Div 1National Agency

Division 1—National Agency 23—National Agency (1) The Australian Health Practitioner Regulation Agency is established. (2) The National Agency— (3) The National Agency represents the State. (4) Schedule 3 sets out provisions relating to the National Agency. 24—General powers of National Agency The National Agency has all the powers of an individual and, in particular, may— (a) enter into contracts; and (b) acquire, hold, dispose of, and deal with, real and personal property; and (c) do anything necessary or convenient to be done in the exercise of its functions. 25—Functions of National Agency The functions of the National Agency are as follows— (a) to provide administrative assistance and support to the National Boards, and the Boards' committees, in exercising their functions; (b) in consultation with the National Boards, to develop and administer procedures for the purpose of ensuring the efficient and effective operation of the National Boards; (c) to establish procedures for the development of accreditation standards, registration standards and codes and guidelines approved by National Boards, for the purpose of ensuring the national registration and accreditation scheme operates in accordance with good regulatory practice; (d) to negotiate in good faith with, and attempt to come to an agreement with, each National Board on the terms of a health profession agreement; (e) to establish and administer an efficient procedure for receiving and dealing with applications for registration as a health practitioner and other matters relating to the registration of registered health practitioners; (f) in conjunction with the National Boards, to keep up-to-date and publicly accessible national registers of registered health practitioners for each health profession; (g) in conjunction with the National Boards, to keep up-to-date national registers of students for each health profession; (h) to keep an up-to-date and publicly accessible list of approved programs of study for each health profession; (i) to establish an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioners and persons who are students, including by establishing a national process for receiving notifications about registered health practitioners in all professions; (j) to give advice to the Ministerial Council on issues relating to the national registration and accreditation scheme; (k) if asked by the Ministerial Council, to give to the Ministerial Council the assistance or information reasonably required by the Ministerial Council in connection with the administration of the national registration and accreditation scheme; (ka) to do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme; (l) any other function given to the National Agency by or under this Law. 26—Health profession agreements (1) The National Agency must enter into an agreement (a health profession agreement) with a National Board that makes provision for the following— (a) the fees that will be payable under this Law by health practitioners and others in respect of a health profession for which the Board is established (including arrangements relating to refunds of fees, waivers of fees and additional fees for late payment); (b) the annual budget of the National Board (including the funding arrangements for its committees and accreditation authorities); (c) the services to be provided to the National Board by the National Agency to enable the National Board to carry out its functions under this Law. (2) If the National Agency and a National Board are unable to agree on a matter relating to a health profession agreement or a proposed health profession agreement, the Ministerial Council may give directions to the National Agency and National Board about how the dispute is to be resolved. (3) Each National Board must publish on its website the fees for which provision has been made in a health profession agreement between the Board and the National Agency. 27—Co-operation with participating jurisdictions and Commonwealth (1) The National Agency may exercise any of its functions in co-operation with or with the assistance of a participating jurisdiction or the Commonwealth, including in co-operation with or with the assistance of any of the following— (a) a government agency of a participating jurisdiction or of the Commonwealth; (b) a local registration authority; (c) a co-regulatory authority; (d) a health complaints entity; (e) an educational body or other body established by or under a law of a participating jurisdiction or the Commonwealth. (2) In particular, the National Agency may— (a) ask an entity referred to in subsection (1) for information that the Agency requires to exercise its functions under this Law; and (b) use the information to exercise its functions under this Law. (3) An entity referred to in subsection (1) that receives a request for information from the National Agency is authorised to give the information to the National Agency. 28—Office of National Agency (1) The National Agency is to establish a national office. (2) The National Agency is also to establish at least one local office in each participating jurisdiction. Division 2—Agency Board 29—Agency Board (1) The Australian Health Practitioner Regulation Agency Board is established. (2) The Agency Board is to consist of at least 5 members appointed by the Ministerial Council. (3) Of the members— (a) one is to be a person appointed by the Ministerial Council as Chairperson, being a person who— (i) is not a registered health practitioner; and (ii) has not been registered as a health practitioner under this Law or a corresponding prior Act within the last 5 years; and (b) at least 2 others are to be persons who have expertise in health, or education and training, or both; and (c) at least 2 others are to be persons who are not current or former registered health practitioners and who have business or administrative expertise. (4) Schedule 2 sets out provisions relating to the Agency Board. 