Commonwealth Numbered Acts

Health Legislation Amendment Act 1982 No. 49 of 1982 - SECT 30

30. (1) Section 106F of the Principal Act is repealed and the following
sections are substituted:

''106F. Where, after consideration of a matter referred to a Committee by the
Minister and of any documents that accompany the reference supplied by the
Minister, it appears to the Committee that-

   (a)  in the case of a question referred to the Committee under section
        23B-the Minister may be justified in refusing to accept the
        undertaking concerned;

   (b)  a participating optometrist may have failed to comply with an
        undertaking given by the participating optometrist and accepted by the
        Minister under section 23B;

   (c)  an optometrist (whether or not a participating optometrist) may have
        rendered excessive services;

   (d)  a participating optometrist may have caused or permitted an
        optometrist employed by the participating optometrist to render
        excessive services;

   (e)  a person, being an officer of a participating optometrist that is a
        body corporate, may have caused or permitted an optometrist employed
        by the participating optometrist to render excessive services, the
        Committee shall-

   (f)  unless paragraph (g) applies-conduct a single hearing into the matter;
        or

   (g)  if it is satisfied that it is appropriate to do so-conduct 2 or more
        separate hearings into the matter, each hearing being a hearing into
        the matter in so far as the matter relates to one or more of the
        circumstances referred to in paragraphs (a) to (e) inclusive. Notice
        to participating optometrist or other person of hearing

''106FA. (1) A Committee shall-

   (a)  if it proposes to hold a hearing into a matter in so far as the matter
        relates to a circumstance referred to in paragraph 106F (a) or
        (b)-give or cause to be given to the participating optometrist
        concerned; or

   (b)  if it proposes to hold a hearing into a matter in so far as the matter
        relates to a circumstance referred to in paragraph 106F (c), (d) or
        (e)-give or cause to be given to the person first referred to in that
        paragraph, notice in writing of the time and place of the proposed
        hearing at least 10 days before the date of the proposed hearing.

''(2) A notice under sub-section (1) shall give particulars of the matter to
which the hearing relates.

''(3) A notice under sub-section (1) may be served on a person either
personally or by post. Summons to relevant persons to attend hearings, &c.

''106FB. (1) For the purposes of a hearing, a member may, by writing under his
hand, summon a person who is, in relation to that hearing, a relevant person
to produce such documents (if any) as are referred to in the summons and to
appear at the hearing to give evidence for the purpose only of identifying any
such documents.

''(2) A summons under this section may be served upon the relevant person
concerned personally or by post. Attendance of persons at hearing

''106FC. (1) Where a relevant person is summoned under section 106FB to attend
a hearing he shall attend in person, and may be represented by another person,
at the hearing.

''(2) Where notice of a hearing has been served under section 106FA on a
person other than a body corporate and the person has not been summoned under
section 106FB to attend the hearing he may attend in person, or may be
represented by another person at the hearing.

''(3) Where notice of a hearing has been served under section 106FA on a body
corporate, one of the officers of the body corporate, whether or not he is
also required to attend the hearing in pursuance of a summons under section
106FB, may attend, or may also attend, as the case requires, in person to
represent the body corporate, or the body corporate may be represented by
another person, at the hearing.''. Rights of relevant persons at hearing

''106FD. (1) Where a relevant person attends, appears or is represented at a
hearing in accordance with sub-section 106FC (1), (2) or (3), he or his
representative, as the case requires, shall be given the opportunity to give
evidence, and to call witnesses, on behalf of the relevant person, to examine
other witnesses appearing at the hearing and to address the Committee.

''(2) Where a relevant person attends or appears at a hearing to represent a
body corporate of which he is an officer, or the body corporate is represented
by another person, that relevant person or that other person, as the case
requires, shall be given the opportunity to give evidence, and to call
witnesses, on behalf of the body corporate, to examine other witnesses
appearing at the hearing and to address the Committee. Allowances for
witnesses at hearing

''106FE. A person summoned (otherwise than under section 106FB) to appear as a
witness at a hearing before the Committee is entitled to be paid allowances,
fixed by or in accordance with the regulations, for expenses in respect of his
attendance. Failure to attend

''106FF. (1) A person served with a summons to appear at a hearing shall not,
without reasonable excuse-

   (a)  fail to appear as required by the summons; or

   (b)  fail to appear and report himself from day to day unless excused, or
        released from further attendance, by a member.

