Commonwealth Numbered Acts

HEALTH LEGISLATION AMENDMENT ACT (No. 2) 1985 No. 167 of 1985 - SECT 48

48. After Part VA of the Principal Act the following Part is inserted:

"PART VB - MEDICARE PARTICIPATION REVIEW
COMMITTEES Interpretation

"124B. (1) In this Part, unless the contrary intention appears -
'Chairperson' means a Chairperson of Medicare Participation Review
Committees appointed under section 124C;
'Committee' means a Medicare Participation Review Committee
established under section 124E;
'determination' means a determination made under sub-section 124F (2);
'hearing' means a hearing conducted by a Committee under sub-section
124G (1);
'legal practitioner' means a person who is enrolled as a legal practitioner
of the High Court, of another federal court or of the Supreme
Court of a State or Territory;
'member', in relation to a Committee, includes the Chairperson;
'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, the
Northern Territory 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 accepted
by the Minister under section 16C;
'professional organisation' means an organisation or association declared
by the regulations to be a professional organisation for the purposes
of this definition;
'relevant offence' means -

   (a)  an offence against section 128A, 128B, 129, 129AA or 129AAA
of this Act, being an offence that is committed after the
commencement of this Part;

   (b)  an offence against section 129, 129AA or 129AAA of this Act
as in force before the commencement of this Part, being an
offence of which a person has been convicted after the
commencement of this Part; or

   (c)  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 -

        (iii)  relates to an offence referred to in paragraph (a) and
is committed after the commencement of this Part; or

        (iv)   relates to an offence referred to in paragraph (b) and
is an offence of which a person has been convicted
after the commencement of this Part.

"(2) A reference in this Part 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.

"(3) In this Part, a reference to an appeal against a conviction includes a
reference to -

   (a)  an appeal against a decision of a court wholly or partly dismissing
an appeal against the conviction;

   (b)  where an appeal lies only by leave or special leave - an application
for leave or special leave to appeal; or

   (c)  any proceedings in which the validity of the conviction is in
        question, and a reference to a right to appeal against a conviction
        shall be construed accordingly. Chairpersons

"124C. (1) The Minister shall appoint such number of persons to be the
Chairpersons of Medicare Participation Review Committees as the Minister
thinks necessary.

"(2) A Chairperson may be appointed on a full-time or a part-time basis.

"(3) The Minister shall not appoint a person as a Chairperson unless that
person is a legal practitioner and has been a legal practitioner for not less
than 5 years.

"(4) Subject to this section, a Chairperson holds office for such period, not
exceeding 5 years, as is specified in the instrument of appointment, but is
eligible for re-appointment.

"(5) A Chairperson may resign from office by writing signed by the Chairperson
and delivered to the Minister.

"(6) The Minister may terminate the appointment of a Chairperson because of
misbehaviour or physical or mental incapacity.

"(7) A Chairperson may be referred to as a Chairman or a Chairwoman, as the
case requires. Chairpersons, &c., to be notified if practitioner convicted of
relevant offence

"124D. (1) This section applies in relation to a conviction of a practitioner
where -

   (a)  the practitioner has been convicted of a relevant offence;

   (b)  all the rights of the practitioner to appeal against the conviction
(other than the right to apply for an extension of the time for
instituting such an appeal) have been exhausted or have expired;
and

   (c)  the conviction has not been wholly set aside.

"(2) Within 28 days after this section commences to apply in relation to a
conviction of a practitioner, the Minister shall, if an appeal, or an
application for an extension of the time for instituting an appeal, against
the conviction is not pending, give to the Chairperson a notice in writing
setting out the details of the conviction and, at or about the same time, give
to the practitioner a copy of the notice.

"(3) Where -

   (a)  a practitioner is subject to a period of disqualification by virtue of
having been convicted of offences before the commencement of this
Part; and

   (b)  no appeal against any of the convictions is pending, the practitioner
        may apply in writing to the Minister for the disqualification to be
        reviewed by a Committee, and, upon receiving such an application, the
        Minister shall give to a Chairperson a notice in writing setting out
        the details of the convictions and, at or about the same time, give to
        the practitioner a copy of the notice.

