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This is a Bill, not an Act. For current law, see the Acts databases.
HUMAN RIGHTS COMMISSION LEGISLATION AMENDMENT BILL 2005
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Human
Rights Commission Legislation Amendment Bill 2005
Contents
Page
Part 1.1 Civil Law
(Wrongs) Regulation 2003 3
Part
1.2 Discrimination Act
1991 4
Part 1.3 Freedom of
Information Act 1989 25
Part 1.4 Health
Professionals Act 2004 26
Part 1.5 Health
Professionals (Special Events Exemptions) Act 2000 39
Part 1.6 Health
Records (Privacy and Access) Act 1997 40
Part 1.7 Human
Rights Act 2004 47
Part 1.8 Legislation
Act 2001 49
Part 1.9 Limitation
Act 1985 50
Part 1.10 Ombudsman
Act 1989 50
Part 1.11 Public
Health Act 1997 52
Part
1.12 Remuneration Tribunal Act
1995 52
Part 1.13 Territory
Records Act 2002 55
Part 1.14 Victims of
Crime Regulation 2000 55
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Human Rights
Commission Legislation Amendment Bill 2005
A Bill for
An Act to amend various laws because of the establishment of the Human
Rights Commission, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Human Rights Commission Legislation Amendment Act
2005.
(1) Schedule 1, part 1.12 (Remuneration Tribunal Act 1995) commences on
the day after this Act’s notification day.
(2) The remaining provisions commence on the day the Human Rights
Commission Act 2005 commences.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
This Act amends the legislation mentioned in schedule 1.
The Community and Health Services Complaints Act 1993 A1993-96 is
repealed.
Schedule
1 Consequential
amendments
Part
1.1 Civil Law (Wrongs) Regulation
2003
substitute
Note 1 The dictionary at the end of this regulation defines certain
terms used in this regulation, and includes references (signpost
definitions) to other terms defined elsewhere.
For example, the signpost definition ‘health
service—see the Human Rights Commission Act 2005, section
7 (1) and (3) (a).’ means that the term ‘health
service’ is defined in that section and the definition applies to this
regulation.
[1.2] Dictionary,
definitions of health service and provider
substitute
health service—see the Human Rights Commission Act
2005, section 7 (1) and (3) (a).
provider—see the Human Rights Commission
Act 2005, section 10.
Part
1.2 Discrimination Act
1991
omit
substitute
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
substitute
68 Victimisation
(1) It is unlawful for a person (the first person) to
subject someone else (the other person) to any detriment
because—
(a) the other person has—
(i) begun a proceeding under this Act; or
(ii) given evidence, or produced a document or thing, to the tribunal;
or
(iii) reasonably asserted any rights that a person (including the other
person) has under this Act; or
(iv) claimed that a person has committed an act that is unlawful under
this Act; or
(b) the first person believes that the other person proposes to do
something mentioned in paragraph (a).
(2) Subsection (1) (a) (iv) does not apply in relation to a claim that is
false and is not made honestly.
substitute
Part 8 General principles about unlawful
acts
70 Onus of establishing exception
etc
If, apart from an exception, exemption, excuse, qualification or
justification under this Act, conduct would be unlawful under part 3, part
5, section 66 or part 7, the onus of establishing the exception, exemption,
excuse, qualification or justification lies on the person seeking to rely on
it.
71 Unlawful act not an offence
The doing of an act is not an offence only because it is unlawful under
part 3, part 5, section 66 or part 7.
72 Unlawful act no basis for civil
action
This Act does not give a person any right of action in relation to the
doing of an act that is unlawful under part 3, part 5, section 66 or part
7.
73 Aiding etc unlawful acts
A person who aids, abets, counsels or procures someone else to do an act
that is unlawful under part 3, part 5, section 66 or part 7 is taken, for this
Act, also to have done the act.
Part 9 Hearing of
complaints
Division
9.1 Preliminary
74 Meaning of party for pt
9
In this part:
party, in relation to the hearing of a complaint,
means—
(a) the complainant; and
(b) the respondent; and
(c) anyone joined by the tribunal under section 83.
75 Reliance on exceptions and
exemptions
In considering whether an act is unlawful under part 3, part 5,
section 66 or part 7, the tribunal need not consider any exception in
part 4 or exemption in part 10, unless the tribunal has information
suggesting the exception or exemption applies to the act.
76 Complaints about unlawful
discrimination
For this Act, a complaint claiming that a person has done an act that is
unlawful under part 3, part 5, section 66 or part 7 is a complaint about
unlawful discrimination.
Note Complaints about unlawful discrimination are made under the HRC
Act (see s 42).
Division 9.2 Hearings by
tribunal
77 Hearings by tribunal
(1) The tribunal is to hear the following matters:
(a) a complaint referred to it by HRC under the HRC Act,
section 53;
(b) an application under section 78 for a complaint to be heard;
(c) a complaint in relation to which an application under section 78
is made if the application is granted;
(d) an application under section 79 to strike out a complaint;
(e) an application for an interim order under section 97 or
section 98.
(2) At least 7 days before a hearing mentioned in subsection (1) (d) and
14 days before any other hearing mentioned in subsection (1), the registrar
must give written notice to the parties of the time, date and place of the
hearing.
(3) The tribunal must begin hearing a matter mentioned in
subsection (1) (d) within 14 days after the day the application is
made.
