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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Osteopaths Bill 2001
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Object of Act 2
4 Definitions 2
5 Notes 3
6 Mutual Recognition laws 3
Part 2 Registration
7 Registration necessary for certain representations 4
8 Qualifications for registration 4
9 Competence 5
10 Impairment 5
11 Full registration 5
12 Provisional registration 6
13 Temporary registration 7
14 Power to refuse or impose conditions on full registration 7
15 Cancellation and suspension of registration 8
16 Restrictions on registration of deregistered persons 9
Osteopaths Bill 2001
Contents
Page
17 Appeals concerning registration 9
Part 3 Practice of osteopathy
Division 1 Conduct of practice
18 Use of titles 11
19 Code of professional conduct 11
Division 2 Returns and information
20 Annual return to be submitted 13
21 Notification of convictions, criminal findings and charges 14
22 Courts to provide information on convictions 15
23 Referral of mental health matters to Registrar 15
Part 4 Complaints and disciplinary proceedings
Division 1 Interpretation
24 Meaning of "professional misconduct" 16
25 Meaning of "unsatisfactory professional conduct" 16
Division 2 Complaints
26 Grounds for complaints 16
27 Complaint can be made even if person no longer
registered 17
28 Who can make a complaint 17
29 Complaints to be made to the Board 17
30 Form of complaint 17
31 Board to notify Commission of complaints 18
32 Board to notify person against whom complaint is made 18
33 Investigation of complaint by Board 19
34 Role of the Commission 19
35 How complaints are dealt with 19
36 Serious complaints must be referred to Tribunal 20
37 Medical examination of osteopath 21
38 Notification of orders to employer and others 21
Contents page 2
Osteopaths Bill 2001
Contents
Page
Division 3 Referral of complaints to Osteopathy Care
Assessment Committee
39 Kinds of complaints that can be referred to Committee 22
40 How complaints are dealt with 23
41 Skills testing of osteopath 23
42 Recommendations of the Committee 24
43 No legal representation for parties appearing before the
Committee 25
Division 4 Dealing with complaint by inquiry at a
meeting of the Board
44 Procedures for dealing with complaint at meeting 25
45 General procedure 25
46 Conduct of meeting 25
47 Making submissions to inquiry 26
48 Decision of the Board 26
49 Admissibility of Board's findings 27
Division 5 Disciplinary powers of Board and Tribunal
50 Powers may be exercised if complaint proved or admitted 28
51 General powers of the Board 28
52 Power of the Board to recommend suspension or
cancellation of registration 29
53 Powers of the Tribunal 29
Division 6 Powers of the Board for the protection of the
public
54 Suspension or conditions to protect the public 30
55 Power to remove or alter conditions 30
56 Referral of matter to Commission 30
57 Special provisions--impairment 31
58 Tribunal to be notified of suspensions 32
59 Extension of suspension 32
60 Expiration of suspension 32
61 Duration of conditions--complaint matters 32
62 Duration of conditions--impairment matters 33
Contents page 3
Osteopaths Bill 2001
Contents
Page
Part 5 Impairment
63 Referral of impairment matters concerning osteopaths 34
64 Persons may notify Board of impairment matters
concerning osteopaths 34
65 Commission may refer impairment matters to Board 34
66 Panel to inquire into matters referred to it 34
67 Panel not to take action while Commission investigating 35
68 Board to give notice of proposed inquiry 35
69 Osteopath entitled to make representations 35
70 Assessment, report and recommendations by Panel 35
71 Voluntary suspension or conditions on registration 36
72 Review of conditions 36
73 Some matters to be dealt with as complaints 36
74 Confidentiality of Panel's report 37
Part 6 Appeals and review of disciplinary action
Division 1 Appeals against actions of the Board
75 Appeals against actions of the Board on a complaint 38
76 Appeal against suspension or imposition of conditions by
Board--impairment matters 39
77 Appeal on point of law 40
Division 2 Appeals against actions of Tribunal