"(4) In sub-section (3), 'disqualification' has the same meaning as it had in
section 19B before the commencement of this Part.

"(5) Where a notice is given to a Chairperson under sub-section (3), the
offences in respect of which details of convictions are set out in the notice
shall, for the purposes of sections 124E and 124F, be deemed to be relevant
offences.

"(6) Where a Chairperson who is given a notice under this section has a direct
or indirect interest (whether pecuniary or otherwise) in a matter that is
about to be the subject of proceedings before a Committee that the Chairperson
would, but for this sub-section, be required to establish under section 124E -

   (a)  the Chairperson shall immediately inform the Minister of that
interest;

   (b)  the Chairperson shall be deemed not to be required to establish,
and shall not establish, a Committee under section 124E; and

   (c)  the Minister shall give another notice in the same terms to another
Chairperson. Chairperson to establish Medicare Participation Review Committee

"124E. (1) Except where sub-section (2) applies, upon receiving a notice under
section 124D in relation to the conviction of a practitioner, a Chairperson
shall, if an appeal, or an application for an extension of the time for
instituting an appeal, against the conviction is not pending, establish a
Medicare Participation Review Committee.

"(2) Where -

   (a)  a Chairperson receives a notice under section 124D in relation to a
practitioner;

   (b)  a Medicare Participation Review Committee has already been
established under sub-section (1) in relation to the practitioner; and

   (c)  the Committee has yet to make a determination in relation to the
practitioner, the Chairperson shall as soon as practicable bring the notice to
the attention of the Committee.

"(3) A Committee established under sub-section (1) shall consist of the
following members:

   (a)  the Chairperson;

   (b)  subject to sub-sections (8), (9) and (11), a person selected by the
Chairperson from a list submitted under sub-section (4);

   (c)  subject to sub-sections (9) and (11), a person selected by the
Chairperson from the persons nominated by the Minister under
subsection

(5) .

"(4) A professional organisation may submit to the Minister a list of names of
persons nominated for the purposes of paragraph (3) (b).

"(5) The Minister may nominate persons for the purposes of paragraph (3) (c).

"(6) The nomination of a person under sub-section (4) or (5) may be revoked at
any time -

   (a)  by the person nominated - by writing signed by that person and
delivered to the Minister; or

   (b)  by the Minister - by writing signed by the Minister and delivered to
the person nominated.

"(7) The Minister shall keep each Chairperson informed in writing of the
persons nominated under sub-section (4) or (5) and of any revocation of a
nomination under sub-section (6).

"(8) Where no person is available for a Chairperson to select in accordance
with paragraph (3) (b) in constituting a Committee, the Minister shall appoint
to the Committee the person whom the Minister considers to be the most
appropriate person to be appointed to the Committee in place of a person to be
selected in accordance with paragraph (3) (b), and that person shall, for the
purposes of this Part, be deemed to have been selected in accordance with
paragraph (3) (b).

"(9) Where a member of a Committee selected in accordance with paragraph (3)
(b) or (c) has a direct or indirect interest (whether pecuniary or otherwise)
in a matter that is, or is about to be, the subject of proceedings before the
Committee -

   (a)  the member shall immediately inform the Chairperson of that
interest;

   (b)  the member shall be deemed to be disqualified from membership of
the Committee; and

   (c)  another selection shall be made in accordance with paragraph (3) (b)
or (c), as the case requires.

"(10) Where a Committee has been established under this section and an officer
of the Commission gives to the Committee, or to the Chairperson, information
for the purpose of assisting the Committee in making a determination in
relation to a practitioner, the General Manager of the Commission shall, at or
about the same time, give to the practitioner a copy of the information.

"(11) Where the practitioner in relation to whom a Committee is convened is -

   (a)  a medical practitioner or an approved pathology practitioner;

   (b)  a dental practitioner; or

   (c)  an optometrist, the person selected by the Chairperson under paragraph
        (3) (b) or (c) shall be -

   (d)  where paragraph (a) applies - a medical practitioner;

   (e)  where paragraph (b) applies - a dental practitioner; or

   (f)  where paragraph (c) applies - an optometrist. Determinations

"124F. (1) Subject to sub-sections 124J (8) and 124T (3), a Committee
established in relation to a practitioner shall make a determination in
relation to the practitioner in respect of the commission by the practitioner
of any relevant offence that is the subject of a notice under section 124D and
has not been the subject of a previous determination by a Committee.