''(2) A relevant person served with a summons to attend a hearing shall not,
without reasonable excuse-

   (a)  fail to attend as required by the summons; or

   (b)  fail to attend and report himself from day to day unless excused, or
        released from further attendance, by a member.

Penalty: $1,000. Refusal to be sworn or to answer questions

''106FG. (1) A person appearing as a witness at a hearing (whether summoned to
appear or not) shall not, without reasonable excuse-

   (a)  refuse or fail to be sworn or to make an affirmation;

   (b)  refuse or fail to answer a question that he is required to answer; or

   (c)  refuse or fail to produce a document that he is required under this
        Act to produce.

Penalty: $1,000.

''(2) A relevant person attending before the Committee shall not, without
reasonable excuse, refuse or fail to produce a document that he is required to
produce by a summons under section 106FB.

Penalty: $1,000.

''(3) A statement or disclosure made by a witness at a hearing is not
admissible in evidence against him in civil or criminal proceedings in a court
except in a prosecution for giving false testimony at the hearing.

''(4) A document produced at a hearing by a relevant person is not admissible
in evidence against him or against a body corporate of which he is an officer
in criminal proceedings except in a prosecution under or arising out of this
Act or the regulations or the National Health Act 1953 or regulations made
under that Act.

''(5) It is a defence in proceedings for an offence for refusing or failing,
without reasonable excuse, to produce a document at a hearing if it is proved
that the document was not relevant to the subject matter of the hearing.
Report by Committee

''106FH. After completion by a Committee of a hearing in relation to a matter,
the Committee shall report to the Minister its opinion on the matter, and, in
a case where the Committee, in the report, expresses the opinion-

   (a)  that an optometrist (whether or not a participating optometrist) who
        is specified in the report has rendered excessive services; or

   (b)  that a person specified in the report has caused or permitted an
        optometrist-

        (i)    who is employed by the person so specified; or

        (ii)   who is employed by a body corporate of which the person so
               specified is an officer,

to render excessive services, the report shall identify the excessive
services. Recommendation by Committee

''106FJ. (1) Where a report by a Committee under section 106FH relates to a
question referred to the Committee under section 23B, the Committee shall, in
the report-

   (a)  recommend to the Minister that he accept the undertaking concerned; or

   (b)  recommend to the Minister that he refuse to accept the undertaking
        concerned.

''(2) Where-

   (a)  a Committee has, in a report under section 106FH, expressed the
        opinion that an optometrist (whether or not a participating
        optometrist) has rendered excessive services and has identified those
        services; and

   (b)  a medical benefit is payable, or has been paid, in respect of any of
        those services, the Committee may, in the report, make one or more of
        the following recommendations:

   (c)  that the optometrist be reprimanded;

   (d)  that the optometrist be counselled;

   (e)  in the case of the rendering of excessive services by a participating
        optometrist-that the acceptance by the Minister of the undertaking by
        the participating optometrist under section 23B be revoked, either
        wholly or in so far as the undertaking covers particular premises;

   (f)  where a medical benefit is payable, but has not been paid, to the
        optometrist-that the medical benefit or a specified part of the
        medical benefit cease to be payable;

   (g)  where a medical benefit has been paid to the optometrist or has been
        paid, or is payable, to another person (including a participating
        optometrist by whom the first-mentioned optometrist is employed)-that
        the amount of the medical benefit or a specified part of that amount
        be payable by the optometrist-

        (i)    in the case of a benefit paid or payable by the Commonwealth-to
               the Commonwealth; or

        (ii)   in the case of a benefit paid or payable by a registered
               organization-to that organization.

''(3) Where-

   (a)  a Committee has, in a report under section 106FH-

        (i)    expressed the opinion that a person has caused or permitted an
               optometrist-

                (A)  who is employed by the first-mentioned person; or

                (B)  who is employed by a body corporate of which the
                     first-mentioned person is an officer,

to render excessive services; and

        (ii)   identified those services; and

   (b)  a medical benefit is payable, or has been paid, in respect of any of
        those services, the Committee may in the report make one or more of
        the following recommendations:

   (c)  that the first-mentioned person, being a person other than a body
        corporate, be reprimanded;

   (d)  that the first-mentioned person, being a person other than a body
        corporate, be counselled;

   (e)  where the first-mentioned person, being a participating optometrist,
        has wilfully authorized or permitted an optometrist employed by the
        first-mentioned person to render excessive services-that the
        acceptance by the Minister of the undertaking by the participating
        optometrist under section 23B be revoked, either wholly or in so far
        as the undertaking covers particular premises;

   (f)  where the medical benefit is payable, but has not been paid, to the
        first-mentioned person-that the medical benefit or a specified part of
        the medical benefit cease to be payable;

   (g)  where the medical benefit has been paid to the first-mentioned person
        or has been paid or is payable to a person other than the
        first-mentioned person-that the amount of the medical benefit or a
        specified part of that amount be payable by the first-mentioned
        person-

        (i)    in the case of a benefit paid or payable by the Commonwealth
               -to the Commonwealth; or

        (ii)   in the case of a benefit paid or payable by a registered
               organization-to that organization.

