meeting was convened by the Commonwealth on 13 March
2007, with 62 representatives of peak professional bodies (including
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
representatives of each of the nine health professions proposed for
inclusion in the national scheme), training bodies, and consumer
organisations. Twenty-five written submissions were received.
Stakeholder input has informed the scope, structure and functions of the
national scheme that is enshrined in the COAG agreement and in this Bill.
National Law Bill
Further consultation has been undertaken to ensure the proposed legislation
encompasses the elements of the COAG agreement that are necessary for
the first stage implementation of the scheme. Consultation has included:
Release of a consultation paper (August 2008)
· A consultation paper identifying issues supplementary to the COAG
agreement under consideration for inclusion in the first Bill was sent
to invitees ahead of the National Forum held on 4 September 2008.
· The consultation paper was also publicly available on the National
Registration and Accreditation Scheme website -
http://www.nhwt.gov.au/natreg.asp.
· More than 40 submissions were received in response to the
consultation paper, primarily from national and state-based health
professional associations, state and territory health practitioner
registration boards, and health professional education and training
bodies.
State and National Forums (from August to early October 2008)
· Eight State Forums and one National Forum were held to provide an
overview of implementation arrangements for the national scheme,
including the scope of the first stage legislation.
· Around 800 representatives attended the forums, from national, state
and territory stakeholder groups, including from health professional
associations, universities and training organisations, registration
authorities, community organisations, and unions.
Ad hoc meetings with peak representative organisations, including:
· The Professions Reference Group on National Registration and
Accreditation, which is convened by the professions, and comprises
peak professional bodies representing health practitioners in the ten
professional groups to be included initially in the new national
scheme, and consumers.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
· The Registration Reference Group comprising board and registrar
representatives from each of the ten health professions.
Oversight of the project by the following Intergovernmental committees:
· NRAIP Governance Committee comprising Australian Health
Ministers' Advisory Council (AHMAC) members or their deputies.
· AHMAC Health Workforce Principal Committee Practitioner
Regulation sub-committee, comprising senior officials from each
jurisdiction's health department.
While the Bill has been drafted to encompass the COAG agreement,
stakeholder feedback has helped to clarify the practical application of some
terms of the agreement.
There will be ongoing consultation during development of the second stage
legislation that will contain the more substantive elements of the national
scheme. The consultation process will include the release of consultation
papers, national forums on significant policy issues, and the release of an
exposure draft Bill, to ensure that health professionals, registration boards,
education providers, consumers, and other interested parties continue to
have an opportunity to contribute to the implementation of the scheme.
Notes on Preliminary Provisions -
Enactment of National Law Bill and
Application in Queensland
Short title
Clause 1 provides that the short title of the Act is the Health Practitioner
Regulation (Administrative Arrangements) National Law Act 2008 (the Act).
Commencement
Clause 2 provides for a staggered commencement of the Act to allow for
the efficient roll-out of the first stage implementation of the scheme.
In effect, the provisions that provide for the establishment and functioning
of the:
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
· Ministerial Council will commence on assent
· National Agency will commence on 1 February 2009
· National Boards will commence on 1 July 2009
· Advisory Council will commence on a day to be fixed by
proclamation.
Definitions
Clause 3 defines the local application provisions of the Act; that is, the
Queensland-specific provisions (first six clauses). The terms used in the
local application provisions have the same meaning as those of the national
law.
Health Practitioner Regulation (Administrative Arrangements)
National Law
Clause 4 signals that the Act has two parts - the local application
provisions and the national law to be hosted by Queensland.
This clause provides that the national law applies as a law of Queensland.
In so applying, the national law may be referred to as the Health
Practitioner Regulation (Administrative Arrangements) National Law
(Queensland) and is a part of this Act.
Meaning of generic terms in Health Practitioner Regulation
(Administrative Arrangements) National Law for this
jurisdiction
Clause 5 clarifies that the term "this jurisdiction" means Queensland.
Exclusion of legislation of this jurisdiction
Clause 6 expressly excludes Queensland's Acts Interpretation Act 1954,
Financial Administration and Audit Act 1977, and Statutory Bodies
Financial Arrangements Act 1982, from applying to the national law.
Further, Queensland's Public Service Act 2008 does not apply to entities
established under the national law or to staff or members appointed to the
entities.
Instead, tailor-made statutory interpretation, public and financial
accountability, and employment provisions are included in the national law
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
to ensure uniformity and consistency for the national scheme legislation
during this first stage implementation.