"(2) A Committee shall, in making a determination in relation to a
practitioner, determine that -

   (a)  no action should be taken against the practitioner;

   (b)  it should counsel the practitioner;

   (c)  it should reprimand the practitioner;

   (d)  the practitioner is disqualified in respect of one or more of the
following:

        (i)    the provision of specified professional services, or the
               provision
of professional services other than specified professional
services;

        (ii)   the provision of professional services to a specified class of
persons, or the provision of professional services to persons
other than persons included in a specified class of persons;

        (iii)  the provision of professional services within a specified
location, or the provision of professional services otherwise
than within a specified location; or

   (e)  the practitioner is fully disqualified.

"(3) In making a determination in relation to a practitioner, a Committee
shall -

   (a)  without limiting the generality of the matters to which it may have
regard in making the determination, have regard to the nature of,
and the circumstances concerning the commission of -

   (i)  each relevant offence of which the practitioner has been
convicted; and

   (ii) each offence of which the practitioner has been convicted
before the commencement of this Part, being an offence that
would have been a relevant offence if the conviction had
occurred after that commencement; and

   (b)  comply with guidelines in force under section 124H.

"(4) A determination shall be made in writing.

"(5) Where a Committee determines under paragraph (2) (d) or (e) that a
practitioner is disqualified, the Committee shall specify in the determination
the period over which the disqualification is to have effect, being a period
that ends -

   (a)  where the determination is a review of a period of disqualification
referred to in sub-section 124D (3) - on or before the day on which
that period of disqualification is to come to an end; or

   (b)  in any other case - within 5 years after the day on which the
determination comes into effect. Hearings

"124G. (1) Subject to sub-section (2) and to sub-section 124J (8), a Committee
shall not make a determination in relation to a practitioner unless it has
conducted a hearing.

"(2) In accordance with guidelines (if any) in force under section 124H
relating to this sub-section, a Committee may, without conducting a hearing in
relation to a practitioner, make a determination, upon the evidence or other
material available to the Committee, that no action should be taken against
the practitioner.

"(3) A practitioner in relation to whom a Committee is established may make a
written submission to the Committee requesting that the Committee make a
determination under sub-section (2). Guidelines relating to making of
determinations

"124H. (1) The Minister may,by instrument in writing, make guidelines to be
applied by Committees with respect to the making of determinations under
sub-sections 124F (2) and 124G (2).

"(2) Without limiting the generality of the matters to which guidelines made
under sub-section (1) may relate, guidelines may specify circumstances in
which determinations of specified kinds under sub-section 124F (2) and
determinations under sub-section 124G (2) may be made.

"(3) Sections 48, 49 and 50 of the Acts Interpretation Act 1901 apply to
guidelines made under sub-section (1) as if in those provisions references to
regulations were references to guidelines, reference to a regulation were
references to a provision of a guideline and references to repeal were
references to revocation.

"(4) Guidelines shall not be taken to be statutory rules within the meaning of
the Statutory Rules Publication Act 1903, but sub-sections 5 (3) to (3c)
(inclusive) of tha Act apply in relation to guidelines as they apply to
statutory rules.

"(5) For the purposes of the application of sub-section 5(3B) of the Statutory
Rules Publication Act 1903 in accordance with sub-section (4) of this section,
the reference in that first-mentioned sub-section to the Minister of State for
Sport, Recreation and Tourism shall be read as a reference to the Minister
administering this Act.

"(6) Section 5 of the Evidence Act 1905 applies to guidelines as that section
applies to an order made by the Minister. Procedure of hearings

"124J. (1) A hearing by a Committee shall be convened by, and shall be held at
a place determined by, the Chairperson.

"(2) The Chairperson shall, at least 28 days before the commencement of a
proposed hearing in relation to a practitioner, give a notice in writing to
the practitioner setting out -

   (a)  the time and place of the proposed hearing; and

   (b)  particulars of the matter to which the proposed hearing relates.