78 Late application in exceptional
circumstances
(1) This section applies if—
(a) a complainant has been given a statement under the HRC Act, section 45
(2) (d), section 63 or section 81; and
(b) the complainant has not required the commission to refer the complaint
to the tribunal within 60 days after the day the statement is given to the
complainant.
(2) The complainant may apply to the tribunal for the complaint to be
heard by the tribunal.
(3) The tribunal may grant the application only if satisfied that
exceptional circumstances prevented the complainant from requiring the complaint
to be referred to the tribunal within the 60 days.
79 Application to strike out
complaint
The person against whom a complaint is made may, at any time after the
complaint is referred to the tribunal and before the tribunal begins hearing the
complaint (other than a time when the complaint is being conciliated under the
HRC Act), apply to the tribunal to strike out the complaint on any of the
following grounds:
(a) the complaint is frivolous, vexatious or not made honestly;
(b) the complaint lacks substance.
Division 9.3 Tribunal
procedure
80 Tribunal to decide own
procedures
The tribunal may decide its own procedure in relation to a particular
matter in a hearing or a step in a proceeding if no procedure is prescribed
under this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
81 Hearings may be closed
The tribunal may, on application or on its own initiative, direct that a
hearing or part of a hearing be closed to the public and give directions about
the people who may be present.
82 Sittings
(1) The tribunal may sit in the places in the ACT that the president
decides.
(2) However, the tribunal must not sit in a place customarily used by a
court for hearings unless the president is satisfied that no other suitable
place is available or appropriate in the circumstances.
83 Joining parties
If the tribunal considers a person ought to be joined as a party to the
hearing of a complaint by the tribunal, the tribunal may, by written notice
given to the person, join the person as a party.
84 Appearances
A party to a tribunal hearing may appear at the hearing.
85 Representation
(1) A party is not entitled to be represented at a hearing unless the
tribunal consents to the representation.
(2) Subsection (1) does not prevent the representation of a party that is
a body by a member, officer or employee of the party.
(3) In this section:
party includes an unincorporated association.
86 Witness subpoenas
(1) For the purposes of a tribunal hearing, the tribunal may subpoena a
person to appear as a witness before it—
(a) to give evidence; or
(b) to produce any document or other thing, stated in the subpoena, in the
possession, custody or control of the person; or
(c) to give evidence and produce any document or other thing, stated in
the subpoena, in the possession, custody or control of the person.
(2) The tribunal may give a party leave to inspect a document or other
thing produced under a subpoena.
(3) A person is taken to have complied with a subpoena under
subsection (1) (b) if the person gives the document or other thing to the
registrar before the date stated in the subpoena for the production of the
document or other thing.
(4) A subpoena must be—
(a) in writing; and
(b) served on the person named in the subpoena.
87 Expenses of witnesses etc
(1) This section applies to a person attending before the tribunal under a
subpoena under section 86.
(2) The person is entitled to be paid by the Territory for expenses
reasonably incurred by the person for the attendance an amount authorised by the
tribunal in accordance with the scale and conditions applying to people who
attend as witnesses before the Magistrates Court.
Note For the amounts paid to witnesses in the Magistrates Court, see
the Magistrates Court (Civil Jurisdiction) Rules 2004, s 269.
88 Failure to attend or produce
document
(1) A person commits an offence if—
(a) the person is required by a subpoena under section 86 to appear as a
witness before the tribunal; and
(b) the person—
(i) fails to appear as required by the subpoena; or
(ii) fails to continue to attend as reasonably required by the tribunal
until excused from further attendance.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person commits an offence if—
(a) the person is required by a subpoena under section 86 to produce a
document or thing stated in the subpoena to the tribunal; and
(b) the person fails to produce the document or thing as required by the
subpoena.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) This section does not apply if the person has a reasonable
excuse.
89 Appearance by audiovisual or audio
links
(1) This section applies if, in relation to a hearing or a part of a
hearing (the relevant hearing), the tribunal has given a direction
under the Evidence (Miscellaneous Provisions) Act 1991, section 20
(Territory courts may take evidence and submissions from outside ACT) or section
32 (Use of link in proceedings).
(2) A person may appear in the relevant hearing, and take part or give
evidence, in accordance with the direction, if the person—
(a) is required or entitled to appear personally, whether as a party or as
a witness; or
(b) is entitled to appear for someone else.
(3) A person who appears in the relevant hearing under this section is
taken to be before the tribunal.
90 Taking evidence
The tribunal may take evidence on oath or affirmation and, for that
purpose—
(a) may require a person attending before the tribunal to take an oath or
make an affirmation; and
(b) may administer an oath or affirmation to the person.
91 Refusing to take oath or make
affirmation
(1) A person must not fail to take an oath or make an affirmation when
required to do so under section 90 (a).
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) This section does not apply if the person has a reasonable
excuse.
92 Requiring answer or document
(1) The tribunal may require a person appearing before the
tribunal—
(a) to answer a question relevant to the hearing; or
(b) to produce a document or other thing relevant to the
hearing.
(2) A person must not fail to comply with a requirement made of the person
under subsection (1).
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) This section does not apply if the person has a reasonable
excuse.
93 Prohibiting or controlling
publication
(1) This section applies to the following material (protected
material):
(a) any evidence given before the tribunal;
(b) the contents of any document produced to the tribunal;
(c) any information that might allow a person who has appeared before the
tribunal to be identified.