Notes on Provisions - National Law
Part 1 Preliminary
Short title
Clause 1 provides for the law to be cited as the Health Practitioner
Regulation (Administrative Arrangements) National Law (the national law).
Commencement
Clause 2 states that the national law is to commence in accordance with the
day or days appointed under section 2 of the Health Practitioner Regulation
(Administrative Arrangements) National Law Act 2008.
Object of law
Clause 3 identifies that the purpose of the national law is to facilitate the
development and implementation of the national registration and
accreditation scheme for health practitioners (the national scheme).
The clause also places an obligation on a person or body with functions
under the national law to have regard to the objectives of the COAG
agreement during this first stage implementation. The objectives are to:
(a) provide for the protection of the public by ensuring that only
practitioners who are suitably trained and qualified to practise in a
competent and ethical manner are registered
(b) facilitate workforce mobility across Australia and reduce `red tape'
for practitioners
(c) facilitate the provision of high quality education and training, and
rigorous and responsive assessment of overseas-trained practitioners
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
(d) have regard to the public interest in promoting access to health
services; and
(e) have regard to the need to enable the continuous development of a
flexible, responsive and sustainable Australian health workforce and
enable innovation in education and service delivery.
The national scheme is to also operate under the following principles set
out in the COAG agreement:
(a) it should operate in a transparent, accountable, efficient, effective and
fair manner
(b) it should ensure that fees and charges are reasonable; and
(c) it should recognise that restrictions on the practice of a profession
should only occur where the benefits of the restriction to the
community as a whole outweigh the costs.
The COAG agreement provides fulsome details of the national scheme, and
may be accessed from either the:
Council of Australian Governments website:
http://www.coag.gov.au/coag_meeting_outcomes/2008-03-26/docs/iga_he
alth_workforce.rtf.
or the National Registration and Accreditation Scheme website:
http://www.nhwt.gov.au/natreg.asp.
Definitions
Clause 4 defines expressions used in the national law. The definition for
Ministerial Council establishes the Council for the national scheme and its
functions are set out in Part 2.
Interpretation generally
Clause 5 provides that Schedule 2 to the Consumer Credit Code appended
to the Consumer Credit (Queensland) Act 1994, applies in relation to the
national law. The schedule contains uniform interpretation provisions of a
kind that are usually contained in the Interpretation Act of a State or
Territory and will provide consistency in interpretation across jurisdictions.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Extraterritorial operation of Law
Clause 6 provides for the extraterritorial operation of the national law.
Part 2 Ministerial Council
Policy directions
Clause 7 provides that the Ministerial Council may give directions to the
National Agency and National Boards about policies to be applied in the
exercise of their statutory functions under the national law.
Approval of health profession standards
Clause 8 states the Ministerial Council may, in anticipation of the scheme
commencing, approve health profession standards for any health profession
(within the national scheme).
A health profession standard is defined as a standard or requirement for a
health profession relating to registration, practice, competency,
accreditation, or continuing professional development.
The Ministerial Council may only approve a health profession standard if it
is recommended by the relevant National Board.
To assist the reader, it should be noted that the development of a health
profession standard will be at arms-length from government. It is a
function of the National Boards to oversee the development of health
profession standards, and to recommend standards to the Ministerial
Council for approval (refer clause 42, functions of National Boards). For
example, a National Board may establish a committee comprising
members with the necessary professional expertise to develop a health
profession standard, or a person or body (such as an accreditation council)
may develop an accreditation standard for a particular health profession if
assigned accreditation functions by the Ministerial Council (refer to clause
9, special arrangements for accreditation). Once developed, the standard is
submitted to the relevant National Board.
Clause 8 also makes provision for the Ministerial Council to request that a
National Board review an approved health profession standard, and the
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Ministerial Council may revoke its approval of an approved standard on the
recommendation of a National Board.
An approved health profession standard has no effect until the national
scheme is fully operational (ie, on 1 July 2010). An approved standard will
be made publicly available.
Special arrangements relating to accreditation
Clause 9 provides that the Ministerial Council may, in anticipation of the
national scheme commencing, appoint a person or body with existing
functions with respect to accreditation, to exercise functions with respect to
accreditation for a health profession under the national scheme.
To assist the reader, the term `person' is defined as including an individual
or a body politic or corporate under the interpretation provisions of
Schedule 2 of the Consumer Credit Code that will apply to this law.