78 Preliminary appeal on point of law 40
79 Appeal against Tribunal's decisions and actions 40
80 Powers of Court on appeal 41
Division 3 Review of suspension, cancellation or
conditions
81 Right of review 41
82 Appropriate review body 42
83 Powers on review 42
84 Nature of review 43
Contents page 4
Osteopaths Bill 2001
Contents
Page
Part 7 Osteopaths Registration Board
85 Constitution of the Board 44
86 Functions of the Board 44
87 Membership of the Board 44
88 Staff 45
89 Committees 45
90 Delegation of functions 45
91 Other provisions relating to the Board 46
Part 8 Osteopathy Care Assessment Committee
92 Constitution of the Osteopathy Care Assessment
Committee 47
93 Functions of the Committee 47
94 Membership of the Committee 47
95 Other provisions relating to the Committee 47
Part 9 Impaired Registrants Panels
96 Impaired Registrants Panels 48
97 Board to constitute Panel when required 48
98 Decisions of a Panel 48
Part 10 Osteopaths Tribunal
Division 1 Constitution of the Tribunal
99 The Osteopaths Tribunal 49
100 Chairperson and Deputy Chairpersons of the Tribunal 49
101 Tribunal to be constituted to deal with complaints etc 50
102 Effect of vacancy on Tribunal 51
103 Payment of non-legal Tribunal members 51
104 Seal of the Tribunal 51
Division 2 Proceedings of the Tribunal
105 Decisions of the Tribunal 51
106 Time when orders take effect 52
107 Powers of Tribunal exercised by Supreme Court 52
108 Registrar to be informed of disciplinary action 52
Contents page 5
Osteopaths Bill 2001
Contents
Page
Division 3 Inquiries, appeals etc before the Tribunal
109 Jurisdiction 52
110 Notice of time and place of inquiry or appeal 52
111 Conduct of proceedings 53
112 Representation before the Tribunal 53
113 Chairperson or Deputy Chairperson not to review own
decisions 53
114 Adjournments and interlocutory orders 53
115 Tribunal to provide details of its decision 54
116 Statement need not contain confidential information 54
Part 11 Miscellaneous
117 Application of Criminal Records Act 56
118 How notice is to be given 56
119 Service of documents on Board 56
120 Written statement of decisions 56
121 Notice of disciplinary action to other Boards 58
122 False or misleading entries and statements 58
123 Evidentiary certificates and evidence of entry in Register 59
124 Authentication of certain documents 59
125 Fees 60
126 Osteopathy Education and Research Account 60
127 Appointment and powers of inspectors 61
128 Search warrants 63
129 Liability of officers and members 63
130 Offences by corporations 64
131 Proceedings for offences 64
132 Regulations 64
133 Amendment of other Acts 65
134 Savings and transitional provisions 65
Schedules
1 Registration procedures 66
2 Provisions relating to the members of the Board 76
3 Provisions relating to the procedure of the Board 81
4 Provisions relating to the Committee 83
5 Proceedings before the Tribunal 86
6 Amendment of other Acts 92
7 Savings and transitional provisions 94
Contents page 6
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Osteopaths Bill 2001
Act No , 2001
An Act to provide for the registration of osteopaths; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Osteopaths Bill 2001
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Osteopaths Act 2001.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Object of Act
The object of this Act is to protect the health and safety of members of
the public by providing mechanisms to ensure that osteopaths are fit
to practise.
4 Definitions
In this Act:
Board means the Osteopaths Registration Board constituted under this
Act.
Chairperson means the Chairperson of the Tribunal.
Commission means the Health Care Complaints Commission
constituted under the Health Care Complaints Act 1993.
Committee means the Osteopathy Care Assessment Committee
constituted under this Act.
competence to practise osteopathy has the meaning given by section 9.
complaint means a complaint against an osteopath under Part 4
(Complaints and disciplinary proceedings).
conduct means any act or omission.
criminal finding means a finding by a court that a person is guilty of
an offence without proceeding to conviction.