''(4) Where a Committee has, in a report under section 106FH, expressed the
opinion that a participating optometrist has failed to comply with an
undertaking given by the participating optometrist and accepted by the
Minister under section 23B, the Committee may, in the report, make one or more
of the following recommendations:

   (a)  that the participating optometrist, being a participating optometrist
        other than a body corporate, be reprimanded;

   (b)  that the participating optometrist, being a participating optometrist
        other than a body corporate, be counselled;

   (c)  that the acceptance by the Minister of the undertaking by the
        participating optometrist under section 23B be revoked, either wholly
        or in so far as the undertaking covers particular premises;

   (d)  that, where a medical benefit is payable, but has not been paid, to
        the participating optometrist in respect of a professional service and
        the Committee is of the opinion that the participating optometrist
        failed to comply with that undertaking in relation to that service,
        the medical benefit or a specified part of the medical benefit cease
        to be payable;

   (e)  that, where a medical benefit has been paid to the participating
        optometrist, or has been paid, or is payable, to another person, in
        respect of a professional service and the Committee is of the opinion
        that the participating optometrist failed to comply with that
        undertaking in relation to that service, the amount of the medical
        benefit or a specified part of that amount be payable by the
        participating optometrist-

        (i)    in the case of a benefit paid or payable by the Commonwealth-to
               the Commonwealth; or

        (ii)   in the case of a benefit paid or payable by a registered
               organization-to that organization.

''(5) Where, in its report, a Committee recommends under sub-section (1) the
refusal of the acceptance of an undertaking, or makes a recommendation under
sub-section (2), (3) or (4), it shall send to the Minister with the report a
transcript of the proceedings at the hearing to which the report relates, and
shall return any documents that accompanied the reference. Determination by
Minister

''106FK. (1) Where a Committee makes a recommendation referred to in
sub-section 106FJ (2), (3) or (4), the Minister may make a determination, in
writing, in accordance with that recommendation.

''(2) Where the Minister makes a determination under sub-section (1) he shall
serve, either personally or by post, on the person to whom the determination
relates, a notification in writing setting out the determination.

''(3) Where the Minister makes a determination under sub-section (1), then-

   (a)  if no request for review of the determination under Division 3 of Part
        VA or application for judicial review of the determination under
        Division 4 of that Part is lodged within the period allowed for such a
        request or application, the determination takes effect at the
        expiration of that period;

   (b)  if a request for review of the determination under Division 3 of Part
        VA or an application for judicial review of the determination under
        Division 4 of that Part is lodged within the period allowed for such a
        request or application, then-

        (i)    if the determination is set aside on the review-subject to
               paragraph (c), the determination does not take effect; or

        (ii)   if the determination is affirmed, or varied, on the review and
               no appeal against the decision on the review is brought by
               virtue of section 124A within the period allowed for such an
               appeal-the determination takes effect, or takes effect as so
               varied, at the expiration of that period; or

   (c)  if an appeal against the decision on a review under Division 3 of Part
        VA or a judicial review under Division 4 of that Part is brought by
        virtue of section 124A within the period allowed for such an appeal,
        the determination does not have effect until the appeal, and any
        further appeal or appeals, are determined and, upon the determination
        of the appeal and any such further appeal or appeals, the
        determination takes effect or takes effect as varied or does not take
        effect, in accordance with the judgment or order on the appeal or
        further appeal or appeals.

''(4) Where a determination under sub-section (1) provides for the payment of
an amount to a registered organization, the Minister shall, as soon as
practicable after the determination takes effect, forward to the organization
a copy of the determination.''.

(2) Where, immediately before the commencement of this section, regulations
were in force under section 100 of the Principal Act as it applies in relation
to Optometrical Services Committees of Inquiry by virtue of the operation of
section 106D of that Act, those regulations continue in force after the
commencement of this section as if they were regulations made for the purposes
of section 106FE of the Principal Act as amended by this Act.