An appointed person or body may develop health profession standards
relating to accreditation (called accreditation standards) for the health
profession in respect of which the person or body is appointed.
Once developed, an accreditation standard is to be submitted to the
National Board established for the relevant health profession for its
consideration.
As set out in clause 8 (approval of health profession standards), the relevant
board recommends the accreditation standard to the Ministerial Council for
approval. The Ministerial Council may only approve a standard if it is
recommended by a National Board. An approved accreditation standard
will not take effect until the national scheme is fully implemented on 1 July
2010.
Clause 9 also provides that an appointed person or body is to ensure there
is wide-ranging consultation with respect to the content of an accreditation
standard, during its development. While consultation is expected to help
inform the content of an accreditation standard, the appointed person or
body will determine the final content of the standard prior to its submission
to a National Board.
To assist the reader, the note at the end of the clause refers to the COAG
agreement making provision for the Ministerial Council to assign
accreditation functions to existing accreditation bodies as a transitional
arrangement. This clause should be read as consistent with this intent.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
How Ministerial Council exercises functions
Clause 10 provides that a direction, approval, recommendation, request, or
appointment by the Ministerial Council is given by resolution of the
Council in accordance with its own procedures.
Acts done by Ministerial Council
Clause 11 states that a certificate that purports to be signed by a member of
the Ministerial Council stating that the Council has done any act or thing or
formed any opinion is, on production, prima facie evidence that the act,
thing, or opinion was done or formed. Further, an act or thing done by the
Ministerial Council does not cease to have effect just because of a change
in membership of the Council.
Notification and publication of directions
Clause 12 requires that a copy of a direction issued by the Ministerial
Council to the National Agency is to be given to the Chairperson of the
Agency Management Committee, or in relation to a direction to a National
Board, is given to the Chairperson of a National Board.
For transparency, such directions must be published on the National
Agency's website (to be developed) and be included in the annual report to
be tabled before the Parliaments of the Commonwealth and participating
jurisdictions.
Participating jurisdiction is defined in clause 4(1) as meaning a jurisdiction
that is a party to the COAG agreement, other than the Commonwealth.
Part 3 Australian Health Workforce
Advisory Council
Establishment of Advisory Council
Clause 13 establishes the Australian Health Workforce Advisory Council
(the Advisory Council).
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
In accordance with commencement clause 2, the provisions for the
Advisory Council (Part 3 and Schedule 1) will commence on a day to be
fixed by proclamation.
Function of Advisory Council
Clause 14 sets out the functions of the Advisory Council.
Publication of advice
Clause 15 requires the Ministerial Council to make arrangements to publish
advice provided by the Advisory Council as soon as practicable after it has
had the opportunity to consider the advice, in accordance with the COAG
agreement.
The Ministerial Council may decline to publish advice (or part thereof) in
the interests of protecting a person's privacy, if so recommended by the
Advisory Council.
Powers of Advisory Council
Clause 16 states that the Advisory Council has the powers necessary to
perform its functions.
Membership of Advisory Council
Clause 17 provides for the appointment of members to the Advisory
Council.
In the first instance, members will be appointed by the Council of
Australian Governments. Subsequent appointments will be made by the
Ministerial Council, consistent with the COAG agreement.
The constitution and procedure of the Advisory Council, including grounds
for vacancy in office and requirements for disclosure of conflicts of
interest, is set out in Schedule 1.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Part 4 Australian Health Practitioner
Regulation Agency
Division 1 National Agency
National Agency
Clause 18 establishes the Australian Health Practitioner Regulation
Agency (the National Agency) as a body corporate with perpetual
succession. The National Agency has a common seal, may sue and be sued
in its corporate name, and has the status, privileges, and immunities of the
State.
In accordance with commencement clause 2, the provisions relating to the
National Agency (Parts 4, 6 and 7 and Schedule 2) will take effect on 1
February 2009.
General powers of National Agency
Clause 19 sets out the general powers of the National Agency.
Principal functions of National Agency
Clause 20 sets out the functions of the National Agency during the first
stage implementation of the national scheme.
The National Agency has a number of operational functions, including
establishing general requirements (or a framework) for the development of
health profession standards. The purpose of this function is to ensure that
the national scheme operates in accordance with good regulatory practice.
This function should not be read as meaning that the National Agency will
undertake the development of the standards.
To assist the reader, the note at the end of the clause identifies functions to
be conferred on the National Agency consistent with the COAG agreement,
once the scheme is fully implemented on 1 July 2010.