30—Functions of Agency Board (1) The functions of the Agency Board are as follows— (a) subject to any directions of the Ministerial Council, to decide the policies of the National Agency; (b) to ensure that the National Agency performs its functions in a proper, effective and efficient way; (c) any other function given to the Board by or under this Law. (2) The affairs of the National Agency are to be controlled by the Agency Board and all acts and things done in the name of, or on behalf of, the National Agency by or with the authority of the Agency Board are taken to have been done by the National Agency. Part 5—National Boards Division 1—National Boards 31—Regulations must provide for National Boards (1) The regulations must provide for a National Health Practitioner Board for each health profession. (2) The regulations may— (a) continue an existing Board for a health profession; or (b) establish a Board for a health profession or for 2 or more health professions; or (c) dissolve a Board for a health profession (the dissolved Board) if another Board is established for that health profession (the replacement Board). (3) The regulations may provide for anything for which it is necessary or convenient to make provision to allow, facilitate or provide for the following— (a) the continuation, establishment or dissolution of a Board under subsection (2); (b) the completion of a matter started by the existing Board before the commencement; (c) the effect of anything done by an existing Board before the commencement; (d) the transfer of matters from a dissolved Board to a replacement Board. (4) Before a regulation is made under subsection (2)(b) or (c), the Ministers comprising the Ministerial Council must undertake public consultation on the proposed regulation. (5) However, failure to comply with subsection (4) does not affect the validity of the regulation. (6) In this section— existing Board means a National Health Practitioner Board in existence immediately before the commencement. 31A—Status of National Board (1) A National Board— (2) A National Board represents the State. 32—Powers of National Board (1) Subject to subsection (2), a National Board has the powers necessary to enable it to exercise its functions. (2) A National Board does not have power to— (a) enter into contracts; or (b) employ staff; or (c) acquire, hold, dispose of, and deal with, real property. (3) The National Board may exercise any of its functions in co-operation with or with the assistance of a participating jurisdiction or the Commonwealth, including in co-operation with or with the assistance of any of the following— (a) a government agency of a participating jurisdiction or of the Commonwealth; (b) a local registration authority; (c) a co-regulatory authority; (d) a health complaints entity; (e) an educational body or other body established by or under a law of a participating jurisdiction or the Commonwealth. (4) In particular, the National Board may— (a) ask an entity referred to in subsection (3) for information that the Board requires to exercise its functions under this Law; and (b) use the information to exercise its functions under this Law. (5) An entity referred to in subsection (3) that receives a request for information from the National Board is authorised to give the information to the National Board. 33—Membership of National Boards (1) A National Board is to consist of members appointed in writing by the Ministerial Council. (2) Members of a National Board are to be appointed as practitioner members or community members. (3) Subject to this section, the Ministerial Council may decide the size and composition of a National Board. (4) At least half, but not more than two-thirds, of the members of a National Board must be persons appointed as practitioner members. (5) The practitioner members of a National Board must consist of— (a) at least one member from each large participating jurisdiction; and (b) at least one member from a small participating jurisdiction; and (c) if the National Board is established for 2 or more health professions—at least one member of each health profession for which the Board is established. (6) At least 2 of the members of a National Board must be persons appointed as community members. (7) At least one of the members of a National Board must live in a regional or rural area. (8) A person cannot be appointed as a member of a National Board if the person is a member of the Agency Board. (9) One of the practitioner members of the National Board is to be appointed as Chairperson of the Board by the Ministerial Council. (9A) The regulations may prescribe matters relating to the composition of practitioner members for a National Board established for 2 or more health professions. (10) Schedule 4 sets out provisions relating to a National Board. (11) In this section— large participating jurisdiction means any of the following States that is a participating jurisdiction— (a) New South Wales; (b) Queensland; (c) South Australia; (d) Victoria; (e) Western Australia. small participating jurisdiction means any of the following States or Territories that is a participating jurisdiction— (a) the Australian Capital Territory; (b) the Northern Territory; (c) Tasmania. 