Health Practitioner Regulation National Law Application Act 2024

The Act is principally about legal application, adoption, modification and administrative interface. The key statutory concepts and how the Act treats them are:

• Adoption of a national text: The National Law means the text in the Queensland Schedule as at 10 October 2023, plus particular Queensland 2022 amendments and further amending Acts that satisfy the WA tabling/disallowance and commencement requirements (s 5(1)(a)-(b)). The Act therefore operates by reference, folding the national instrument into WA law while preserving a mechanism to import later Queensland amendments (subject to WA procedures).

• Amending Acts and national regulations: “Amending Act” is defined to capture Queensland Acts enacted after 10 October 2023 that amend the National Law Schedule or the national regulations. An amending Act only has effect for this Part if it is laid before both Houses of the WA Parliament within 18 sitting days and either no notice of disallowance is given or any disallowance notices are withdrawn, discharged or fail (s 7-8). Where that threshold is met, the Governor must proclaim that the amending Act has effect and set the WA commencement timing for its provisions where they already operated in Queensland (s 9).

• Timing and sequencing dependencies: The Act contains specific sequencing rules. If Queensland brings a provision into operation after 10 October 2023 but before WA’s commencement day, there are special rules (s 10); provisions of a Queensland amending Act do not take effect in WA until they have effect under the WA procedures (s 9(3)). National regulations created under provisions that themselves are amending Act provisions do not take effect in WA until the linked amending Act provisions are in effect in WA (s 14).

• Subsidiary legislation status: National regulations are to be treated as subsidiary legislation in WA (s 12). WA requires publication of those national regulations on the WA legislation website within 18 days of their making (s 15), and imposes tabling and disallowance mechanics (s 16). The Interpretation Act 1984 sections 41 and 42 do not apply to the Health Practitioner Regulation National Law Regulation (Western Australia) (s 17).

• Local modifications to substantive content: Part 3 furnishes specific, enumerated changes to the National Law Schedule. Examples: amending the standard in s 3A to “consistent with best practice principles” (s 24); adding “physician” to the table in s 113 (s 25); inserting a new offence regime for restricted birthing practices at new s 123A (s 26); altering mandatory notification wording in s 141 and deleting companion sections 141A-C (ss 27-28); altering the procedural approach to prosecutions by replacing s 242 to make proceedings summary and to remove time limits for certain offences (s 33); deleting ss 246-247 (s 34); and adding a note in s 206 about National Board powers to ask about employment (s 31).

• Responsible tribunal and review route: The State Administrative Tribunal is declared the responsible tribunal in WA for National Law matters (s 19); appeals to SAT are to be handled as reviews under the State Administrative Tribunal Act framework (s 36). The Act also preserves existing review and appeal rights under transitional provisions (Part 5 Division 2).

• Information sharing and criminal histories: The WA Police Commissioner is permitted to provide criminal history information to National Boards directly, or to ACC/police for onward transmission to a National Board, when that information may feed into written reports under the National Law (s 35).

Together these concepts show the Act’s dual function: procedural gating of national amendments/regulations and WA-specific substantive changes to regulatory content. The Act replaces one WA implementing statute with another that contains tailored local choices about transparency, prosecutorial procedure, tribunal responsibility, and the criminalisation/penal regimes for specific professional conduct (for example, restricted birthing practices). Each of those conceptual choices has consequences for transparency, enforcement procedure, practitioner duties and the relationship between WA institutions and the national architecture.

Primary affected actors

• Registered health practitioners in WA across National Law professions: doctors (the Act explicitly links the term “physician” in s 113 replacement, s 25), midwives, nurses and other registered professions governed by the National Law. Practitioners are affected by the WA-specific modifications to the National Law (Part 3), including the new criminal offence for restricted birthing practices (s 26 / new s 123A), the changes to mandatory notification wording (s 27), and the National Board powers referenced (e.g. the s 206 note, s 31).

• Students and trainees: The new restricted birthing practice provision expressly includes students performing restricted birthing practice in the course of approved study or clinical training as an exception (s 26(2)(c)). However students performing care outside those exceptions may risk criminal liability.

• National Boards, the Agency Board and the National Agency: The Act makes explicit that certain bodies are not agencies under the WA Public Sector Management Act and that their employees are not public service officers (s 18(2)). That status change affects governance, employment law, and obligations under WA public sector statutes for board members and staff. National Boards will also receive criminal history information under s 35.

