Commonwealth Numbered Acts

Health Legislation Amendment Act 1982 No. 49 of 1982 - SECT 8

8. After section 19A of the Principal Act the following sections are inserted:
Commonwealth medical benefit not payable in respect of professional services
rendered by or on behalf of disqualified practitioners

''19B. (1) In this section, unless the contrary intention appears-

'determination' means a determination under sub-section (8) or (9);

'disqualification' means disqualification for the purposes of this section;

'disqualified practitioner' means a fully disqualified practitioner or a
partly disqualified practitioner;

'fully disqualified practitioner' means a practitioner who is disqualified for
the purposes of this section other than a partly disqualified practitioner;

'partly disqualified practitioner' means a practitioner who is disqualified
for the purposes of this section only in relation to particular professional
services or professional services included in a particular class of
professional services;

'patients', in relation to a practitioner, means the persons to whom the
practitioner or a person acting on behalf of the practitioner has rendered,
or, in the opinion of the Minister, may render, professional services;

'practitioner' means-

   (a)  a medical practitioner;

   (b)  a dental practitioner;

   (c)  a participating optometrist other than the Commonwealth, a State, the
        Northern Territory or an authority (being a corporation) established
        by a law of the Commonwealth, a State or an internal Territory;

   (d)  an optometrist other than a participating optometrist; or

   (e)  an approved pathology practitioner (other than a State or an
        authority, being a corporation, established by a law of a State or an
        internal Territory) in respect of whom there is in force an
        undertaking given by the approved pathology practitioner and accepted
        by the Minister under section 16C;

'relevant conviction day', in relation to a convicted practitioner, means the
day on which the practitioner became a convicted practitioner;

'relevant offence' means-

   (a)  an offence against section 129, 129AA or 129AAA of this Act; or

   (b)  an offence against-

        (i)    section 6, 7 or 7A of the Crimes Act 1914; or

        (ii)   sub-section 86 (1) of that Act by virtue of paragraph (a) of
               that sub-section,

being an offence that relates to an offence referred to in paragraph (a),

that is committed after the commencement of this section.

''(2) A practitioner becomes a convicted practitioner for the purposes of this
section if-

   (a)  in the case of a practitioner who has not previously been convicted of
        a relevant offence-he is simultaneously convicted of 2 or more
        relevant offences; or

   (b)  in the case of a practitioner who has previously been convicted of one
        relevant offence only-he is convicted of another relevant offence or
        of 2 or more other relevant offences.

''(3) A convicted practitioner ceases to be a convicted practitioner for the
purposes of this section at the end of the period of his disqualification that
resulted from his becoming a convicted practitioner subject to any subsequent
application of sub-section (2) in relation to him if he is convicted of a
relevant offence or relevant offences after the end of that period but, for
the purposes of that sub-section as so applying, he shall be deemed not to
have been convicted of any relevant offence before the end of that period.

''(4) A conviction of a practitioner of a relevant offence while the
practitioner is a convicted practitioner shall be disregarded for the purposes
of this section other than sub-sections (8), (9) and (19).

''(5) A reference in this section to a conviction of an offence includes a
reference to the making of an order under section 19B of the Crimes Act 1914
in relation to the offence.

''(6) A Commonwealth medical benefit is not payable in respect of a
professional service if-

   (a)  at the time when the service was rendered the person who rendered the
        service, or the practitioner on whose behalf the service was rendered,
        was a fully disqualified practitioner; or

   (b)  at the time when the service was rendered the person who rendered the
        service, or the practitioner on whose behalf the service was rendered,
        was a partly disqualified practitioner and the service was a
        professional service, or was included in a class of professional
        services, in relation to which the disqualification of the
        practitioner applied.