34—Eligibility for appointment (1) In deciding whether to appoint a person as a member of a National Board, the Ministerial Council is to have regard to the skills and experience of the person that are relevant to the Board's functions. (2) A person is eligible to be appointed as a practitioner member only if the person is a registered health practitioner in a health profession for which the Board is established. (3) A person is eligible to be appointed as a community member only if the person is not, and has not at any time been, a health practitioner in a health profession for which the Board is established. (4) A person is not eligible to be appointed as a member of a National Board if— (a) in the case of appointment as a practitioner member—the person has, whether before or after the commencement of this Law, as a result of the person's misconduct, impairment or incompetence, ceased to be registered as a health practitioner in a health profession for which the Board is established; or (b) in any case, the person has, at any time, been found guilty of an offence (whether in a participating jurisdiction or elsewhere) that, in the opinion of the Ministerial Council, renders the person unfit to hold the office of member. Division 2—Functions of National Boards 35—Functions of National Boards (1) The functions of a National Board established for a health profession are as follows— (a) to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession; (b) to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession; (c) to develop or approve standards, codes and guidelines for the health profession, including— (i) the approval of accreditation standards developed and submitted to it by an accreditation authority; and (ii) the development of registration standards for approval by the Ministerial Council; and (iii) the development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession; (d) to approve accredited programs of study as providing qualifications for registration or endorsement in the health profession; (e) to oversee the assessment of the knowledge and clinical skills of overseas trained applicants for registration in the health profession whose qualifications are not approved qualifications for the profession, and to determine the suitability of the applicants for registration in Australia; (f) to negotiate in good faith with, and attempt to come to an agreement with, the National Agency on the terms of a health profession agreement; (g) to oversee the receipt, assessment and investigation of notifications about persons who— (i) are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act; or (ii) are students in the health profession; (h) to establish panels to conduct hearings about— (i) health and performance and professional standards matters in relation to persons who are or were registered in the health profession under this Law or a corresponding prior Act; and (ii) health matters in relation to students registered by the Board; (i) to refer matters about health practitioners who are or were registered under this Law or a corresponding prior Act to responsible tribunals for participating jurisdictions; (j) to oversee the management of health practitioners and students registered in the health profession, including monitoring conditions, undertakings and suspensions imposed on the registration of the practitioners or students; (k) to make recommendations to the Ministerial Council about the operation of specialist recognition in the health profession and the approval of specialties for the profession; (l) in conjunction with the National Agency, to keep up-to-date and publicly accessible national registers of registered health practitioners for the health profession; (m) in conjunction with the National Agency, to keep an up-to-date national register of students for the health profession; (n) at the Board's discretion, to provide financial or other support for health programs for registered health practitioners and students; (o) to give advice to the Ministerial Council on issues relating to the national registration and accreditation scheme for the health profession; (p) if asked by the Ministerial Council, to give to the Ministerial Council the assistance or information reasonably required by the Ministerial Council in connection with the national registration and accreditation scheme; (q) to do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme; (r) any other function given to the Board by or under this Law. (2) For the purposes of subsection (1)(g)—(j), the Board's functions do not include receiving notifications and taking action referred to in those paragraphs in relation to behaviour by a registered health practitioner or student that occurred, or is reasonably believed to have occurred, in a co‑regulatory jurisdiction. 