"(3) At a hearing by a Committee, the Chairperson or, in the absence of the
Chairperson as described by sub-section (7), another member of the Committee
nominated by the Minister shall preside.

"(4) Where a Committee conducts a hearing in relation to a practitioner -

   (a)  the practitioner may attend the hearing in person, and may be
represented at the hearing by another person; and

   (b)  where the practitioner so attends the hearing or is so represented
at the hearing - the practitioner or the representative, as the case
requires, shall be given the opportunity to give evidence, and to call
witnesses, on behalf of the practitioner, to examine other witnesses
appearing at the hearing and to address the Committee.

"(5) At a hearing conducted by a Committee -

   (a)  the procedure of the hearing is, subject to this Act, within the
discretion of the Committee;

   (b)  the hearing shall be conducted with as little formality and
technicality, and with as much expedition, as the requirements of
this Act, and a proper consideration of the matter before the
Committee, permit; and

   (c)  the Committee is not bound by the rules of evidence and may
inform itself on any matter in such manner as it thinks appropriate.

"(6) A Committee may take evidence at a hearing on oath or affirmation, and
any member may administer an oath or affirmation for that purpose.

"(7) Where a Committee has commenced a hearing in relation to a practitioner
and, before the Committee makes a determination, a member of the Committee has
ceased to be such a member or, for any other reason, is unable to take any
further part in the hearing or in the making of the determination, the 2
remaining members of the Committee may, if the practitioner consents,
constitute the Committee for the purpose -

   (a)  if the hearing has not been completed - of completing the hearing;
and

   (b)  if both members agree as to what determination should be made -
of making the determination.

"(8) If, for any reason, after a Committee has been established, it is not
reasonably practicable for the Committee to continue to perform its functions,
the Chairperson shall establish another Committee under section 124E to make
the determination, and that Committee -

   (a)  may have regard to any evidence and other material given to, and
arguments adduced before, the first-mentioned Committee and the
reasons for any decision made by the first-mentioned Committee;
and

   (b)  if the first-mentioned Committee has completed a hearing in relation
to the practitioner - notwithstanding sub-section 124G (1), is not
required to conduct a hearing in relation to the practitioner.

"(9) A Committee is not empowered to order the payment of costs. Hearings to
be in public except in special circumstances

"124K. (1) Subject to this section, all hearings of Committees shall be
conducted in public.

"(2) Where a Committee is satisfied that it is desirable to do so because of
the confidential nature of any evidence or matter or for any other reason, the
Committee may, by order -

   (a)  direct that a hearing or part of a hearing take place in private, and
give directions as to the persons who may be present; and

   (b)  give directions prohibiting or restricting the publication of evidence
given at a hearing, whether in public or in private, or of matters
contained in documents received in evidence or otherwise obtained
by the Committee.

"(3) In considering whether to make an order under sub-section (2), the
Committee shall take as the basis of its consideration the principle that it
is desirable that a hearing should be conducted in public and that evidence
given at a hearing and the contents of documents received in evidence or
otherwise obtained by a Committee should be made available to the public, but
shall pay due regard to any reasons given to the Committee why such an order
should be made. Summons to give evidence, &c.

"124L. A Committee that is conducting, or that proposes to conduct, a hearing
may, by writing signed by the Chairperson, summon a person to appear at the
hearing and to produce such documents (if any) as are referred to in the
summons, and a person so summoned shall not, without reasonable excuse -

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

   (b)  fail to appear and report from day to day unless excused, or released
from further attendance, by the Chairperson.
Penalty: $1,000. Refusal to be sworn, &c.

"124M. (1) A person appearing as a witness at a hearing conducted by a
Committee (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 the person is required by a
member of the Committee to answer; or

   (c)  refuse or fail to produce a document that the person is required to
produce by a summons under section 124L.
Penalty: $1,000.

"(2) It is a reasonable excuse for the purposes of sub-section (1) for a
person to refuse or fail to answer a question or to refuse or fail to produce
a document that the answer to the question or the production of the document
might tend to incriminate the person. Protection of members of Committees, &c.

"124N. (1) A member of a Committee has, in the performance of the duties of a
member of the Committee at a hearing conducted by the Committee, the same
protection and immunity as a Justice of the High Court.