''(7) Subject to sub-section (21), a convicted practitioner is disqualified
for the purposes of this section during the period commencing-

   (a)  unless paragraph (b) applies-on the day next following the expiration
        of a period of 28 days, or such longer period as is prescribed for the
        purposes of this paragraph, after-

        (i)    the day on which the practitioner ceases to be entitled to make
               application under sub-section (8) to the Minister in respect of
               his disqualification; or

        (ii)   the day on which the practitioner would have so ceased to be
               entitled if he were not, by reason of the operation of
               sub-section (16), ineligible to make such an application; or

   (b)  if the practitioner makes application to the Minister in pursuance of
        sub-section (8)-

        (i)    except in a case to which sub-paragraph (ii) applies-on the day
               next following the expiration of a period of 56 days, or such
               longer period as is prescribed for the purposes of this
               sub-paragraph, after a statement of the decision of the
               Minister on the application is served on the practitioner under
               sub-section (13); or

        (ii)   if the practitioner makes an application to the Administrative
               Appeals Tribunal for review of the decision of the Minister
               (including a decision of the Minister upon a reconsideration of
               the kind referred to in sub-sub-paragraph (B) in respect of the
               application-

                (A)  unless sub-sub-paragraph (B) applies-on the day next
                     following the expiration of a period of 56 days, or such
                     longer period as is prescribed for the purposes of this
                     sub-sub-paragraph, after a copy of the decision of the
                     Tribunal on the application is served on the
                     practitioner; or

                (B)  if the Tribunal sets aside the decision to which the
                     application relates and remits the matter for
                     reconsideration in pursuance of paragraph 43 (1) (c) of
                     the Administrative Appeals Tribunal Act 1975-on the day
                     next following the expiration of 56 days, or such longer
                     period as is prescribed for the purposes of this
                     sub-sub-paragraph, after a statement of the decision of
                     the Minister upon the reconsideration is served on the
                     practitioner under sub-section (13), and ending, subject
                     to any determination of the kind referred to in paragraph
                     (8) (a) or (9) (a) that is in force in respect of the
                     practitioner, 3 years after the day first referred to in
                     paragraph (a), the day referred to in sub-paragraph
                     (b)(i) or the day referred to in sub-sub-paragraph (b)
                     (ii) (A) or (B), as the case requires.

''(8) Subject to sub-section (20), upon application made to the Minister by a
convicted practitioner within the period of 28 days, or within such longer
period as is prescribed for the purposes of this sub-section, after the
relevant conviction day, the Minister may, in his discretion, make either or
both of the following determinations:

   (a)  a determination that there shall be substituted for the period of 3
        years referred to in sub-section (7) such shorter period as is
        specified in the notice;

   (b)  a determination that the disqualification of the practitioner for the
        purposes of this section shall apply only in relation to specified
        professional services or professional services included in a specified
        class of professional services, and a determination so made shall be
        subject to such conditions (if any) as are specified by the Minister
        in that determination.

''(9) Upon application made to the Minister by a disqualified practitioner,
the Minister may, in his discretion, within the period of 28 days after
receiving the application, make either or both of the following
determinations:

   (a)  a determination that, with effect from and including-

        (i)    unless sub-paragraph (ii) applies-the day on which a statement
               of the decision of the Minister is served upon the practitioner
               under sub-section (13); or

        (ii)   if the period specified in the determination is a period longer
               than 56 days, or such longer period as is prescribed for the
               purposes of this paragraph-such day as the Minister specifies
               in the determination, being a day later than 56 days, or such
               longer period as is prescribed for the purposes of this
               paragraph, after a statement of the decision of the Minister is
               served upon the practitioner under sub-section (13),

there shall be substituted for the period of disqualification of the
practitioner remaining on the day on which the determination is made such
shorter period as is specified in the determination;

   (b)  a determination that, from and including such day as the Minister
        specifies in the determination, being a day later than 56 days, or
        such longer period as is prescribed for the purposes of this
        paragraph, after a statement of the decision of the Minister is served
        upon the practitioner under sub-section (13), the disqualification of
        the practitioner for the purposes of this section shall apply only in
        relation to specified professional services or professional services
        included in a specified class of professional services, and a
        determination so made shall be subject to such conditions (if any) as
        are specified by the Minister in that determination.