36—State and Territory Boards (1) A National Board may establish a committee (a State or Territory Board) for a participating jurisdiction to enable the Board to exercise its functions in the jurisdiction in a way that provides an effective and timely local response to health practitioners and other persons in the jurisdiction. (2) A State or Territory Board is to be known as the "[Name of participating jurisdiction for which it is established] Board" of the National Board. (3) The members of a State or Territory Board are to be appointed by the responsible Minister for the participating jurisdiction. (a) The Pharmacy Board of Australia decides to establish a State or Territory Board for New South Wales. The State or Territory Board will be known as the New South Wales Board of the Pharmacy Board of Australia. The members of the State or Territory Board will be appointed by the responsible Minister for New South Wales. (b) The Podiatry Board of Australia decides to establish a State or Territory Board for Queensland and the Northern Territory. The State or Territory Board will be known as the Queensland and Northern Territory Board of the Podiatry Board of Australia. The members of the State or Territory Board will be appointed jointly by the responsible Ministers for Queensland and the Northern Territory. (4) In deciding whether to appoint a person as a member of a State or Territory Board, the responsible Minister is to have regard to the skills and experience of the person that are relevant to the Board's functions. (5) At least half, but not more than two-thirds, of the members of a State or Territory Board must be persons appointed as practitioner members. (6) At least 2 of the members of a State or Territory Board must be persons appointed as community members. See section 299 which provides that subsections (5) and (6) do not apply to a State or Territory Board for a jurisdiction for the first 12 months after the jurisdiction becomes a participating jurisdiction. (7) Before a responsible Minister appoints a member of a State or Territory Board the vacancy to be filled is to be publicly advertised. (8) The National Agency may assist a responsible Minister in the process of appointing members of a State or Territory Board, including in the advertising of vacancies. (9) It is not necessary to advertise a vacancy in the membership of a State or Territory Board before appointing a person to act in the office of a member. The general interpretation provisions applicable to this Law under section 6 confer power to appoint acting members of a State or Territory Board. (10) This section does not limit clause 11 of Schedule 4. Clause 11 of Schedule 4 confers power for the establishment of other committees. 37—Delegation of functions (1) A National Board may delegate any of its functions, other than this power of delegation, to— (a) a committee; or (b) the National Agency; or (c) a member of the staff of the National Agency; or (d) a person engaged as a contractor by the National Agency. (2) The National Agency may subdelegate any function delegated to the National Agency by a National Board to a member of the staff of the National Agency. Division 3—Registration standards and codes and guidelines 38—National Board must develop registration standards (1) A National Board must develop and recommend to the Ministerial Council one or more registration standards about the following matters for a health profession for which the Board is established— (a) requirements for professional indemnity insurance arrangements for registered health practitioners registered in the profession; (b) matters about the criminal history of applicants for registration in the profession, and registered health practitioners and students registered in a health profession for which the Board is established, including, the matters to be considered in deciding whether an individual's criminal history is relevant to the practice of the profession; (c) requirements for continuing professional development for registered health practitioners registered in the profession; (d) requirements about the English language skills necessary for an applicant for registration in the profession to be suitable for registration in the profession; (e) requirements in relation to the nature, extent, period and recency of any previous practice of the profession by applicants for registration in the profession. (2) Subject to subsection (3), a National Board may also develop, and recommend to the Ministerial Council, one or more registration standards about the following— (a) the physical and mental health of— (i) applicants for registration in the profession; and (ii) registered health practitioners and students; (b) the scope of practice of health practitioners registered in the profession; (c) any other issue relevant to the eligibility of individuals for registration in the profession or the suitability of individuals to competently and safely practise the profession. (3) A registration standard may not be about a matter for which an accreditation standard may provide. An accreditation standard for a health profession is used to assess whether a program of study, and the education provider that provides the program of study, provide persons who complete the program with the knowledge, skills and professional attributes to practise the profession. Accreditation standards are developed and approved under Division 3 of Part 6. 39—Codes and guidelines A National Board may develop and approve codes and guidelines— (a) to provide guidance to the health practitioners it registers; and (b) about other matters relevant to the exercise of its functions. 1 A National Board may develop guidelines about the advertising of regulated health services by health practitioners registered by the Board or other persons for the purposes of section 133. 2 To assist a health practitioner in providing practice information under section 132, a National Board may develop guidelines about the information that must be provided to the Board. 