• The State Administrative Tribunal (SAT): SAT is designated the responsible tribunal for WA National Law matters (s 19) and appeals are reframed as reviews under SAT processes (s 36). SAT will therefore hear registration, disciplinary and other review matters under the National Law in WA.

• WA courts of summary jurisdiction and magistrates: The Act defines “magistrate” as per the Magistrates Court Act 2004 for National Law purposes (s 18(1)) and replaces the National Law’s proceedings provision so that offences are to be dealt with by summary proceeding before a court of summary jurisdiction (s 33 / new s 242(1)). That shifts prosecutorial practice into the summary jurisdiction rather than indictable/different processes.

• WA Police Commissioner and police agencies: s 35 authorises the Commissioner of Police to disclose criminal history information to National Boards or via ACC/police to National Boards, for National Law reporting purposes. That creates an operational data-sharing duty on WA police.

• The WA Parliament and executive: The Act requires tabling of amending Acts and national regulations and gives the Houses control through disallowance mechanisms (ss 7-9, 15-16). The Governor must proclaim amending Acts that have effect for WA (s 9), which places an executive implementation step on the WA Government.

Secondary affected actors

• Employers of practitioners: National Boards may ask practitioners for employer details under s 132 as noted in the inserted note to s 206 (s 31). Employers may thereby face scrutiny or report requests.

• Regulatory and oversight bodies: Several WA oversight statutes are expressly excluded from applying to the National Law or instruments made under it (s 22(2)). Entities that would normally be subject to FOI, Auditor General audit, State records, or Parliamentary Commissioner oversight in other contexts when performing National Law functions will have a different legal footing unless the National Law itself applies those Acts.

• Legal practitioners, compliance officers and insurers: Changes to procedural venues, criminal liability (e.g., new s 123A), the treatment of national regulations as subsidiary legislation with particular publication and tabling requirements, and the transitional carry-over of pending matters will affect advice to practitioners and insurers, and risk management practices.

Who pays

• Practitioners face criminal and civil compliance risk: The inserted s 123A carries a maximum penalty of $60,000 or three years imprisonment or both. Practitioners and students who fall outside the specified exceptions bear direct criminal liability risk.

• Employers and trustees may bear compliance costs: responding to National Board inquiries about employment, providing supervision, and modifying scope-of-practice policies for midwives and student practitioners.

• WA Government bears administrative costs: publishing national regulations on the WA legislation website within 18 days (s 15), tabling amending Acts within 18 sitting days (s 7), dealing with potential disallowance motions, and processing Governor’s proclamations when amending Acts take effect (s 9).

In sum, the Act chiefly affects regulated health-practitioner populations and the national governance institutions, while changing information sharing, enforcement venues, and several substantive obligations that will alter compliance behaviour for practitioners and boards.

Duties created, modified or clarified by the Act

• Conduct standard and scope: The Act modifies the National Law Schedule to add a target statutory prohibition on “restricted birthing practice” unless undertaken by a medical practitioner, a midwife, certain students, or a person acting under supervision pursuant to a National Board-approved code or guideline; emergency assistance is also excepted (s 26 / new s 123A). That imposes a statutory duty not to undertake such care outside those exceptions and places a criminal sanction on non-compliance.

• Mandatory notification language: The Act changes how mandatory notifications are expressed in the National Law by deleting s 141(2A) and inserting new wording in s 141 to include a situation where a first health practitioner forms a reasonable belief in the course of providing health services to the second practitioner or student (s 27). Companion provisions (ss 141A-C) are deleted (s 28). Those edits alter the duties of practitioners to notify National Boards about other practitioners’ notifiable conduct and meaningfully affect who must report and when.

• Information disclosure to National Boards: The Act notes in s 206(1) an ability under s 132 of the National Law for a National Board to ask a registered health practitioner whether they are employed by another entity and the employer’s details (s 31). The WA Police Commissioner may give criminal history information to National Boards or via authorised intermediaries (s 35). These provisions give National Boards rights to obtain employment and criminal history information for regulatory use.