''(10) Without limiting the generality of the professional services or the
classes of professional services that may be specified in a determination
under paragraph (8) (b) or (9) (b), a professional service or a class of
professional services in such a determination may be described, in whole or in
part by reference to any one or more of the following:

   (a)  by reference to the persons, being specified persons or persons
        included in a specified class of persons, to whom professional
        services are rendered;

   (b)  by reference to the places, being specified places, or places included
        in a specified class of places, in which professional services are
        rendered;

   (c)  by reference to any other specified circumstance, or to a circumstance
        included in a specified class of circumstances, relating to the
        rendering of the professional services.

''(11) In the exercise of his powers to specify conditions to which a
determination under paragraph (8) (b) or (9) (b) is subject, the Minister
shall not be taken to be precluded from specifying conditions relating to
particular matters by reason only that professional services or classes of
professional services which may be specified in such a determination may be
described, in whole or in part, by reference to those matters.

''(12) Where an application is made under sub-section (9) by a practitioner in
respect of whom a determination is in force under paragraph (8) (b), the
Minister shall not make a determination under paragraph (9) (b) unless he is
of the opinion that the making of the determination will not be likely to have
the effect of reducing the level of income of the practitioner in respect of
professional services rendered by or on behalf of the practitioner to a level
below the level that would be the level of income of the practitioner if that
determination were not made.

''(13) Where the Minister makes a decision in relation to a practitioner under
sub-section (8) or (9), he shall forthwith upon the making of that decision,
cause to be served upon the practitioner, either personally or by post, a
statement in writing setting out the terms of the decision.

''(14) Where, in pursuance of sub-section (13), the Minister causes to be
served upon a practitioner a statement in writing setting out the terms of his
decision in relation to that practitioner under sub-section (8) or (9), he
shall ensure that there is included with that statement a further statement in
writing setting out the findings on material questions of fact, referring to
the evidence or other material on which those findings were based and giving
the reasons for his decision.

''(15) Where a determination is made under sub-section (9) in relation to a
practitioner in respect of whom a determination is in force under sub-section
(8), the last-mentioned determination continues in force except to the extent
(if any) to which it is inconsistent with the first-mentioned determination.

''(16) A convicted practitioner is not eligible to make an application under
sub-section (8) if he has at any time been a disqualified practitioner.

''(17) A disqualified practitioner is not eligible to make an application
under sub-section (9) if-

   (a)  he had at any time before the commencement of his disqualification
        been a disqualified practitioner;

   (b)  he had previously made such an application; or

   (c)  a determination was made in relation to him under sub-section (8) and
        that determination has been revoked under sub-section (19).

''(18) The Minister shall not exercise his powers under sub-section (8) or (9)
to make a determination in relation to a practitioner unless, having regard to
all matters that he considers to be relevant, including in particular, but
without limiting the generality of the foregoing, the likely effect of not
making a determination, or of not making a determination of a particular kind,
on the patients of the practitioner, he is satisfied that there are special
circumstances that warrant his so exercising his powers.

''(19) Where-

   (a)  a determination has been made under sub-section (8) or (9) in relation
        to a convicted practitioner and the practitioner contravenes or fails
        to comply with a condition to which the determination is subject; or

   (b)  a determination has been made under sub-section (8) or (9) in relation
        to a convicted practitioner and the practitioner is, after the making
        of that determination, convicted of a relevant offence committed after
        he became a convicted practitioner or an offence against sub-section
        19D (2) or (7), the Minister may, in his discretion, by notice in
        writing served on the practitioner, either personally or by post,
        revoke the determination, and in that event, the practitioner shall be
        taken for all purposes of this section to be a fully disqualified
        practitioner for the period commencing on such day as the Minister
        specifies in the notice, being a day not earlier than 56 days or such
        longer period as is prescribed for the purposes of this sub-section,
        after the service on him of the notice of revocation and expiring 3
        years after whichever of the following days is applicable to the
        practitioner, that is to say the day first referred to in paragraph
        (7) (a) or the day referred to in sub-paragraph (7) (b) (i) or
        sub-sub-paragraph (7) (b) (ii) (A) or (B).