40—Consultation about registration standards, codes and guidelines (1) If a National Board develops a registration standard or a code or guideline, it must ensure there is wide‑ranging consultation about its content. (2) A contravention of subsection (1) does not invalidate a registration standard, code or guideline. (3) The following must be published on a National Board's website— (a) a registration standard developed by the Board and approved by the Ministerial Council; (b) a code or guideline approved by the National Board. (4) An approved registration standard or a code or guideline takes effect— (a) on the day it is published on the National Board's website; or (b) if a later day is stated in the registration standard, code or guideline, on that day. 41—Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co‑regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. Part 6—Accreditation 42—Definition accreditation function means— (a) developing accreditation standards for approval by a National Board; or (b) assessing programs of study, and the education providers that provide the programs of study, to determine whether the programs meet approved accreditation standards; or (c) assessing authorities in other countries who conduct examinations for registration in a health profession, or accredit programs of study relevant to registration in a health profession, to decide whether persons who successfully complete the examinations or programs of study conducted or accredited by the authorities have the knowledge, clinical skills and professional attributes necessary to practise the profession in Australia; or (d) overseeing the assessment of the knowledge, clinical skills and professional attributes of overseas qualified health practitioners who are seeking registration in a health profession under this Law and whose qualifications are not approved qualifications for the health profession; or (e) making recommendations and giving advice to a National Board about a matter referred to in paragraph (a), (b), (c) or (d). Division 2—Accreditation authorities 43—Accreditation authority to be decided (1) The National Board established for a health profession must decide whether an accreditation function for the health profession for which the Board is established is to be exercised by— (a) an external accreditation entity; or (b) a committee established by the Board. See sections 253 and 301 which provide for the performance of accreditation functions for a health profession by external accreditation authorities appointed by the Ministerial Council for a period after the commencement of this Law. (2) The National Agency may charge an entity the relevant fee for the exercise of an accreditation function by an accreditation committee. 44—National Agency may enter into contracts with external accreditation entities The National Agency may enter into a contract with an external accreditation entity for the performance by the entity of an accreditation function for a health profession only if the terms of the contract are in accordance with the health profession agreement between the National Agency and the National Board established for that profession. 45—Accreditation processes to be published Each accreditation authority must publish on its website or, if the authority is an accreditation committee, the website of the National Board that established the committee, how it will exercise its accreditation function. Division 3—Accreditation functions 46—Development of accreditation standards (1) An accreditation standard for a health profession may be developed by— (a) an external accreditation entity for the health profession; or (b) an accreditation committee established by the National Board established for the health profession. (2) In developing an accreditation standard for a health profession, an accreditation authority must undertake wide-ranging consultation about the content of the standard. 47—Approval of accreditation standards (1) An accreditation authority must, as soon as practicable after developing an accreditation standard for a health profession, submit it to the National Board established for the health profession. (2) As soon as practicable after a National Board receives an accreditation standard under subsection (1), the Board must decide to— (a) approve the accreditation standard; or (b) refuse to approve the accreditation standard; or (c) ask the accreditation authority to review the standard. (3) If the National Board decides to approve the accreditation standard it must give written notice of the approval to— (a) the National Agency; and (b) the accreditation authority that submitted the standard to the Board. (4) If the National Board decides to refuse to approve the accreditation standard— (a) it must give written notice of the refusal, including the reasons for the refusal, to the accreditation authority that submitted the standard; and (b) the accreditation authority is entitled to publish any information or advice it gave the Board about the standard. (5) If the National Board decides to ask the accreditation authority to review the standard it must give the authority a written notice that— (a) states that the authority is being asked to review the standard; and (b) identifies the matters the authority is to address before again submitting the standard to the Board. (6) An accreditation standard approved by a National Board must be published on its website. (7) An accreditation standard takes effect— (a) on the day it is published on the National Board's website; or (b) if a later day is