Note. Section 117 makes special provision with respect to the application for the
purposes of this Act of the Criminal Records Act 1991 in respect of criminal
findings.
Deputy Chairperson means a Deputy Chairperson of the Tribunal.
Page 2
Osteopaths Bill 2001 Clause 4
Preliminary Part 1
Director-General means the Director-General of the Department of
Health.
exercise a function includes perform a duty.
function includes a power, authority or duty.
health registration Act has the same meaning as in the Health Care
Complaints Act 1993.
Impaired Registrants Panel means an Impaired Registrants Panel
constituted under this Act.
impairment has the meaning given by section 10.
Mutual Recognition laws means the Mutual Recognition Act 1992 of
the Commonwealth and the Trans-Tasman Mutual Recognition Act
1997 of the Commonwealth.
professional misconduct is defined in Part 4 (Complaints and
disciplinary proceedings).
Register means the Register of Osteopaths kept by the Board under
this Act.
registered means registered under this Act.
Registrar means the Registrar of the Board.
registration authority has the same meaning as in the Health Care
Complaints Act 1993.
sex/violence criminal finding means a criminal finding for a
sex/violence offence.
sex/violence offence means an offence involving sexual activity, acts
of indecency, child pornography, physical violence or the threat of
physical violence.
Tribunal means the Osteopaths Tribunal constituted under this Act.
unsatisfactory professional conduct is defined in Part 4 (Complaints
and disciplinary proceedings).
5 Notes
Notes included in this Act are explanatory notes and do not form part
of this Act.
6 Mutual Recognition laws
This Act does not limit or otherwise affect the operation of the Mutual
Recognition laws.
Page 3
Clause 7 Osteopaths Bill 2001
Part 2 Registration
Part 2 Registration
7 Registration necessary for certain representations
(1) A person who is not a registered osteopath must not indicate that the
person practises osteopathy or is qualified to practise osteopathy.
Maximum penalty: 50 penalty units.
(2) Without limiting the ways in which a person may be taken to have
indicated that the person is qualified to practise osteopathy or that the
person practises osteopathy, a person is taken to have so indicated if
the person uses:
(a) any name, initials, word, title, symbol or description that
(having regard to the circumstances in which it is used)
indicates, or is capable of being understood to indicate, or is
calculated to lead a person to infer, that the person is qualified
to practise osteopathy or that the person practises osteopathy, or
(b) any name, title or description prescribed by the regulations.
Note. Section 10AC of the Public Health Act 1991 prohibits spinal manipulation by
persons who are not registered chiropractors, medical practitioners, osteopaths or
physiotherapists.
8 Qualifications for registration
(1) A person has the necessary qualifications for registration as an
osteopath if the person:
(a) has such qualifications as may be prescribed by the regulations,
or
(b) has successfully completed a course of study that is recognised
by the Board as meeting criteria prescribed by the regulations
for the purposes of this paragraph, or
(c) has such qualifications as may be approved by the Board on the
recommendation of an accreditation body recognised by the
Board for the purposes of this section, or
(d) has passed an examination arranged or approved by the Board
to assess the person's competence to practise osteopathy.
Page 4
Osteopaths Bill 2001 Clause 8
Registration Part 2
(2) An educational or training institution may apply to the Board for the
recognition by the Board (under subsection (1) (b)) of a course of
study offered by the institution. The institution may make application
to the Administrative Decisions Tribunal for a review of the decision
of the Board on the application.
(3) In determining for the purposes of subsection (1) (b) whether a
particular course of study meets the criteria prescribed by the
regulations, the Board may have regard to and rely on any findings
made on an assessment prepared for the Board in respect of the course
of study.
(4) In this section:
qualification means a degree, diploma, certificate or other academic
award conferred or awarded for the successful completion of a course
of training in osteopathy.