(2) The tribunal may, in writing, direct that protected material must not
be—
(a) published; or
(b) published except in the way, or to the people, stated by the
tribunal.
(3) A direction to a particular person must be given to the
person.
(4) A direction to people generally is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(5) A direction takes effect—
(a) if it is given to a person—on the day it is given to the person;
or
(b) if it is notified—on the day after the day it is notified;
or
(c) in any case if a later date of effect is stated in the
direction—on the later date.
(6) A person commits an offence if—
(a) the person publishes anything; and
(b) the publication contravenes a direction under this section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
94 Privileges against selfincrimination and exposure
to civil penalty
(1) This section applies if—
(a) a person is required by a subpoena under section 86 to produce a
document or other thing; or
(b) a person is required under section 92 to answer a question or to
produce a document or other thing.
(2) The person cannot rely on the common law privileges against
selfincrimination and exposure to the imposition of a civil penalty to refuse to
produce the document or other thing or answer the question.
Note The Legislation Act, s 171 deals
with client legal privilege.
(3) However, any information, document or other thing obtained, directly
or indirectly, because of the producing of the document or other thing, or the
answering of the question, is not admissible in evidence against the person in a
civil or criminal proceeding, other than a proceeding for—
(a) an offence against this division; or
(b) any other offence in relation to the falsity of the document, other
thing or answer.
95 Protection of members of tribunal
etc
(1) A member of the tribunal has, in the exercise of his or her functions
as a member, the same protection and immunity as a judge.
(2) A lawyer appearing for a party to a hearing before the tribunal has
the same protection and immunity as a barrister has in appearing for a party in
a proceeding in the Supreme Court.
Note Section 85 deals with the representation of parties at a
hearing.
(3) A person appearing as a witness before the tribunal—
(a) has the same protection as a witness in a proceeding in the Supreme
Court; and
(b) in addition to the penalties provided by this Act, is subject to the
same liabilities as a witness in a proceeding in the Supreme Court.
96 Contempt of tribunal etc
(1) A person commits an offence if the person does something in the face
of, or within the hearing of, the tribunal that would, if the tribunal were a
court of record, be contempt of court.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(2) A person commits an offence if the person—
(a) intentionally obstructs or hinders the tribunal in the exercise of its
functions; or
(b) intentionally causes a substantial disruption to a proceeding before
the tribunal.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
Division 9.4 Granting of relief by
tribunal
97 Interim orders—complaint before
HRC
(1) If a complaint has been given to HRC under the Human Rights
Commission Act 2005 (the HRC Act) but has not been referred to
the tribunal by HRC, the complainant or respondent may apply to the tribunal for
an interim order under this section.
Note If a form is approved under s 120 for an application, the form
must be used.
(2) If the tribunal is satisfied that an interim order under this section
is necessary to preserve the rights of, or state of affairs between, the
parties, the tribunal may make the interim order it considers
appropriate.
(3) An interim order remains in force until—
(a) the commission makes a decision—
(i) to refer the complaint for conciliation under the HRC Act,
section 51; or
(ii) to close the complaint under the HRC Act, section 77; or
(b) the president of HRC makes a decision under the HRC Act, section 65
(1) (d) that the conciliation of the complaint is unlikely to be
successful.
(4) If a person against whom an interim order is made is not present when
the order is made, the registrar must serve a copy of the order on the person as
soon as practicable after the order is made.
98 Interim orders—complaint before
tribunal
(1) A party to a hearing before the tribunal may apply to the tribunal for
an interim order under this section, at any time before or during the
hearing.
Note If a form is approved under s 120 for an application, the form
must be used.
(2) If the tribunal is satisfied that an interim order under this section
is necessary to preserve the rights of, or state of affairs between, the
parties, the tribunal may make the interim order it considers
appropriate.
(3) An interim order remains in force until the earlier of the
following:
(a) the tribunal revokes the order;
(b) the tribunal dismisses the complaint, or makes an order, under
section 99 after hearing the complaint.
(4) If an interim order is in force, the tribunal may amend or revoke the
order on application by a party.
(5) If a person against whom an interim order is made is not present when
the order is made, the registrar must serve a copy of the order on the person as
soon as practicable after the order is made.
99 Decisions following hearing
(1) This section applies after the tribunal has heard a
complaint.
(2) If the tribunal is satisfied the complaint is frivolous or vexatious,
is not made honestly, or lacks substance, the tribunal must dismiss the
complaint.
(3) If the tribunal is satisfied that the respondent has engaged in
unlawful conduct, the tribunal must make 1 or more of the following
orders:
(a) that the respondent not repeat or continue the unlawful
conduct;
(b) that the respondent perform a stated reasonable act to redress any
loss or damage suffered by a person because of the unlawful conduct;
(c) except if the complaint has been dealt with as a representative
complaint—that the respondent pay to a person a stated amount by way of
compensation for any loss or damage suffered by the person because of the
unlawful conduct.
(4) If the tribunal dismisses the complaint because it is satisfied that
the complaint is frivolous or vexatious, or is not made honestly, the tribunal
may, by written notice given to the complainant, order the complainant to pay
the respondent a stated amount in relation to the expenses reasonably incurred
by the respondent in relation to the hearing.