Health profession agreements
A function of the National Agency (clause 20(1)(d)) and the National
Boards (clause 42(1)(b)) during the first stage implementation, is to
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
negotiate in good faith and attempt to come to an agreement on the terms of
a health profession agreement for the health profession for which the
National Board is established.
Clause 21 provides that the National Agency may enter into a health
profession agreement with a National Board that provides for:
(a) the profession-specific fees to be payable under the scheme by health
practitioners (from 1 July 2010)
(b) the annual budget of a National Board, including funding
arrangements for board committees and ancillary bodies (ie, a person
or body appointed by the Ministerial Council to exercise accreditation
functions under the national scheme)
(c) services (including human resources) to be provided to the boards by
the agency to enable a board to carry out its functions under the
national scheme.
Should the National Agency and National Boards fail to reach agreement
on any matter relating to a health profession agreement, the Ministerial
Council may give directions as to how the dispute is to be resolved.
Co-operation with participating jurisdictions and the
Commonwealth
Clause 22 enables the National Agency to perform its functions in
co-operation with, or with the assistance of, a person or body of the
Commonwealth, or a participating jurisdiction.
If the National Agency requests information for the purpose of exercising
its functions under the national law, a person or body is authorised to
provide such information to the National Agency for its use under the
national law.
The operation of this provision is subject to any laws of a participating
jurisdiction or the Commonwealth that apply to the release of the requested
information. For example, a state or territory registration board may not
release information on individual registrants to the National Agency until
legislation is passed by that state or territory's Parliament.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Office of National Agency
Clause 23 requires the National Agency to establish a national office - the
location of which is yet to be determined. The National Agency is also to
establish at least one local office in each participating jurisdiction.
Division 2 Agency Management Committee
Agency Management Committee
Clause 24 establishes the Australian Health Practitioner Regulation
Agency Management Committee (the Agency Management Committee)
and provides for the Ministerial Council to appoint members to the
committee.
The constitution and procedure of the Agency Management Committee,
including grounds for vacancy in office and requirements for disclosure of
conflicts of interest, is set out in Schedule 2.
Vacancies to be advertised
Clause 25 requires that a vacancy or vacancies in the membership of the
Agency Management Committee must be publicly advertised before a
member is appointed to the committee by the Ministerial Council.
This requirement is to ensure a transparent process is used for all
appointments to the committee. However, it is not necessary to publicly
advertise a vacancy before appointing a person to act in the office of a
committee member.
To assist the reader, the note at the end of the clause identifies that the
general interpretation provisions applicable to the national law confer
power to appoint acting members (see Schedule 2 to the Consumer Credit
Code appended to the Consumer Credit (Queensland) Act 1994).
Functions of Agency Management Committee
Clause 26 sets out the functions of the Agency Management Committee.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Members to act in public interest
Clause 27 requires members of the Agency Management Committee to act
impartially and place the public interest ahead of any interests of health
practitioners or a representative body or organisation for health
practitioners.
Division 3 Chief executive officer
Chief executive officer
Clause 28 provides for the Agency Management Committee to appoint a
chief executive officer of the National Agency for a period of up to 5 years,
in accordance with the written instrument of appointment. The person
appointed to the position is eligible for reappointment, and is taken to be a
member of staff of the National Agency while holding the office of chief
executive officer.
Functions of chief executive officer
Clause 29 states that the chief executive officer has functions conferred by
the written instrument of appointment of the Agency Management
Committee.
The clause enables the Agency Management Committee to delegate
functions of the agency to the chief executive officer, who in turn, may
sub-delegate functions to any member of staff if so authorised by the
Agency Management Committee.
Vacancy in office
Clause 30 sets out the grounds for vacancy in the office of the chief
executive officer.
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Division 4 Staff and consultants
Staff of National Agency
Clause 31 provides that the National Agency may employ the staff it needs
to perform its functions on such terms and conditions as determined by the
agency from time to time, and subject to any relevant industrial award or
agreement.
Staff seconded to National Agency
Clause 32 provides that the National Agency may make arrangements to
second staff of a government agency of a participating jurisdiction or the
Commonwealth, as needed to perform its functions.
Consultants
Clause 33 provides that the National Agency may engage persons with
suitable qualifications and expertise as consultants on such terms and
conditions as determined by the agency from time to time.