• Procedural obligations on the WA Parliament and Executive: The WA Parliament is given processes to table and potentially disallow Queensland amending Acts that the State will treat as having effect for WA (ss 7-9). The Governor must proclaim amending Acts that have effect in WA (s 9). National regulations must be published on the WA legislation website within 18 days (s 15) and laid before each House within 6 sitting days (s 16(1)). Failure to comply with those publication/tabling steps causes the national regulations to cease to have effect in WA (s 16(2)). Those are duties on State institutions to ensure WA’s legislative control over national amendments and regulations.

Rights and protections

• No double punishment: The Act contains a no-double-jeopardy rule: a person is not liable to be punished under the National Law in WA if the same act or omission also constituted an offence in another participating jurisdiction and the person has already been punished under that other jurisdiction’s law (s 21). That is an express protection against duplicate criminal punishments for the same conduct across jurisdictions.

• Responsible tribunal and review rights preserved: The Act designates the State Administrative Tribunal as the responsible tribunal for WA and provides that appeals to SAT are to be handled as reviews under the State Administrative Tribunal Act framework (ss 19, 36). Transitional provisions preserve existing rights of appeal and rights of review and provide for pending matters to be continued under the new Law (Part 5, esp. ss 42-47). Individuals retain the right to seek reviews or appeals under those processes in WA.

• Publication and parliamentary scrutiny: The Act creates parliamentary oversight in WA over which Queensland amending Acts and national regulations will have effect in WA (ss 7-9, 15-16). That framework affords the WA Parliament the right to disallow amending Acts or national regulations in specified circumstances, and requires public publication on the WA legislation website (s 15).

Enforcement routes and procedural changes

• Summary prosecution route: The National Law’s proceedings provision is replaced for WA so that proceedings for offences are to be by summary proceeding before a court of summary jurisdiction (s 33 / new s 242(1)). This changes the tribunal/court route for most National Law offences to the summary jurisdiction in WA. Section 242(2) further provides that proceedings for a Division 10 or certain other offences may be commenced at any time.

• Criminal penalties: The new s 123A sets a maximum penalty for the restricted birthing practice offence of $60,000 or three years’ imprisonment or both (s 26). Other penalties under the National Law remain as in the applied Schedule unless modified by Part 3.

• Information sharing: Under s 35 the Police Commissioner can disclose criminal history information to National Boards for inclusion in reports under the National Law. That operationalises a channel for law enforcement/criminal history data to flow into professional regulation.

Overall, the Act imposes both substantive duties on practitioners (especially around restricted birthing practice and mandatory notification) and procedural duties on State institutions (publication, tabling, proclamation), while preserving rights to review and shielding individuals from double punishment across jurisdictions.

Structure of penalties and the enforcement regime

• Criminalisation of restricted birthing practice: The inserted provision new s 123A creates a defined offence of carrying out a “restricted birthing practice” unless the person is (a) a medical practitioner, (b) a midwife, (c) a student acting in approved study or clinical training, (d) acting under supervision of a medical practitioner or midwife and in accordance with code or guideline requirements approved by the National Board under s 39, or (e) providing emergency assistance (s 26(2)). The maximum penalty stated is $60,000 or three years imprisonment or both (s 26). That makes non-exempt conduct a criminal offence with significant potential custodial exposure.

• Summary prosecutions: The Act replaces the former s 242 with a new s 242 to provide that proceedings for an offence against the Law are to be by way of summary proceeding before a court of summary jurisdiction (s 33 / new s 242(1)). Summary proceedings are typically prosecuted in magistrates courts and follow summary criminal procedure rather than indictable routes. The replacement also allows proceedings for offences in Division 10 of Part 7 or s 196A(1) to be commenced at any time (s 33 / new s 242(2)), which removes time limits for initiating prosecution of those offences.

• Other deleted prosecutorial sections: The Act deletes ss 246 and 247 (s 34) and deletes s 241A (s 32). The content of the deleted provisions is not reproduced here, but the deletion indicates a reworking of the enforcement/penalty procedural architecture in the applied National Law.

Policing and information flows

• Police Commissioner disclosures: The WA Police Commissioner may give criminal history information to a National Board, or to the ACC or another police force for the purpose of those bodies giving the information to a National Board (s 35(2)). The statutory authorisation creates a defined pathway for criminal history data to be used in National Board written reports under the National Law (s 35(1)).

• No double punishment: Section 21 protects individuals from being punished twice under the National Law in WA for conduct already punished under another participating jurisdiction, where the same act or omission constituted that other offence and the person has been punished under that other law.