(5) An amount ordered to be paid to a person under
subsection (3) (c) may include an amount in relation to the expenses
reasonably incurred by the person in relation to the hearing.
(6) An amount mentioned in subsection (4) or (5) must be fixed in
accordance with the scale of costs applying to a civil proceeding in the
Magistrates Court.
Note For the scale of costs in the Magistrates Court, see the
Magistrates Court (Civil Jurisdiction) Rules 2004, s 259.
(7) If, under this section, the tribunal dismisses the complaint or makes
an order in relation to the complaint, the tribunal must, within 28 days
after the day it makes the decision, give the parties to the hearing written
notice of the decision and the terms of any order.
(8) In this section:
unlawful conduct means conduct that is unlawful under part 3,
part 5, section 66 or part 7.
representative complaint means a complaint that is dealt with
by HRC as a representative complaint under the HRC Act,
section 71.
(9) In subsection (8):
representative complaint includes a complaint that has been
dealt with as a representative complaint by the discrimination commissioner
under section 78 at any time before the commencement of the HRC Act.
(10) Subsection (9) and this subsection expire 1 month after the day they
commence.
Division 9.5 Enforcement of orders and
decisions of tribunal
100 Failure to comply with tribunal
order
A party to a hearing commits an offence if the party fails to take all
reasonable steps to comply with an order of the tribunal.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
101 Enforcement of tribunal
orders
An order of the tribunal is enforceable as if it were a judgment given by
the Magistrates Court in a personal action at law that the court has
jurisdiction to hear and decide under the Magistrates Court
Act 1930, chapter 4 (Civil proceedings).
Division
9.6 Miscellaneous
102 Statement of reasons
(1) This section applies if—
(a) the tribunal makes a decision in hearing a complaint; and
(b) a party to the hearing asks for a statement of reasons for the
decision within 14 days after the day the decision is made.
(2) The tribunal must give the party a written statement of
reasons.
Note The Legislation Act, s 179 deals with what must be included in
a statement of reasons.
103 Referral of questions of law to Supreme
Court
(1) If the tribunal considers that a question of law raises an issue of
public importance, the tribunal may refer the question to the Supreme
Court.
(2) The tribunal may act under subsection (1) on its own initiative or on
application by a party.
104 Appeals from tribunal
decisions
(1) A party to a tribunal hearing may, with the Supreme Court’s
leave, appeal to the court on a question of law from a decision of the tribunal
in the hearing.
(2) An appeal by a person under subsection (1) must be begun
within—
(a) 28 days after the day the person is given written notice of the
tribunal’s decision under section 99 (7); or
(b) any further time the Supreme Court allows (whether before or after the
end of the 28-day period).
(3) The Supreme Court must decide the appeal, and may make any of the
following orders:
(a) an order confirming or setting aside the decision of the
tribunal;
(b) an order remitting the case to be heard and decided again, either with
or without the hearing of further evidence, by the tribunal in accordance with
the court’s directions;
(c) an order for costs.
(4) The Supreme Court may also make any other order the court considers
appropriate.
(5) This section applies in relation to a decision of the tribunal made on
or after the day this section commences.
(6) Subsection (5) and this subsection expire on 10 January
2006.
[1.7] Sections
109 and 110
omit
commissioner
substitute
HRC
renumber as part 10
renumber as part 11
[1.10] Divisions
9A.1, 9A.2, 9A.3 and 9A.4
renumber as divisions 11.1, 11.2, 11.3 and 11.4
[1.11] Sections
110A to 110K
renumber as sections 111 to 120
omit
substitute
Part 12 Miscellaneous
121 Secrecy
(1) In this section:
court includes a tribunal, authority or person having power
to require the production of documents or the answering of questions.
divulge includes communicate.
person to whom this section applies means a person
who—
(a) is or has been—
(i) a member of the tribunal; or
(ii) the registrar of the tribunal; or
(iii) a member of the staff of the tribunal; or
(b) exercises, or has exercised, a function under this Act.
produce includes allow access to.
protected information means information about a person that
is disclosed to, or obtained by, a person to whom this section applies because
of the exercise of a function under this Act by the person or someone
else.
(2) A person to whom this section applies commits an offence
if—
(a) the person—
(i) makes a record of protected information about someone else;
and
(ii) is reckless about whether the information is protected information
about someone else; or
(b) the person—
(i) does something that divulges protected information about someone else;
and
(ii) is reckless about whether—
(A) the information is protected information about someone else;
and
(B) doing the thing would result in the information being divulged to
someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) Subsection (2) does not apply if the record is made, or the
information is divulged—
(a) under this or any other Act; or
(b) in relation to the exercise of a function, as a person to whom this
section applies, under this Act or another territory law.
(4) Subsection (2) does not apply to the divulging of protected
information about someone with the person’s consent.
(5) A person to whom this section applies need not divulge protected
information to a court, or produce a document containing protected information
to a court, unless it is necessary to do so for this Act or another territory
law.
(6) In subsection (1):
person to whom this section applies includes a person who was
the discrimination commissioner under this Act, or a member of the staff of the
commission, at any time before the commencement of the HRC Act.
(7) Subsection (6) and this subsection expire 1 month after the day they
commence.
122 Relationship to other laws
This Act is additional to any other territory law that provides for the
protection of a person from conduct that is or would be unlawful under this
Act.
123 Regulation-making power
(1) The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) The regulations may except people, activities or other things from the
operation of particular provisions of part 3, part 5 or part 7.