Division 5 Reporting obligations
Progress reports
Clause 34 requires the National Agency to prepare reports on progress
made in implementing the national scheme. The first report will be for the
period 1 February 2009 (when the agency is established) to 30 June 2009,
with subsequent reports being made every six months.
The Ministerial Council may give directions on matters required to be
addressed in the report, and on the manner in which a progress report is to
be prepared.
Progress reports are to be submitted to the Ministerial Council within three
months of the end of the period to which the report relates and the
Ministerial Council may extend the period for submission of a report.
Subclause (7) provides flexibility to combine a progress report for a period
ending 30 June with the annual report for that period.
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It is expected that progress reports will cease once the national scheme is
fully implemented on 1 July 2010.
Annual report
Clause 35 requires the National Agency to prepare an annual report within
three months after the end of each financial year, and submit the annual
report to the Ministerial Council.
For clarity, the inaugural annual report is required to cover the period from
1 February 2009 (when the agency is established) to 30 June 2010.
The Ministerial Council may give directions on matters required to be
addressed in the annual report, and on the manner in which a report is to be
prepared.
The annual report must include a financial statement for the National
Agency and each National Board (note clause 21 requires the agency and
boards to agree an annual budget for each board as part of a health
profession agreement). The financial statements must be audited, and a
report provided by the auditor, in accordance with arrangements approved
by the Ministerial Council.
The Ministerial Council is to make arrangements for the tabling of the
annual report (and the auditor's report) in the Parliaments of each
participating jurisdiction, and the Commonwealth.
The Ministerial Council may extend or further extend the period for
submission of an annual report by a total period of up to three months.
Reporting by National Boards
Clause 36 requires the National Board, on the request of the National
Agency, to provide information the agency requires to compile its annual
report. This information is to include a report on the board's performance
of its functions and a statement of income and expenditure for the period to
which the annual report relates, presented by reference to the budget of the
board for the reporting period.
The National Agency is to incorporate the information provided by the
National Boards in the relevant annual report.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Part 5 National Boards
Division 1 National Boards
Establishment of National Boards
Clause 37 establishes the ten National Boards for the health professions
within the national scheme.
In accordance with commencement clause 2, the provisions relating to the
National Boards (Part 5 and Schedule 3) will take effect on 1 July 2009.
Membership of National Boards
Clause 38 requires a national board to consist of members and a
Chairperson appointed in writing by the Ministerial Council.
Although the size and composition of each National Board may be
determined by the Ministerial Council, a board must consist of at least half,
but not more than two-thirds, of persons appointed as practitioner members
(ie, registered health practitioners from the relevant health profession), and
at least two persons appointed as community members.
Feedback provided by health professional stakeholders on the
recommended size and composition of each National Board will assist the
Ministerial Council make its determination.
The constitution and procedure of the National Boards, including grounds
for vacancy in office and requirements for disclosure of conflicts of
interest, is set out in Schedule 3.
Eligibility for appointment
Clause 39 sets out eligibility requirements that the Ministerial Council is to
have regard to in deciding whether to appoint a person as a member of a
National Board.
Vacancies to be advertised
Clause 40 requires that any vacancy or vacancies in the membership of a
National Board must be publicly advertised before a member is appointed
by the Ministerial Council.
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This requirement is to ensure a transparent process is used for all board
appointments. However, it is not necessary to publicly advertise a vacancy
before appointing a person to act in the office of a board member.
Although the clause states that the National Agency may assist the
Ministerial Council in the process of appointing members (for example, by
making arrangements for the placing of advertisements in the national
press) this should not be read as meaning that the National Agency
determines appointments to the National Boards.
To assist the reader, the note at the end of the clause identifies that the
general interpretation provisions applicable to the national law confer
power to appoint acting members (see Schedule 2 to the Consumer Credit
Code appended to the Consumer Credit (Queensland) Act 1994).
Members to act in public interest
Clause 41 requires members of a National Board to act impartially and
place the public interest ahead of any interests of health practitioners or a
representative body or organisation for health practitioners.
Division 2 Functions and powers of National
Boards
Functions of National Boards
Clause 42 sets out the functions of a National Board, during the first stage
implementation of the national scheme.
To assist the reader, the note at the end of subclause (1) identifies functions
to be conferred on a National Board consistent with the COAG agreement
once the scheme is fully implemented on 1 July 2010.
The note at the end of subclause (3) clarifies that the Ministerial Council
may give to a National Board policy directions or directions to resolve any
dispute about health profession agreements (refer also to clause 21).