9 Competence
For the purposes of this Act, a person is competent to practise
osteopathy only if the person has sufficient physical capacity, mental
capacity and skill to practise osteopathy and has sufficient
communication skills for the practice of osteopathy, including an
adequate command of the English language.
10 Impairment
(1) For the purposes of this Act, a person suffers from an impairment if
the person suffers from any physical or mental impairment, disability,
condition or disorder that detrimentally affects or is likely to
detrimentally affect the person's physical or mental capacity to practise
osteopathy.
(2) For the purposes of this Act, a person who habitually abuses alcohol
or is addicted to a deleterious drug is taken to suffer from an
impairment.
11 Full registration
(1) A person is entitled to registration as an osteopath if the Board is
satisfied that the person has the necessary qualifications for registration
as an osteopath and is of good character.
(2) Registration under this section is full registration.
Page 5
Clause 11 Osteopaths Bill 2001
Part 2 Registration
(3) An entitlement to full registration does not prevent conditions being
imposed on that registration in accordance with this Act.
(4) Schedule 1 (Registration procedures) has effect with respect to full
registration.
Note. Under section 20 of the Mutual Recognition Act 1992 of the Commonwealth
a person is entitled to be registered as an osteopath if the person is registered in
another State or a Territory for an equivalent occupation (if that State or Territory
participates in the mutual recognition scheme). The entitlement arises once the
person lodges a notice under section 19 of that Act and, until registered under this
Act, the person is then deemed (by section 25 of that Act) to be registered. See
also the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.
12 Provisional registration
(1) Registration as an osteopath may be granted:
(a) to a person entitled to full registration, pending the Board's
determination of the person's application for full registration, or
(b) to a person who will be entitled to full registration when a
degree, diploma, certificate or other academic award to which
the person is entitled is granted or conferred, pending its grant
or conferral.
(2) Registration under this section is provisional registration.
(3) Provisional registration is granted by the Board or the President. In the
President's absence it can be granted by any member of the Board
authorised by the Board to do so. Provisional registration is granted by
the grant of a certificate of provisional registration.
(4) A person granted provisional registration is a registered osteopath until
the registration expires or is cancelled. Provisional registration expires
on the date stated in the certificate or such later date as may be fixed
by the Board.
(5) The Board may impose such conditions as it thinks fit on a person's
provisional registration and may at any time remove, add to or vary
those conditions by notice in writing to the registered person.
(6) The Board may cancel a person's provisional registration for any
reason that the Board considers proper. Cancellation does not affect
any application for registration by the person.
(7) If a person granted provisional registration is granted full registration
before the person's provisional registration expires, the person's full
registration dates from the granting of provisional registration, unless
the Board decides otherwise.
Page 6
Osteopaths Bill 2001 Clause 13
Registration Part 2
13 Temporary registration
(1) Registration for a limited period may be granted to a person who is not
normally resident in New South Wales, for the purpose of enabling the
person to carry out educational or research activities or such other
activities as the Board considers to be in the public interest.
(2) Registration under this section is temporary registration.
(3) Temporary registration can only be granted to a person:
(a) who is registered as an osteopath in accordance with a law in
force in the person's normal place of residence providing for
the registration or certification of osteopaths, or
(b) who holds such qualifications or has such experience in the
practice of osteopathy as the Board considers satisfactory for
the purposes of temporary registration.
(4) Temporary registration is granted by the Board by the grant of a
certificate of temporary registration.
(5) A person granted temporary registration is a registered osteopath until
the temporary registration expires or is cancelled. Temporary
registration expires on the date stated in the certificate unless the
period of temporary registration is extended.
(6) The Board may extend and further extend a period of temporary
registration by the issue of a further certificate of temporary
registration.
(7) The Board may cancel a person's temporary registration for any reason
that the Board considers proper. Cancellation does not affect any
application for full registration by the person.
(8) The Board may impose such conditions as it thinks fit on the
temporary registration of a person and may at any time remove, add to
or vary those conditions by notice in writing to the registered person.