[1.14] Dictionary,
definitions of commissioner and Commonwealth
commission
omit
[1.15] Dictionary,
definition of complainant
substitute
complainant, in relation to a complaint, means the person who
made the complaint.
[1.16] Dictionary,
definition of complaint
substitute
complaint means a complaint about unlawful discrimination
that may be made under the HRC Act.
[1.17] Dictionary,
new definitions
insert
complaint about unlawful discrimination—see section
76.
HRC means the human rights commission.
HRC Act means the Human Rights Commission Act
2005.
[1.18] Dictionary,
definition of investigation
omit
[1.19] Dictionary,
definition of party
substitute
party, for part 9 (Hearing of complaints)—see section
74.
[1.20] Dictionary,
definition of representative complaint
omit
[1.21] Dictionary,
definition of respondent
substitute
respondent, in relation to a complaint, means the person
against whom the complaint is made.
[1.22] Dictionary,
definition of staff
omit
[1.23] Dictionary,
definition of tribunal
substitute
tribunal means the Discrimination Tribunal established by
section 111.
Part
1.3 Freedom of Information Act
1989
substitute
(3) The human rights commission is exempt from the operation of this Act
in relation to documents created or received by the commission in relation
to—
(a) a complaint made to the commission under the Health Records Act,
section 18; or
(b) the exercise of a function under the Human Rights Commission Act
2005 in relation to a complaint mentioned in paragraph (a).
Note Exercise and function are defined in the
Legislation Act, dict, pt 1.
insert
(5) If the CHSC commissioner was exempt from the operation of this Act in
relation to a document created or received before the HRC commencement
day—
(a) the document is taken to be held by the human rights commission from
the HRC commencement day; and
(b) the commission is exempt from the operation of this Act in relation to
the document.
(6) In subsection (5):
CHSC commissioner means the commissioner for community and
health services complaints under the Community and Health Services Complaints
Act 1993, as in force at any time before the HRC commencement day.
HRC commencement day means the day the Human Rights
Commission Act 2005 commences.
(7) Subsections (5) and (6) and this subsection expire 1 month after they
commence.
Note The expiry of transitional provisions does not end their effect
(see Legislation Act, s 88).
Part
1.4 Health Professionals Act
2004
substitute
(b) a complaint is made under the Human Rights Commission
Act 2005; or
substitute
(2) A report is considered by the health profession board and by the
commission together (see part 10).
omit
or complaint
substitute
12 Interaction with Human Rights Commission
Act
(1) The commission must consult with the health profession board for a
health profession in relation to a complaint made to the commission under the
Human Rights Commission Act 2005 (the HRC Act) relating to
a health professional in the profession.
(2) In considering a report (which may be a final review report under
section 39) relating to a registered health professional, the health profession
board must consult with the
commission.
(3) If the health profession board and the commission cannot agree about
the action to be taken in relation to a report, the most serious action chosen
by the board or commission prevails (see section 86 (2)).
(4) This Act and the HRC Act set out a flexible system for dealing with
reports and complaints.
Note The health services commissioner generally exercises the
commission’s functions in relation to health services.
substitute
(3) However, if a regulation prescribes something that is inconsistent
with the health code under the Human Rights Commission Act 2005, the
regulation is ineffective to the extent of the inconsistency.
[1.31] Section
44 (1) (b)
omit
or complaint
[1.32] Section
78, note 1
substitute
Note 1 People may also be able to make complaints to the commission
under the Human Rights Commission Act 2005.
substitute
79 Who may be given a report?
(1) A report may be given to the relevant health profession
board.
(2) The health profession board must—
(a) refer the report to the commission; and
(b) give a copy of the report, and all documents in its possession that
relate to the report, to the commission.
[1.34] Section
81 (2) and (3)
omit
or the commissioner
[1.35] Section
81 (3) and (4)
omit
or commissioner
substitute
82 Help in making report
The executive officer of a health profession board may, but is not required
to, help someone make a report.
omit
or the commissioner
omit
or commissioner
[1.39] Section
84 (2) (b)
omit
and commissioner
[1.40] Section
84 (2), notes 1 and 2
substitute
Note Section 128 prevents the disclosure of a report if there is
reason to believe the disclosure would put someone’s health or safety at
risk, cause someone to receive a lowered standard of health service or prejudice
the management of the report or its consideration.
substitute
Part 10 Joint consideration with
commission
[1.42] Section
85 (a), (b) and (d)
omit
or complaint
[1.43] Section
86 heading
substitute
86 Consultation with commission
etc
substitute
(1) The health profession board must—
(a) consult with the commission when it is considering what to do in
relation to a report to which this part applies; and
(b) endeavour to agree with the commission about the action to be taken in
relation to the report.
omit
commissioner
substitute
commission
[1.46] Section
86 (2) and (3)
omit
matter
substitute
report
[1.47] Section
86 (3) (c)
substitute
(c) consideration under the Human Rights Commission Act 2005 of a
report referred to the commission;
[1.48] Section
86 (3) (f)
omit
renumber paragraphs when Act next republished under Legislation
Act
omit
commissioner
substitute
commission
[1.51] Section
86 (4) and (5)
omit
matter
substitute
report
[1.52] Section
86 (5), example
substitute
Example
If the health profession board decides that a report about a health
professional does not suggest that the health professional may be contravening,
or may have contravened, the required standard of practice, the board may refer
the report to a personal assessment panel. If the personal assessment panel
recommends that the report be referred to a professional standards panel
because, on further examination, the report raises the possibility that the
health professional may be contravening, or may have contravened, the required
standard of practice, the board would then consult with the commission under
this section, even though the board has already taken action in relation to the
report.