Enforcement actors and venues

• Prosecutors in summary jurisdiction: With proceedings directed to be summary before courts of summary jurisdiction (magistrates courts), enforcement will be concentrated in the lower criminal courts. The Act defines “magistrate” by reference to the Magistrates Court Act 2004 (s 18(1)), ensuring the correct bench hears National Law offences.

• Responsible tribunal for administrative review: Regulatory discipline, registration and administrative review will be channelled through the State Administrative Tribunal as the responsible tribunal for WA (s 19). Appeals that would otherwise be described as appeals are treated as SAT reviews as provided under the State Administrative Tribunal Act (s 36). That is the administrative enforcement/review venue.

Consequences for regulated persons and organisations

• Exposure to criminal sanction: Practitioners and students who undertake restricted birthing practice outside the prescribed exceptions face a maximum penalty of $60,000 and/or up to three years’ imprisonment (s 26). The criminalisation element heightens enforcement stakes relative to purely administrative discipline.

• Potential for no limitation on certain prosecutions: For specified offences in Division 10 of Part 7 and s 196A(1) a proceeding “may be commenced at any time” (s 33 / new s 242(2)). That removes ordinary limitation periods and means that evidence preservation, record keeping and insurance/time-bar considerations will be affected for those offences.

• Information-based regulatory action: National Boards have a clearer route to criminal history information and employment details, increasing their capacity to take regulatory action based on criminal records and employment relationships (s 31, s 35). The Act therefore strengthens evidence avenues for Boards but raises data-handling and privacy considerations.

Procedural safeguards and parliamentary oversight

• Parliamentary disallowance and publication: The Act’s tabling and disallowance rules for amending Acts and for national regulations (ss 7-9, 15-16) give the WA Parliament oversight over which national amendments/regulations will operate in WA. Publication obligations for national regulations (s 15) also create a formal transparency requirement; failure to publish or table results in the regs ceasing to have effect in WA (s 16(2)).

In short, enforcement moves towards summary criminal processes, introduces significant criminal exposure for a specified set of maternity-care activities, and opens new data-sharing channels for National Boards to obtain criminal histories,while embedding parliamentary and publication controls for national amendments and regulations to be effective in WA.

Hierarchy and conflict

• Primacy of this Act over the applied National Law: The Act expressly provides that if a provision of this Act is inconsistent with the Health Practitioner Regulation National Law (Western Australia), the provision of this Act prevails to the extent of the inconsistency (s 20). That ensures WA’s procedural gates and local modifications are authoritative in WA.

• Exclusion of some WA Acts: The Act states that specified WA Acts do not apply to the Health Practitioner Regulation National Law (Western Australia) or instruments made under it, except as applied under the Law itself: Auditor General Act 2006; Financial Management Act 2006; Freedom of Information Act 1992; Parliamentary Commissioner Act 1971; Public Sector Management Act 1994; State Records Act 2000 (s 22(2)). The Interpretation Act 1984 is also declared not to apply (s 22(1) and s 17). That changes normal statutory cross-application expectations and affects administrative law remedies and oversight routes.

• Limited application back to WA public sector bodies: Section 22(3) clarifies that an Act mentioned in s 22(2) does apply to a public sector body (as defined in the Public Sector Management Act) and an employee of that body when performing a function under the Health Practitioner Regulation National Law (Western Australia). Thus, the carve-out is not absolute: when a WA public sector body performs functions under the National Law, the excluded Acts can bite.

National amendments and regulations,sequencing across jurisdictions

• Dependence on Queensland commencement: The Act imports the National Law as in force in Queensland on 10 October 2023 and thereafter allows certain Queensland amending Acts and regulations to have effect in WA only if they go through the WA tabling/disallowance and proclamation process (ss 5-9, 12-16). If a provision of the Queensland amending Act has not come into operation in Queensland before the Governor’s proclamation that the amending Act has effect in WA, the provision comes into operation for WA when it comes into operation in Queensland (s 9(3)). For national regulations made for purposes of an amending Act provision, they do not have effect in WA until the later of the amending Act provision coming into operation for WA or the day the subsidiary provision comes into operation in Queensland (s 14(2)). These provisions create a temporal linkage and potential sequencing lag between Queensland action and WA effect.