stated in the standard, on that day. 48—Accreditation of programs of study (1) An accreditation authority for a health profession may accredit a program of study if, after assessing the program, the authority is reasonably satisfied— (a) the program of study, and the education provider that provides the program of study, meet an approved accreditation standard for the profession; or (b) the program of study, and the education provider that provides the program of study, substantially meet an approved accreditation standard for the profession and the imposition of conditions on the approval will ensure the program meets the standard within a reasonable time. (2) If the accreditation authority decides to accredit a program of study, with or without conditions, it must give to the National Board established for the health profession a report about the authority's accreditation of the program. (3) If the accreditation authority decides to refuse to accredit a program of study it must give written notice of the decision to the education provider that provides the program of study. (4) The notice must state— (b) that, within 30 days after receiving the notice, the education provider may apply to the accreditation authority for an internal review of the decision; and (c) how the education provider may apply for the review. (5) An education provider given a notice under subsection (3) may apply, as stated in the notice, for an internal review of the accreditation authority's decision to refuse to accredit the program of study. (6) The internal review must not be carried out by a person who assessed the program of study for the accreditation authority. 49—Approval of accredited programs of study (1) If a National Board is given a report by an accreditation authority about the authority's accreditation of a program of study, the Board may approve, or refuse to approve, the accredited program of study as providing a qualification for the purposes of registration in a health profession for which the Board is established. (2) An approval under subsection (1) may be granted subject to the conditions the National Board considers necessary or desirable in the circumstances. (3) If the National Board decides to approve the accredited program of study it must give written notice of the approval to— (a) the National Agency for inclusion of the program of study in the list under subsection (5); and (b) the accreditation authority that submitted the program to the Board. (4) If the National Board decides to refuse to approve the accredited program of study— (a) it must give written notice of the refusal, including the reasons for the refusal, to the accreditation authority that submitted the program; and (b) the accreditation authority is entitled to publish any information or advice it gave the Board about the program. (5) A list of the programs of study approved by a National Board as providing a qualification for registration in a health profession for which the Board is established must be published on the National Agency's website. (6) The list of approved programs of study published under subsection (5) must include, for each program of study, the name of the university, specialist medical or other college or other education provider that provides the approved program of study. (7) An approval under subsection (1) does not take effect until the program of study is included in the list published under subsection (5). 50—Accreditation authority to monitor approved programs of study (1) The accreditation authority that accredited an approved program of study must monitor the program and the education provider that provides the program to ensure the authority continues to be satisfied the program and provider meet an approved accreditation standard for the health profession. (2) If the accreditation authority reasonably believes the program of study and education provider no longer meet an approved accreditation standard for the health profession, the accreditation authority must— (a) decide to— (i) impose the conditions on the accreditation that the accreditation authority considers necessary to ensure the program of study will meet the standard within a reasonable time; or (ii) revoke the accreditation of the program of study; and (b) give the National Board that approved the accredited program of study written notice of the accreditation authority's decision. 51—Changes to approval of program of study (1) If a National Board is given notice under section 50(2)(b) that an accreditation authority has revoked the accreditation of a program of study approved by the Board, the Board's approval of the program is taken to have been cancelled at the same time the accreditation was revoked. (2) If a National Board reasonably believes, because of a notice given to the Board under section 50(2)(b) or for any other reason, that an accredited program of study approved by the Board no longer provides a qualification for the purposes of registration in a health profession for which the Board is established, the Board may decide to— (a) impose the conditions the Board considers necessary or desirable on the approval of the accredited program of study to ensure the program provides a qualification for the purposes of registration; or (b) cancel its approval of the accredited program of study. (3) If a National Board makes a decision under subsection (2), it must give written notice of the decision, including the reasons for the decision, to the accreditation authority that accredited the program.