"(2) A person appearing on behalf of a practitioner at a hearing conducted by
a Committee, a person entitled to appear before the Committee and a person
authorised by the Committee to appear before it have the same protection and
immunity as a barrister has in appearing for a party in proceedings in the
High Court. Contempt

"124P. (1) A person shall not -

   (a)  obstruct or hinder a Committee or a member of a Committee in
the performance of the functions of a Committee;

   (b)  disrupt a hearing before a Committee; or

   (c)  contravene an order made under sub-section 124K (2).
Penalty: $2,000 or imprisonment for 1 year.

"(2) An offence against sub-section (1) is punishable on summary conviction.
Chairperson to inform Minister and practitioner of determination by Committee

"124Q. (1) Where a Committee has made a determination in relation to a
practitioner, the Chairperson shall, as soon as practicable -

   (a)  give to the Minister a notice in writing informing the Minister of
the terms of the determination and setting out the reasons for the
determination; and

   (b)  give to the practitioner a copy of the notice.

"(2) A copy of a notice given to a practitioner under sub-section (1) shall be
accompanied by a statement in writing to the effect that a person whose
interests are affected by the determination may, subject to the
Administrative  Appeals Tribunal Act 1975 , make application to the
Administrative Appeals Tribunal for review of the determination.

"(3) Any failure to comply with the requirements of this section in relation
to a determination does not affect the validity of the determination. Review
by Administrative Appeals Tribunal

"124R. Where a Committee has made a determination in relation to a
practitioner, an application may be made to the Administrative Appeals
Tribunal for review of the determination. Giving effect to determination

"124S. (1) Subject to any order by the Administrative Appeals Tribunal or by a
court, a determination takes effect upon -

   (a)  the twenty-eighth day after the day on which a copy of a notice of
the determination is served under section 124Q on the practitioner
concerned; or

   (b)  if a later day is specified in the determination - the day so
        specified.

"(2) Where a Committee has made a determination to the effect that it should
counsel or reprimand a practitioner, it shall, as soon as practicable after
the determination takes effect, counsel or reprimand the practitioner, as the
case requires. Chairperson to abolish Committee

"124T. (1) Where -

   (a)  a Committee has been established in relation to the conviction of a
practitioner; and

   (b)  an appeal, or an application for extension of the time for instituting
an appeal, against the conviction is pending, the Chairperson shall abolish
the Committee.

"(2) Where -

   (a)  a determination made by a Committee has taken effect; and

   (b)  in the case of a determination of a kind referred to in paragraph
124F (2) (b) or (c) - the practitioner concerned has been counselled
or reprimanded, as the case may be, the Chairperson shall abolish the
Committee.

"(3) Where, after a Committee that has made a determination has been abolished
under sub-section (2), the Administrative Appeals Tribunal or a court decides
that the Committee should reconsider the determination, the Chairperson shall
re-establish the Committee or, if it is not reasonably practicable to do so,
establish another Committee, in accordance with section 124E, and the
Committee as so re-established or established, as the case may be, shall
proceed to make a new determination in relation to the practitioner in
accordance with this Part. Fees and allowances

"124U. (1) A Chairperson and a member of a Committee other than a Chairperson
shall be paid such fees and allowances as the Remuneration Tribunal
determines.

"(2) The appointment of the holder of a prescribed office as a Chairperson or
as a member of a Committee other than a Chairperson, or service by the holder
of a prescribed office as a Chairperson or such a member, does not affect the
holder's tenure of that prescribed office or the holder's rank, title, status,
precedence, salary, annual or other allowances or other rights or privileges
as the holder of that prescribed office and, for all purposes, the holder's
service as a Chairperson or such a member shall be taken to be service as the
holder of the prescribed office.

"(3) This section has effect subject to the Remuneration Tribunals Act 1973.

"(4) In this section, 'prescribed office' means an office, appointment or
other employment which is -

   (a)  referred to in sub-section 7 (11) of the Remuneration Tribunals Act
        1973 as an office, appointment or other employment on a fulltime
        basis; or

   (b)  a judicial office referred to in sub-section 7 (12) of that Act.".