14 Power to refuse or impose conditions on full registration
(1) The Board may refuse to register a person who would otherwise be
entitled to full registration if:
(a) the Board is of the opinion, following an inquiry under
Schedule 1, that the person is not competent to practise
osteopathy or suffers from an impairment, or
Page 7
Clause 14 Osteopaths Bill 2001
Part 2 Registration
(b) the person has been convicted of or made the subject of a
criminal finding for an offence, either in or outside the State,
and the Board is of the opinion that the circumstances of the
offence are such as to render the person unfit in the public
interest to practise osteopathy, or
(c) the person's registration under a health registration Act has
been cancelled or suspended because of conduct that would (if
the person were a registered osteopath) authorise cancellation
or suspension of the person's registration under this Act, or
(d) the person's registration or certification under an osteopaths
registration law has been cancelled or suspended because of
conduct that would (if it occurred in New South Wales and the
person were a registered osteopath) authorise cancellation or
suspension of the person's registration under this Act.
(2) As an alternative to refusing to register a person under subsection (1),
the Board may grant the person registration subject to conditions if the
Board considers that refusal of registration is not warranted and that
the person should be granted registration subject to appropriate
conditions.
(3) Conditions of registration may relate to the duration of registration, the
aspects of the practice in which the person may be engaged, and any
other matters, as the Board thinks appropriate.
Note. The Mutual Recognition laws also provide for the imposition of conditions on
registration. Conditions can also be imposed on a person's registration as a result
of disciplinary proceedings to which the person has been subject.
(4) In this section:
osteopaths registration law means any law of a place outside the State
that provides for the registration or certification of osteopaths.
15 Cancellation and suspension of registration
(1) A person ceases to be registered as an osteopath if the person's name
is removed from the Register. A reference in this Act to the
cancellation of an osteopath's registration is a reference to the removal
of the osteopath's name from the Register.
(2) A person whose registration as an osteopath is suspended is taken not
to be a registered osteopath during the period of the suspension, except
for the purposes of Part 4 (Complaints and disciplinary proceedings).
Page 8
Osteopaths Bill 2001 Clause 16
Registration Part 2
16 Restrictions on registration of deregistered persons
(1) A person cannot apply for registration (and any such application must
be rejected) if:
(a) the person's registration is cancelled pursuant to an order of the
Chairperson or a Deputy Chairperson, the Tribunal or the
Supreme Court, or
(b) the Chairperson or a Deputy Chairperson, the Tribunal or the
Supreme Court orders that the person not be re-registered.
(2) The only way such a person can again be registered is on a review
under Division 3 of Part 6 of the order by which the person's
registration was cancelled.
17 Appeals concerning registration
(1) A person who is aggrieved by any of the following decisions of the
Board may appeal to the Tribunal against the decision:
(a) the Board's refusal to grant the person full registration,
(b) the Board's refusal to grant the person temporary registration,
(c) the Board's decision to refuse to register the person under
section 14 or to grant the person registration subject to
conditions under that section,
(d) the Board's cancellation of the person's provisional registration
or temporary registration,
(e) the Board's refusal to register the person under clause 28
(Entitlement to re-registration if fee paid) of Schedule 1.
(2) An appeal must be made within 28 days (or such longer period as the
Chairperson may allow in a particular case) after notice of the decision
is given to the person. The appeal is to be lodged with the Registrar
who is to refer it to the Tribunal.
(3) If the decision in respect of which an appeal is made was made as a
consequence of an inquiry held by the Board, the appeal is to be dealt
with by way of rehearing and fresh evidence or evidence in addition to
or in substitution for the evidence received at the inquiry may be given.
(4) An appeal does not affect any determination with respect to which it
is made until the appeal is determined.
Page 9
Clause 17 Osteopaths Bill 2001
Part 2 Registration
(5) When it determines an appeal, the Tribunal may dismiss the appeal or
order that the decision of the Board be revoked and replaced by a
different decision made by the Tribunal and specified in the order. The
Tribunal may also make such ancillary orders as it thinks proper.