''(20) Upon application made by a convicted practitioner, a court before which
proceedings by way of appeal from, or review of, a relevant conviction are
instituted may, by order in writing served on the Minister, either personally
or by post, upon such conditions (if any) as it thinks fit, determine that
there be substituted-

   (a)  for the period of 28 days referred to in sub-section (8); or

   (b)  if a longer period is prescribed for the purposes of that
        sub-section-for that longer period, such longer period as is specified
        in, or ascertained in accordance with, the order.

''(21) Where an application is made by a practitioner to a court in respect of
a decision of the Minister under sub-section (8) or a decision of the
Administrative Appeals Tribunal upon review of that first-mentioned decision,
the court may, by order in writing served on the Minister, either personally
or by post, upon such conditions (if any) as it thinks fit, determine that
there be substituted-

   (a)  for a period of 56 days referred to in sub-paragraph (7) (b) (i) or
        sub-sub-paragraph (7) (b) (ii) (A) or (B);

   (b)  if a longer period than 56 days is prescribed for the purposes of that
        sub-paragraph or that sub-sub-paragraph, as the case may be-for that
        longer period, such longer period as is specified in, or ascertained
        in accordance with, the order.

''(22) Where a court makes an order under sub-section (21) in relation to a
practitioner, the court may, by order in writing served on the Minister,
either personally or by post, upon such conditions (if any) as it thinks fit,
determine that there be substituted for the day that is the prescribed day in
relation to the practitioner for the purposes of section 19C, such other day
as is specified in, or ascertained in accordance with, the order.

''(23) Without prejudice to the meaning of the expressions 'dental
practitioner', 'medical practitioner' and 'optometrist' in any provision of
this Act or the National Health Act 1953, a disqualification of a practitioner
under this section shall not be taken to have lapsed by reason of the
suspension, under a law of a State or Territory, of the registration or
licence of the practitioner. Particulars of disqualifications under section
19B to be published, &c.

''19C. (1) In this section-

'convicted practitioner', 'determination', 'disqualified practitioner',
'patients' and 'practitioner' have the same respective meanings as those
expressions have in section 19B;

'prescribed day' means-

   (a)  in relation to a convicted practitioner to whom paragraph 19B (7) (a)
        applies-the day referred to in sub-paragraph 19B (7) (a) (i) or (ii),
        whichever is applicable;

   (b)  in relation to a convicted practitioner to whom sub-paragraph 19B (7)
        (b) (i) applies-the twenty-ninth day after the day on which the
        statement referred to in that sub-paragraph is served on the
        practitioner;

   (c)  in the case of a convicted practitioner to whom sub-sub-paragraph 19B
        (7) (b) (ii) (A) applies-the twenty-ninth day after the day on which a
        copy of the decision of the Administrative Appeals Tribunal referred
        to in that sub-sub-paragraph is served on the practitioner; and

   (d)  in the case of a convicted practitioner to whom sub-sub-paragraph 19B
        (7) (b) (ii) (B) applies-the twenty-ninth day after the day on which
        the statement referred to in that sub-sub-paragraph is served on the
        practitioner,

or, if another day is substituted by a court for the day applicable under
paragraph (b), (c) or (d), the day so substituted.

''(2) As soon as practicable after the day that is the prescribed day in
relation to a convicted practitioner, the Minister shall cause to be prepared
a statement setting out particulars of the disqualification resulting from the
practitioner becoming a convicted practitioner including the reasons for the
disqualification and explaining the effects of that disqualification.

''(3) Where the Minister makes a determination under sub-section 19B (9) in
relation to a practitioner, he shall, as soon as practicable, cause to be
prepared a statement setting out particulars of the determination including
the reasons for the determination and explaining the effects of that
determination.

''(4) Where the Minister revokes a determination, in relation to a
practitioner under sub-section 19B (19), the Minister shall, as soon as
practicable after the commencement of the period of 28 days, or such longer
period as is prescribed for the purposes of this sub-section, ending on the
day on which the practitioner becomes a fully disqualified practitioner by
virtue of the operation of that sub-section, cause to be prepared a statement
setting out particulars of the revocation of the determination including the
reasons for the revocation of the determination and explaining the effects of
that revocation.