[1.53] Section
87 (1), (2) and (3)
omit
matter
substitute
report
omit
commissioner
substitute
commission
omit
or complaint
substitute
(3) The health profession board must refer a report about a health
professional to a personal assessment panel if the commission asks it to refer
the report.
[1.57] Section
89 (4) (a)
omit
or complaint
omit
complaint or
omit
or complaints
[1.60] Section
93 (1) (a)
omit
or complaint
[1.61] Section
93 (1) (b)
substitute
(b) any information provided by the commission or the person who made the
report;
omit
or complaint
[1.63] Section
94 (2) (a)
omit
, complaint
substitute
(1) This section applies to a report, or an application for a condition
review, if the personal assessment panel believes, on reasonable grounds, that
the report or application (the matter) has been inappropriately
referred to the panel.
[1.65] Section
99 and 100 (1)
omit
or complaint
[1.66] Section
100 (3) (a)
omit
commissioner
substitute
commission
[1.67] Section
100 (4) (c)
omit
renumber paragraphs when Act next republished under Legislation
Act
omit
or complaint
[1.70] Section
102 (2) (b)
substitute
(b) must give written notice of the decision to the commission.
omit
or complaint
[1.72] Section
105 (3) (b)
omit
commissioner
substitute
commission
substitute
(4) If the health profession board makes a decision without consulting the
commission, the board must tell the commission about the decision.
[1.74] Section
107 (2) (a)
omit
or complaint
[1.75] Section
107 (2) (b)
substitute
(b) any information provided by the commission or the person who made the
report;
[1.76] Sections
107 (4), 110 (1) and (2) and 112 (1) and (2)
omit
or complaint
omit
commissioner
substitute
commission
omit
or complaint
[1.79] Section
113 (1) (b) (iii)
substitute
(iii) the commission.
omit
or complaint
substitute
116 Role of commission
(1) At a standards inquiry, the commission may—
(a) be represented; and
(b) give evidence about the consideration of a complaint under the
Human Rights Commission Act 2005; and
(c) may be present at the inquiry even if not giving evidence.
(2) A reference in this section to the consideration of a complaint by the
human rights commission includes a reference to the investigation of a complaint
by the community and health services complaints commissioner under the
Community and Health Services Complaints Act 1993 as in force at any
time.
(3) Subsection (2) and this subsection expire 1 month after the day they
commence.
[1.82] Section
120 (1) (b)
substitute
(b) the commission;
[1.83] Section
122 (2) (i)
omit
, complaint
[1.84] Section
123 (2) (c)
substitute
(c) the commission.
[1.85] Section
126 (1) (a)
omit
or complaint
[1.86] Section
128 (2) (c)
substitute
(c) prejudice the management of the report or its consideration by the
commission or a health profession board.
substitute
150B People previously registered under Act or
repealed Act
In this Act:
registered health professional, in relation to a report under
division 9.2, includes a person who was registered under this Act or a
repealed Act at the time of the act or omission reported.
insert
150K Complaints made before HRC commencement
day
(1) In this section:
HRC commencement day means the day the Human Rights
Commission Act 2005 commences.
(2) In this Act:
complaint includes a complaint made to the community and
health services complaints commissioner before HRC commencement day.
[1.89] Dictionary,
new definition of commission
insert
commission means the human rights
commission.
[1.90] Dictionary,
definitions of commissioner, complaint and
report
substitute
commissioner means the health services
commissioner.
complaint means a health service complaint under the Human
Rights Commission Act 2005.
report means—
(a) a report under division 9.2; and
(b) includes a complaint made under the Human Rights Commission Act
2005 that is referred to a health profession board by the
commission.
Part
1.5 Health Professionals (Special
Events Exemptions) Act 2000
[1.91] Section
12 (1) and (2)
omit
Community and Health Services Complaints Act 1993
substitute
Human Rights Commission Act 2005
Part
1.6 Health Records (Privacy and
Access) Act 1997
substitute
1 Name of Act
This Act is the Health Records (Privacy and Access) Act
1997.
[1.93] Section
4, definitions of commissioner, consumer, disability, guardian, health
record, health service, health service provider, immediate family member,
personal health information, record, record keeper, registration
board
omit
[1.94] Section
4, definitions (as amended)
relocate to dictionary
[1.95] Section
4, remainder
substitute
4 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition
‘disability—see the Human Rights Commission
Act 2005, section 8 (2).’ means that the term
‘disability’ is defined in that subsection and the definition
applies to this Act.
Note 2 A definition in the dictionary applies to the entire Act
unless the definition, or another provision of the Act, provides otherwise or
the contrary intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
4A Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
4B Offences against Act—application of Criminal
Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to the offences against section 23
(see Code, pt 2.1):
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
substitute
Part 4 Complaints
18 Grounds for complaint
(1) A person may make a complaint about an act or omission to the
commission on the following grounds:
(a) the act or omission contravenes the privacy principles in relation to
a consumer;
(b) the act or omission is a refusal to give access in accordance with
this Act to a health record relating to a consumer;
(c) the act or omission is a refusal by a record keeper of a health record
to give access to the health record under this Act.