• Parliamentary oversight and disallowance: WA’s Houses of Parliament have capacity to disallow amending Acts or national regulations by notice and resolution within defined sitting-day windows (ss 8, 16). The notice periods, disallowance periods and the definition of how those periods run through prorogation/dissolution are specified (ss 8(3), 16(6)). This gives WA Parliament control in practice over whether national changes will apply in WA.

Transitional interaction with the repealed WA Act

• Continuity and savings: The Act repeals the earlier WA implementing Act (s 38) but provides that pending matters, existing applications, rights of review and appeal, existing prosecutions, and amounts payable under the former Law continue under the new Law as if they arose under the corresponding provisions of the new Law (ss 42-48). The Interpretation Act 1984 provisions about repeal and substitution are applied with specified exceptions (s 40). Transitional local regulations may be made within two years to handle matters not sufficiently covered by the transitional provisions (s 49).

Administrative interface and oversight implications

• National Boards and employment information: The inserted note to s 206 clarifies that under s 132 a National Board may ask a registered health practitioner about employment by another entity and employer details (s 31). That interacts with employment law, privacy law and potentially with any WA public sector and FOI carve-outs in s 22.

• Information sharing and FOI: The Freedom of Information Act 1992 is among the Acts excluded from applying to the National Law in WA (s 22(2)(c)). This affects stakeholders seeking access to documents held by National Boards and the National Agency in WA unless the National Law itself provides for FOI-like processes. However, s 22(3) makes an exception where a public sector body performs a function under the National Law.

Consequently, the Act creates a controlled point of contact between WA’s statutory oversight and the national regulatory system, permits WA parliamentary control of which national changes apply locally, and creates specific data-sharing channels while narrowing some conventional oversight routes (subject to exceptions). The sequencing rules create an inter‑jurisdictional dependency that can delay or withhold the local operation of national amendments or regulations.

Textual sources of the adopted National Law and the mechanism for future amendments

• Base date for the applied text: WA adopts the National Law text as it stood on 10 October 2023 (s 5(1)). That is the baseline; the Schedule to the Queensland Act as in force on that date is the starting point for WA’s National Law.

• Specified Queensland amendments included: The Act expressly includes the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Queensland) Chapter 3 Parts 7, 8, 13, 21 (other than s 93 to the extent it was already in force on 10 October 2023), Parts 29 and 30 and ss 117(2), 124, 127 and 128, when those provisions come into operation in WA under s 6(2) (s 5(1)(a)). Those inclusions were identified by the Act to ensure particular 2022 Queensland amendments are folded in.

• Later Queensland amending Acts: The Act defines “amending Act” (s 3(1)) as a Queensland Act receiving Royal Assent after 10 October 2023 that amends the National Law Schedule or the national regulations. Such amending Acts can have effect for WA but only if they are laid before both Houses of the WA Parliament within 18 sitting days (s 7) and survive the disallowance process set out in s 8. If they meet those requirements, the Governor is to proclaim them as having effect (s 9).

• Timing rules for provisions that have already commenced in Queensland: If an amending Act provision has come into operation in Queensland before the WA proclamation, the Governor’s proclamation must fix a day for the provision to come into operation for WA that is after the proclamation publication (s 9(2)). If the provision had not come into operation in Queensland before proclamation, it comes into operation for WA when it comes into operation in Queensland (s 9(3)). These rules were designed to prevent out-of-sync commencement.

• Special handling of amending Acts enacted in the window: If an amending Act receives Royal Assent after 10 October 2023 but before WA’s commencement day, the tabling and proclamation rules apply as if the Act had received Royal Assent on commencement day (s 10). This maintains a clear start point for WA’s application window.

WA-specific modifications and deletions (Part 3)

• Part 3 contains the WA modifications to the National Law Schedule. These include both minor textual edits (for example, changing “medical practitioner” to “medical practitioner, physician” at s 113, s 25) and substantive insertions/deletions (for example, inserting new s 123A on restricted birthing practices, deleting ss 141A-141C, replacing s 242 with a summary proceedings model, deleting ss 246-247). Each change is set out in the Act and forms the amendment history for the National Law as applied in WA.