''(5) Where a statement is prepared under sub-section (2), (3) or (4), the
Minister-

   (a)  shall, as soon as practicable after the preparation of the statement,
        and from time to time thereafter, may, cause the statement, or an
        abstract of the statement, to be published in the prescribed manner;
        and

   (b)  shall, within 15 sitting days of each House of the Parliament after
        the preparation of the statement, cause a copy of the statement to be
        laid before that House.

''(6) An action or proceeding, civil or criminal, does not lie against a
person for publishing in good faith a copy of, a fair extract from, or a fair
abstract of, a statement published in accordance with this section.

''(7) For the purposes of sub-section (6), a publication shall be deemed to be
made in good faith if the person by whom it is made is not activated by ill
will to the person affected by the publication or by any other improper
motive.

''(8) Nothing in sub-section (6) or (7) limits or prevents the operation of
any rule of absolute privilege relating to the publication by either House of
the Parliament of any document laid before it.

''(9) Nothing in this section authorizes the publication of the name of a
patient or particulars that would enable a patient to be identified.

''(10) A reference in this section to the effects of the disqualification of a
practitioner, of a determination made under sub-section 19B (9) in relation to
a practitioner or of the revocation of a determination made under sub-section
19B (8) or (9) in relation to a practitioner shall be read as a reference to
the effects of the disqualification, determination or revocation on the
financial relationships (if any) between all or any of the following, namely,
the practitioner, any other practitioner, the Commonwealth, any registered
organization and the patients of the practitioner. Offences in relation to
disqualifications under section 19B

''19D. (1) Subject to this section, the Minister may, by instrument in writing
served, either personally or by post, on a convicted practitioner after the
day that is the prescribed day in relation to the practitioner, direct that,
with effect from and including such day as the Minister specifies in the
direction, being a day not earlier than the day on which the practitioner
becomes a disqualified practitioner, the practitioner, or a person acting on
behalf of the practitioner, shall not render a specified professional service
or a professional service included in a specified class of specified services,
being a professional service or professional services for which, under section
19B, a Commonwealth medical benefit is not payable, unless, before commencing
to render that professional service-

   (a)  in a case to which paragraph (b) does not apply-the practitioner or
        the person acting on his behalf causes to be given to the person to
        whom the professional service is to be rendered a copy of such notice
        as is furnished to the practitioner with the instrument, being a
        notice setting out particulars of the disqualification of the
        practitioner and explaining such of the effects of that
        disqualification as the Minister considers appropriate; or

   (b)  in a case where the practitioner or the person acting on his behalf
        has reasonable grounds for believing that the person to whom the
        service is to be rendered is, or may be, unable to read and understand
        the notice referred to in paragraph (a)-the practitioner or the person
        acting on his behalf causes to be taken such steps as are reasonable
        in all the circumstances to inform the person, or, if that person is
        in the care of another person, to inform that other person, of the
        particulars of the disqualification set out in that notice, and to
        explain to the person or to that other person, as the case requires,
        such of the effects of the disqualification as are set out in that
        notice.

''(2) A practitioner who, without reasonable excuse-

   (a)  refuses or fails to comply with a direction contained in an instrument
        served on him under sub-section (1); or

   (b)  causes or permits a person acting on his behalf to refuse or fail to
        comply with such a direction, is guilty of an offence punishable upon
        conviction by a fine not exceeding $100.

''(3) Subject to this section, the Minister may, by instrument in writing
served, either personally or by post, on a convicted practitioner after the
day that is the prescribed day in relation to the practitioner, direct the
practitioner to display in such place as is, or such places as are, and in
such manner and during such period as is, specified in the instrument, such
notice as is, or such notices as are, furnished to the practitioner with that
instrument for the purpose of being displayed by him.

''(4) The Minister shall not exercise his powers under sub-section (3) except
for the purpose of publishing to the patients of a convicted practitioner a
statement setting out particulars of the disqualification of the practitioner
and explaining the effects of that disqualification.