(2) A complaint on a ground mentioned in subsection (1) (a) in relation to
a dead consumer may be made whether or not the act or omission happened in the
lifetime or after the death of the consumer.
Note Complaints about unlawful discrimination are made under the HRC
Act (see s 42).
substitute
23 People not to be unlawfully
penalised
(1) A person commits an offence if the person threatens or intimidates
someone else with the intention of causing the other person—
(a) not to make or pursue a request under part 3 for access; or
(b) to withdraw a request.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) A person commits an offence if—
(a) the person makes a representation to someone else; and
(b) the representation is false in a material particular; and
(c) the person is reckless about whether the representation is false;
and
(d) the person makes the representation with the intention of causing the
other person—
(i) not to make or pursue a request under part 3 for access; or
(ii) to withdraw a request.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) It is a defence to a prosecution for an offence against subsection (2)
if the defendant proves that—
(a) the defendant had another ground for engaging in the conduct
complained of; and
(b) the ground was a reasonable one.
[1.98] Section
31 (2) (a)
omit
commissioner
substitute
health services commissioner
omit
commissioner
substitute
commission
insert
Dictionary
(see s 4)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1 defines the
following terms:
• adult
• Commonwealth
• contravene
• entity
• individual.
commission means the human rights commission.
consumer means an individual who uses, or has used, a health
service, or in relation to whom a health record has been created, and
includes—
(a) a person authorised by the consumer under section 13 (7) to have
access to the health record; and
(b) if the consumer is a young person or a legally incompetent
person—a guardian of the consumer; and
(c) if the consumer has died—a legal representative of the deceased
consumer.
disability—see the Human Rights Commission
Act 2005, section 8 (2).
guardian means—
(a) of a young person—a parent or legally appointed guardian of the
young person; or
(b) of a legally incompetent person—a person who—
(i) is either—
(A) a legally appointed guardian of the legally incompetent person;
or
(B) an attorney, appointed under an enduring power of attorney that has
become operative, of the legally incompetent person; and
(ii) has power to make decisions about the medical treatment or health
care of the legally incompetent person.
health record means any record, or any part of a
record—
(a) held by a health service provider and containing personal information;
or
(b) containing personal health information.
health service means—
(a) any activity that is intended or claimed (expressly or by
implication), by the person providing it, to assess, record, improve or maintain
the physical, mental or emotional health of a consumer or to diagnose or treat
an illness or disability of a consumer; or
(b) a disability, palliative care or aged care service that involves the
making or keeping of personal health information;
but does not include any service declared by regulation to be an exempt
service.
health service provider means an entity that provides a
health service in the ACT.
immediate family member, of a consumer, means a person
who—
(a) is—
(i) a parent of the consumer; or
(ii) a domestic partner of the consumer; or
(iii) an adult child or sibling of the consumer; or
Note For the meaning of domestic partner, see the
Legislation Act, s 169.
(b) is a member of the same household as the consumer and
is—
(i) another relative of the consumer; or
(ii) a close friend of the consumer.
personal health information, of a consumer, means any
personal information, whether or not recorded in a health
record—
(a) relating to the health, an illness or a disability of the consumer;
or
(b) collected by a health provider in relation to the health, an illness
or a disability of the consumer.
record means a record in documentary or electronic form that
consists of or includes personal health information in relation to a consumer
(other than research material that does not disclose the identity of the
consumer), and includes—
(a) a photograph or other pictorial or digital representation of any part
of the consumer; and
(b) test results, medical imaging materials and reports, and clinical
notes, relating to the consumer; and
(c) any part of a record; and
(d) a copy of a record or any part of a record.
record keeper means an entity that has possession or control
of a health record.
registration board means a health profession board under the
Health Professionals Act 2004.
Part
1.7 Human Rights Act
2004
[1.101] Section
34 heading
substitute
34 Notice to Attorney-General and
commission
[1.102] Section
34 (2) (a)
omit
human rights commissioner
substitute
commission
[1.103] Section
34 (2) (b)
omit
commissioner
substitute
the commission
omit
human rights commissioner
substitute
the commission
omit
in part 7, insert
41 Review of effect of territory laws on human
rights
(1) The commission has the following functions:
(a) review the effect of territory laws, including the common law, on
human rights;
(b) report in writing to the Attorney-General on the results of the
review.
(2) The Attorney-General must present a copy of a report mentioned in
subsection (1) to the Legislative Assembly within 6 sitting days after the
day the Attorney-General receives the report.
(3) However, the Attorney-General may amend the report (including by
omitting part of the report) before presenting it to the Legislative Assembly to
prevent the report—
(a) disclosing the identity of—
(i) a person whose human rights have, or may have been, contravened;
or
(ii) someone who may have contravened someone else’s rights;
or
(b) allowing the identity of someone mentioned in paragraph (a) to be
worked out; or
(c) disclosing information if the disclosure of the information could, in
the Attorney-General’s opinion, harm the public interest.
(4) If the Attorney-General amends the report, the Attorney-General must
present a statement to the Legislative Assembly with the report that tells the
Assembly that the report has been amended.
renumber as part 6
[1.108] Dictionary,
new definition of commission
insert
commission means the human rights commission.