However, consistent with the COAG agreement, the Ministerial Council
will not have power to intervene in any registration or disciplinary
decisions relating to individual health practitioners, or decisions relating to
the accreditation of particular courses under the national scheme.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Powers of National Boards
Clause 43 states that a National Board has the powers necessary to enable it
to perform its functions.
Boards may obtain assistance
Clause 44 provides that a National Board may obtain assistance or advice
from a local registration authority or a person or body with knowledge of
matters relating to the health profession for which the board is established,
for the purposes of exercising a board's functions.
Committees
Clause 45 provides that a National Board may establish committees.
If a committee is established to develop a health profession standard, the
standard must be submitted to the National Board for its consideration.
Members of a committee are to be selected and appointed in accordance
with a procedure that is approved by the Ministerial Council.
To assist the reader, the note at the end of subclause (2) clarifies that the
Ministerial Council may only approve a health profession standard if it is
recommended by the National Board (refer also to clause 8, approval of
health profession standards).
Delegation of functions
Clause 46 provides that a National Board may delegate its functions to any
of its committees, or to the National Agency. The Agency Management
Committee may then subdelegate a delegated function to any member of
staff of the Agency.
To clarify, the National Agency cannot perform a function of a National
Board unless so delegated by the board.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Part 6 Finance
Australian Health Practitioner Regulation Agency Fund
Clause 47 establishes the Australian Health Practitioner Regulation
Agency Fund (the Agency Fund), to be administered by the National
Agency.
Payments into Agency Fund
Clause 48 provides for payments into the Agency Fund, during the first
stage implementation of the scheme.
Revenue from registration and other profession-specific fees is not
specified as a payment into the Agency Fund in the first stage
implementation, as fees will not be levied until the scheme is fully
implemented on 1 July 2010.
Payments out of Agency Fund
Clause 49 provides for payments out of the Agency Fund, during the first
stage implementation of the scheme, subject to any direction of the
Ministerial Council.
Investment of money in Agency Fund
Clause 50 provides that the National Agency may invest money in the
Agency Fund, in any manner approved by the Ministerial Council, during
the first stage implementation of the scheme.
Duties of National Agency and Boards with respect to financial
management
Clause 51 imposes duties on the National Agency to ensure its financial
management and operations are efficient, transparent and accountable, and
its financial management practices are subject to appropriate internal
safeguards.
The National Boards, as part of negotiating a health profession agreement
with the National Agency, will have an annual budget (refer clause 21).
This clause therefore requires a National Board to ensure its operations are
efficient, effective, and economical, and takes any necessary action to
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ensure the National Agency is able to comply with its financial
management duties in relation to the funding of a National Board and its
committees.
Part 7 Miscellaneous
General duties of persons engaged in the administration of this
Law
Clause 52 imposes a duty on persons engaged in the administration of the
national law to be accountable for his/her actions and to act honestly and
with integrity when exercising his/her functions.
A person engaged in the administration of the national law is defined under
clause 4(3) to mean a member of the Advisory Council or Agency
Management Committee, a member of staff of the National Agency, or a
member of a National Board or any of its committees.
Duty of confidentiality
Clause 53 imposes a duty of confidentiality on a person engaged in the
administration of the national law, and provides for limited disclosure of
information gained in the course of, or because of, the person's engagement
in the administration of the national law. A maximum penalty of $3,000
may apply to a breach of this clause.
Protection from personal liability
Clause 54 provides that a protected person is not personally liable for any
act or omission done in good faith in exercising a function under the
national law, or in the reasonable belief that the act or omission was the
exercise of a function of the national law. Instead, liability attaches to the
National Agency.
A protected person means a member of the Agency Management
Committee, a member of a National Board or a committee of a National
Board, or a staff member of the National Agency.
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Health Practitioner Regulation (Administrative Arrangements) National Law Bill 2008
Schedule 1 Constitution and procedure of
Advisory Council
Schedule 1 provides for the constitution and procedure of the Australian
Health Workforce Advisory Council - see clause 17.
Schedule 2 Constitution and procedure of
Agency Management Committee
Schedule 2 provides for the constitution and procedure of the Australian
Health Practitioner Regulation Agency Management Committee - see
clause 24.
Schedule 3 Constitution and procedure of
National Boards
Schedule 3 provides for the constitution and procedure of the National
Boards for the health professions regulated under the national scheme - see
clause 38.
© State of Queensland 2008
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