''(5) Where a direction under sub-section (3) is in force, the Minister shall
not give a further direction under that sub-section that specifies a period
that includes the whole or any part of the period specified in that
first-mentioned direction unless he revokes the first-mentioned direction with
effect from the expiration of the day immediately preceding the
first-mentioned period.

''(6) Unless sooner revoked, a direction given under sub-section (1) or (3)
that is in force in relation to a convicted practitioner continues in force in
relation to that practitioner-

   (a)  unless paragraph (b) or (c) applies-until the practitioner ceases to
        be a convicted practitioner;

   (b)  if a determination is made under sub-section 19B (9) in relation to
        the practitioner-until the expiration of the day immediately preceding
        the day on which the determination comes into effect; or

   (c)  if, by a notice of revocation given under sub-section 19B (19), a
        determination made under sub-section 19B (8) or (9) in relation to the
        practitioner is revoked-until the expiration of the day immediately
        preceding the day specified in the notice of revocation, but nothing
        in this sub-section precludes the giving of a further direction, in a
        case to which paragraph (b) or (c) applies, at any time after the
        first-mentioned direction ceases, by virtue of that paragraph, to be
        in force.

''(7) A practitioner who, without reasonable excuse, refuses or fails to
comply with a direction contained in an instrument served on him under
sub-section (3) is, in respect of each day during which he so refuses or fails
to comply with the direction (including the day of a conviction under this
sub-section or any subsequent day), guilty of an offence punishable on
conviction by a fine not exceeding $100.

''(8) Where, under sub-section (3), an act or thing is required to be done
within a particular period or before a particular time, the obligation to do
that act or thing continues, notwithstanding that that period has expired or
that time has passed, until that act or thing is done.

''(9) Charges against the same person for any number of offences against
sub-section (7) may be joined in the same information or complaint if those
offences relate to a failure to do the same act or thing.

''(10) If a person is convicted of 2 or more offences referred to in
sub-section (9), being offences related to a refusal or failure to do the same
act or thing, the court may impose one penalty in respect of both or all of
those offences, but that penalty shall not exceed the sum of the maximum
penalties that could be imposed if a penalty were imposed in respect of each
offence separately.

''(11) In this section-

'convicted practitioner', 'disqualified practitioner', 'patients' and
'practitioner' have the same respective meanings as in section 19B;

'prescribed day' has the same meaning as in section 19C.

''(12) In this section, a reference to the effects of the disqualification of
a practitioner shall be construed in the same manner as such a reference is
required to be construed for the purposes of section 19C. Review of decisions
relating to disqualification

''19E. (1) Subject to sub-section (2), applications may be made to the
Administrative Appeals Tribunal for review of decisions of the Minister under
sub-section 19B (8), (9) or (19).

''(2) A person in relation to whom paragraph 19B (19) (b) applies is not
entitled to make an application to the Administrative Appeals Tribunal for
review of a decision of the Minister under sub-section 19B (19).

''(3) Notwithstanding paragraph 29 (1) (d) and sub-section 29 (2) of the
Administrative Appeals Tribunal Act 1975, an application to the Administrative
Appeals Tribunal for review of a decision of the Minister under sub-section
19B (8) of this Act shall be lodged with the Tribunal within the period of 28
days after the day on which the statement of that decision was served on the
practitioner under sub-section 19B (13) of this Act.

''(4) Sub-section 29 (7) of the Administrative Appeals Tribunal Act 1975 does
not apply in relation to an application to the Administrative Appeals Tribunal
for review of the decision of the Minister under sub-section 19B (8) of this
Act.

''(5) The Administrative Appeals Tribunal may, upon application being made to
it by the Minister, if the Tribunal is of the opinion that an application for
a review of a decision under section 19B (8), (9) or (19) is not being pursued
with due expedition, dismiss that application without proceeding to review the
decision, or, if the Tribunal has commenced to review the decision, without
completing the review, and, where the Tribunal so dismisses an application,
the applicant is not entitled to make a further application to the Tribunal
for review of that decision.

''(6) In this section, 'decision' has the same meaning as in the
Administrative Appeals Tribunal Act 1975.''.