[1.109] Dictionary,
definition of human rights commissioner
omit
Part
1.8 Legislation Act
2001
[1.110] Dictionary,
part 1, definition of commissioner for health
complaints
omit
[1.111] Dictionary,
part 1, new definition of disability and community services
commissioner
insert
disability and community services commissioner means the
Disability and Community Services Commissioner under the Human Rights
Commission Act 2005.
[1.112] Dictionary,
part 1, definition of discrimination commissioner
substitute
discrimination commissioner means the Discrimination
Commissioner under the Human Rights Commission Act 2005.
[1.113] Dictionary,
part 1, new definitions of health services commissioner, human rights
commission and human rights commissioner
insert
health services commissioner means the Health Services
Commissioner under the Human Rights Commission Act 2005.
human rights commission means the Human Rights Commission
established under the Human Rights Commission Act 2005.
human rights commissioner means the Human Rights Commissioner
under the Human Rights Commission Act 2005.
Part
1.9 Limitation Act
1985
substitute
(5) In this section:
health service—see the Human Rights Commission Act
2005, section 7 (1) and (3) (a).
Part
1.10 Ombudsman Act
1989
substitute
1 Name of Act
This Act is the Ombudsman Act 1989.
[1.116] Section
3, definition of prescribed authority,
paragraph (c)
omit
or commissioner for health complaints
[1.117] Section
5 (2) (i)
substitute
(i) action taken by the human rights commission, a member of the
commission, or a member of the staff of the commission, in the exercise of the
commission’s deliberative functions; or
[1.118] Section
5 (2) (n)
substitute
(n) action taken by an agency—
(i) for the purpose or in the course of providing, or purporting to
provide, a health service, a service for people with a disability or a service
for older people; or
(ii) in refusing to provide a health service, a service for people with a
disability or a service for older people; or
substitute
(6) In this section:
health service—see the Human Rights Commission Act
2005, section 7.
service for older people—see the Human Rights
Commission Act 2005, section 9.
service for people with a disability—see the Human
Rights Commission Act 2005, section 8.
[1.120] Section
6B (1) (b)
substitute
(b) the human rights commission;
Part
1.11 Public Health Act
1997
[1.121] Section
102 (4) (b)
substitute
(b) is a ground for the patient to make a complaint to the human rights
commission under the Human Rights Commission Act 2005.
[1.122] Section
102 (5) (b)
substitute
(b) is a ground for the patient to make a complaint to the human rights
commission under the Human Rights Commission Act 2005.
Part
1.12 Remuneration Tribunal Act
1995
substitute
1 Name of Act
This Act is the Remuneration Tribunal Act 1995.
substitute
10 Inquiries about holders of certain
positions
(1) The tribunal must inquire into, and determine, the remuneration,
allowances and other entitlements of—
(a) the holders of the positions mentioned in schedule 1; and
(b) the holders of any other position or appointment notified in writing
to the tribunal by the Chief Minister for this paragraph.
(2) The tribunal is authorised under subsection (1) to inquire into, and
determine, the remuneration, allowances and other entitlements of the Chief
Justice or the President of the Court of Appeal only in relation to that
position in addition to any remuneration, allowances and entitlements of the
Chief Justice or the President as a resident judge or a judge of the Federal
Court.
(3) This section does not apply to—
(a) a resident judge who is also a judge of the Federal Court;
or
(b) a resident judge to whom the Supreme Court Act 1933,
section 37U applies; or
(c) an additional judge of the Supreme Court; or
(d) an acting judge of the Supreme Court.
(4) An instrument under subsection (1) (b) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(5) An instrument under subsection (1) (b) must be notified under the
Legislation Act within 14 days after the day the instrument is given to the
tribunal.
(6) The tribunal must inquire into, and determine, the remuneration,
allowances and other entitlements of the commissioner for health
complaints.
(7) Subsection (6) and this subsection expire on the day the Human
Rights Commission Act 2005 commences.
insert
Schedule 1 Positions to which Act
applies
(see s 10)
Part 1.1 Judicial
positions
• Chief Justice
• President of the Court of Appeal
• judge
• master of the Supreme Court
• Chief Magistrate
• magistrate
Part 1.2 Other
positions
• assistant executive officer of the legal aid commission
• auditor-general
• chief executive
• chief executive officer of the legal aid commission
• clerk of the Legislative Assembly
• community advocate
• director of public prosecutions
• director of the Canberra Institute of Technology
• disability and community services commissioner
• discrimination commissioner
• electoral commissioner
• executive within the meaning of the Public Sector Management Act
1994
• health services commissioner
• human rights commissioner
• president of the human rights commission
Part
1.13 Territory Records Act
2002
substitute
(2) This Act does not apply to records of the human rights commission in
relation to—
(a) a complaint made to the commission under the Health Records Act,
section 18; or
(b) the exercise of a function under the Human Rights Commission Act
2005 in relation to a complaint mentioned in paragraph (a).
Part
1.14 Victims of Crime Regulation
2000
[1.127] Section
42 (1) (c)
omit
commissioner
substitute
commission
substitute
(2) In this section:
commission means the human rights commission.
[1.129] Dictionary,
note 2
omit
• commissioner for health complaints
[1.130] Dictionary,
note 2
insert
• human rights commission
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2005.
2 Notification
Notified under the Legislation Act on 2005.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2005
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