Commencement and compilation details

• Commencement schedule: The Act’s own Part 1 sets the commencement sequencing. Part 1 commences on assent day, section 29 has special tied commencement rules linked to a specified Queensland provision (s 2), and the rest of the Act commences the day after assent day (s 2). The compilation table in the Act records the Act’s assent date (14 May 2024) and the various commencement days (compilation table and s 2).

• Transitional regulatory power: The Act authorises local regulations to handle transitional matters within two years of commencement (s 49(4)). That allows the WA executive to make temporary or saving modifications necessary to smooth the transfer from the repealed Act to the new application.

In short, the amendment history for WA’s adoption is twofold: a cut-off baseline (10 October 2023) and a controlled gateway for importing subsequent Queensland amendments and national regulations into WA, via the tabling, disallowance and proclamation mechanisms the Act prescribes.

Source-grounded position on litigation

• No cases in the source: The provided Act text does not include or cite any judicial decisions concerning the Health Practitioner Regulation National Law Application Act 2024 (WA) or the WA modifications to the National Law. Therefore there is no litigation history recorded in the source material for this Act.

Transitional litigation-relevant provisions

• Pending matters and continuity: The Act provides that pending matters (defined broadly as notifications, claims, assessments, proceedings, disputes or other matters commenced under the former Law before commencement day that are pending) continue under the new Law and must be dealt with as if they arose under the new Law (s 42(2)-(4)). This treatment preserves ongoing litigation/disciplinary processes, appeals and reviews in their transfer to the new statutory framework.

• Existing appeals and reviews preserved: Sections 44-47 preserve existing applications for accreditation/registration, rights of review and appeal, and undecided reviews and appeals, transferring them into the new Law’s regime and directing that the corresponding provisions of the new Law govern continuing matters. For example, a person who had a not-yet-expired right to appeal under the former Law section 199 retains that right and may start an appeal within the original period (s 46).

Procedural venue changes that affect litigation

• SAT as responsible tribunal: The Act designates the State Administrative Tribunal as the responsible tribunal for WA for National Law matters (s 19) and converts references to appeals to SAT into references to reviews under the State Administrative Tribunal Act (s 36). For litigation this converts the forum of review and the applicable procedural statutes; practitioners should expect review matters to proceed under SAT’s statutory framework.

• Summary criminal proceedings: The replacement of s 242 makes proceedings for National Law offences summary proceedings before courts of summary jurisdiction (s 33 / new s 242(1)). That shifts criminal prosecutions into the magistrates courts, with attendant procedural consequences for evidence, committal, and sentencing.

Implications for future litigation

• Potential for constitutional or administrative litigation: The Act’s exclusion of certain WA oversight statutes from applying to the National Law (s 22(2)) may give rise in future to challenges or judicial review litigation about the precise reach of those exclusions, particularly where public sector bodies exercise functions under the National Law and the interplay in s 22(3) applies. The Act itself does not record such litigation; the point is an observable area of legal interaction that could produce future cases.

• Data sharing and privacy disputes: The authorisation for police to provide criminal history information to National Boards (s 35) and for National Boards to seek employment details (s 31) create an operational interaction with privacy and information-claims regimes. Disputes about the scope or propriety of such disclosures may form future litigation grounds.

Because the Act is new in this text and the source includes comprehensive transitional protections for pending matters (ss 42-48), the current litigation position is one of procedural continuity with altered venues and some new substantive offences; the source does not report any judicial decisions.

Concrete practical pitfalls and traps in the text

• Timing and sequencing traps for national regulations and amending Acts: WA’s application of later Queensland amending Acts and national regulations depends on several timing gates. An amending Act must be laid before both Houses within 18 sitting days (s 7) and either avoid notice of disallowance or see such notices fail/withdraw (s 8). The Governor must then proclaim the amending Act has effect for WA and set commencement days for any provisions that already commenced in Queensland (s 9). National regulations tied to amending Act provisions do not take effect in WA until both the amending Act provision has come into operation for WA and the national regulation has come into operation in Queensland (s 14). Practically this means: a regulation may be in force in Queensland but not in WA until WA completes the tabling and proclamation processes, and failure to publish national regulations on the WA legislation website within 18 days (s 15) or to table them within 6 sitting days (s 16(1)) causes them to cease to have effect in WA (s 16(2)). Regulatory actors should not assume immediate WA application of national changes.

• Publication lapse causes invalidity: National regulations must be published on the WA legislation website within 18 days of being made (s 15(2)). If this does not happen or if the regulations are not laid before Parliament in the designated window, the regulations cease to have effect in WA (s 16(2)(a)-(b)). That places an operational burden on WA’s legislative drafters/administrators and creates a legal risk that a national regulation intended to apply may be ineffective in WA due to publication or tabling oversight.

• Parliaments’ disallowance mechanics are technical: Notice and disallowance periods are defined by sitting days and continue to run through prorogation or dissolution (ss 8(3), 16(6)). Failure to monitor those timelines may result in an amending Act that was expected to have effect failing to do so.

• The FOI/oversight exclusion and the public sector carve-out: Section 22(2) excludes a set of WA oversight statutes (including FOI and Auditor General) from applying to the National Law and instruments under it, but s 22(3) reinstates those Acts where a public sector body (as defined in WA law) and its employees perform a function under the National Law. The practical risk is misclassifying an entity and misreading which oversight/FOI obligations apply. National Agency personnel, National Board employees and Agency Board members are by s 18(2) declared not to be agencies/public service officers; that reduces their exposure to some WA public sector obligations. Organisations should confirm whether they are a WA public sector body performing National Law functions before assuming FOI or audit applies.

• Criminal liability for restricted birthing practice is broad and draws in supervisory regimes: The new s 123A defines “restricted birthing practice” as managing the three stages of labour (or part of those stages) and criminalises performing that practice unless in stated categories or under approved codes/guidelines (s 26). The supervision exception requires compliance with “any requirements set out in a code or guideline approved, under section 39, by the National Board” (s 26(2)(d)). Practitioners relying on supervision must therefore ensure supervisors comply with those codes/guidelines, and National Boards must have clear approved instruments in place. Missing or ambiguous codes could expose supervisees and supervisors to liability.

• Changes to mandatory notification wording and deletion of companion sections: Section 141 is amended (s 27) and ss 141A-C are deleted (s 28). Because those deletions remove provisions that previously explained or qualified mandatory notification obligations, practitioners and employers should not assume the same reporting thresholds and procedures remain. The amended text adds an explicit pathway for a practitioner to form a reasonable belief in the course of providing services to another practitioner or student; that may expand reporting duties among colleagues. Legal advice or close reading of the new National Law text as modified is required to avoid under-reporting.

• Summary prosecution and limitation-period consequences: By making most offences summary proceedings and allowing some offences to be commenced at any time (s 33 / new s 242(2)), the Act changes the temporal risk profile for prosecutions. Where a prosecution can be commenced at any time, practitioners cannot rely on ordinary limitations to bar late prosecutions. Records retention and the availability of evidence years after an event become important.

• Potential for confusion about agency and employment status: Section 18(2) states the Agency Board, the National Agency and National Boards are not “agencies” under the Public Sector Management Act, and their employees are not public service officers. That has employment law consequences (for example, in relation to disciplinary procedures and industrial entitlements) and may affect practitioners employed by such entities. Employers and boards should assess employment contracts, industrial instruments and HR processes to ensure they reflect the statutory positioning.

• Transitional regulation window: Transitional local regulations may be made only within two years of commencement (s 49(4)). If a transitional matter is not addressed within that two-year window, the Act’s default transitional provisions will govern, and parliamentary/regulatory actors will not have the full range of flexible local regulation-making power after that window closes.

These gotchas identify operational and legal risks stemming from timing requirements, publication and tabling duties, the carve-out of oversight Acts, criminalisation of particular professional conduct, and procedural changes to prosecutions and reviews.

Practical, source-grounded compliance steps for affected actors

For registered practitioners, midwives and students

• Review scope-of-practice rules and supervision arrangements: Practitioners who may be involved in labour and birth must immediately review whether their activities fall within the new concept of “restricted birthing practice” (s 26). If a practitioner is not a medical practitioner or midwife, they must ensure they operate only within the student exceptions or strictly under supervision per an approved code or guideline (s 26(2)(c)-(d)). Confirm that any supervisor’s conduct and the supervisory arrangement comply with a National Board-approved code or guideline made under s 39, and keep documentary evidence of that supervision.

• Update internal policies and training: Employers and clinical supervisors should update workplace policies, clinical governance systems and training to reflect the new offence and the changed mandatory notification rules (s 27). Ensure staff know the consequence of performing restricted birthing practice outside the permitted categories.

• Maintain records and evidence: Given the summary prosecution route and the potential for some offences to be commenced at any time (s 33 / new s 242(2)), retain clinical, supervision and employment records in accordance with professional record-keeping obligations and in a way that supports later investigation or defence.

• Understand mandatory reporting obligations: Review the amended s 141 wording and the deletions of ss 141A-C (ss 27-28) to understand when a practitioner must form a reasonable belief and notify a National Board. Implement internal reporting pathways so disclosures escalate to the registered practitioner or employer responsible for notification.

For National Boards, the Agency and WA executive departments

• Ensure publication and tabling compliance: National regulations that will apply in WA must be published on the WA legislation website within 18 days of their making (s 15(2)) and laid before both Houses within 6 sitting days of publication (s 16(1)). Prepare administrative processes and checklists to guarantee those publication and tabling steps are completed; failure results in the regulation ceasing to have effect in WA (s 16(2)).

• Prepare for Governor proclamations: The Governor must proclaim amending Acts that have effect for WA (s 9(1)). Agencies should coordinate with Parliamentary Services to ensure amending Acts are tabled and that proclamation-ready materials are timely supplied to the Executive.

• Operationalise data-sharing channels: WA Police and National Boards should establish secure, auditable procedures for the transmission of criminal history information as authorised by s 35. Ensure compliance with relevant privacy and data security standards; document the legal basis for each disclosure and receipt.

• Document employment enquiries: National Boards should implement lawful processes to ask practitioners about employment and employer details consistent with s 206 note and s 132 of the National Law. Ensure records are handled under appropriate privacy safeguards.

For employers and health service providers

• Update employment contracts, supervision and indemnity arrangements: Employers must ensure that contracted clinicians, midwives and student placements are legally authorised to undertake the clinically assigned tasks and that supervision meets any codes/guidelines required by National Boards (s 26(2)(d)). Review indemnity and professional indemnity insurance coverage in light of the new criminal exposure for restricted birthing practice.

• Confirm status of organisational entities: Determine whether your organisation is a “public sector body” for the purpose of s 22(3) (because if it is, excluded WA Acts may nevertheless apply when performing a function under the National Law). If the organisation is an Agency Board, National Agency or National Board, note s 18(2) which declares those bodies are not agencies under the Public Sector Management Act and their employees not public service officers.

For legal advisers and compliance teams

• Map transitional matters: For any accreditation, registration, review, appeal or enforcement matter that was pending under the former Law, map how it will continue under the new Law in accordance with ss 42-47. File appeals or reviews within preserved timeframes and ensure records of the original proceeding are transferred to the new Law context.

• Advise on statutory interplay: Counsel clients about the limited application of FOI, Auditor General, State Records and Public Sector Management Acts to the National Law in WA (s 22(2)), and advise when those Acts nevertheless apply because a public sector body is performing a function under the National Law (s 22(3)). This requires fact-specific analysis.

• Monitor amending Act and regulations timetable: Track Queensland legislative activity on the National Law and the WA tabling/disallowance windows to know when particular national changes will or will not apply in WA. Ensure clients understand that a regulation made in Queensland may not yet be in force in WA because of the sequencing rules in ss 9 and 14.

Governance and record-keeping measures to adopt now

• Create a statutory compliance checklist that covers: whether an activity could be considered restricted birthing practice; whether supervisory codes/guidelines have been approved by the relevant National Board; the need to retain supervision agreements and evidence; the location and custodianship of clinical records; the internal process for identifying and triggering mandatory notifications under amended s 141; and the retention schedule for documents that may be used in summary prosecutions.

• Set up liaison lines with police and National Boards for criminal-history disclosures: Establish memoranda of understanding or standard operating procedures with WA Police about the mechanics of s 35 disclosures, including secure transmission, receipt acknowledgements and data-retention rules.

• Train supervisors and managers: Provide targeted training to midwives, medical practitioners who supervise, and managers responsible for student clinical placements so supervisory obligations under any approved codes/guidelines are fully understood and documented.

The Act provides specific procedural timeframes and substantive prohibitions. Compliance therefore requires active monitoring of national instruments as they are made in Queensland and as they are published and tabled in WA, plus workplace and supervision changes to align clinical practice with the new criminal prohibition and modified notification duties.