(6) The Tribunal's decision is taken to be a decision of the Board (but this
does not confer a right of appeal under this section in respect of the
Tribunal's decision).
(7) No appeal lies under this Act against a decision of the Board under the
Mutual Recognition laws in relation to its functions under that Act.
Note. The Mutual Recognition laws provide that a person may, subject to the
Administrative Appeals Tribunal Act 1975 of the Commonwealth, apply to the
Administrative Appeals Tribunal for a review of a decision of a local registration
authority in relation to its functions under the Mutual Recognition laws. Those
functions include registration, the imposition or waiver of conditions on registration
and the postponement, refusal or reinstatement of registration.
Page 10
Osteopaths Bill 2001 Clause 18
Practice of osteopathy Part 3
Conduct of practice Division 1
Part 3 Practice of osteopathy
Note. Section 10AC of the Public Health Act 1991 prohibits spinal manipulation by
persons who are not registered chiropractors, medical practitioners, osteopaths or
physiotherapists.
Division 1 Conduct of practice
18 Use of titles
(1) A registered osteopath must not use the title "doctor" in the course of
the practice of osteopathy unless the osteopath is the holder of a
qualification conferred by a university that entitles the osteopath to use
that title and that qualification is a recognised qualification at the time
the osteopath uses the title.
Maximum penalty: 10 penalty units.
(2) In this section:
recognised qualification means:
(a) a qualification that is prescribed by the regulations as a
recognised qualification, or
(b) when no qualification is prescribed under paragraph (a), a
qualification that is for the time being recognised by the Board
for the purposes of this section.
Note. See also section 105 (Use of misleading titles etc) of the Medical Practice
Act 1992.
19 Code of professional conduct
(1) The Board may establish a code of professional conduct setting out the
rules of conduct that should be observed by registered osteopaths in
their professional practice. The Board may from time to time amend
or replace a code of professional conduct.
(2) The Minister may require the Board to develop guidelines relating to
any conduct of registered osteopaths that the Minister considers should
be the subject of a code of professional conduct.
Page 11
Clause 19 Osteopaths Bill 2001
Part 3 Practice of osteopathy
Division 1 Conduct of practice
(3) For that purpose, the Minister may:
(a) direct the Board to establish a code of professional conduct, or
(b) direct the Board to amend or replace a code of professional
conduct,
so that the code includes guidelines relating to that conduct.
(4) The Board is to comply with any such direction of the Minister.
(5) The provisions of a code of professional conduct are a relevant
consideration in determining for the purposes of this Act what
constitutes proper and ethical conduct by an osteopath.
(6) The procedure for the establishment of a code of professional conduct
is as follows:
(a) the Board is to prepare a proposed code in draft form and is to
prepare an impact assessment statement for the proposed code
in accordance with such requirements as the Minister may from
time to time determine,
(b) the draft code and impact assessment statement are to be
publicly exhibited for a period of at least 21 days,
(c) the Board is to seek public comment on the draft code during
the period of public exhibition and public comment may be
made during the period of public exhibition and for 21 days (or
such longer period as the Board may determine) after the end
of that period,
(d) the Board is to submit the draft code to the Minister for
approval together with a report by the Board giving details of
public comment received during the period allowed for public
comment and the Board's response to it,
(e) the Board is not to establish the draft code as a code of
professional conduct unless the Minister approves the draft.
(7) The procedure for the amendment or replacement of a code of
professional conduct is the same as for the establishment of the code
unless the Minister otherwise directs in respect of a particular
amendment.
Page 12
Osteopaths Bill 2001 Clause 20
Practice of osteopathy Part 3
Returns and information Division 2
Division 2 Returns and information
20 Annual return to be submitted
(1) A registered osteopath must, on or before the return date in each year,
furnish in writing to the Board in a form approved by the Board a
return for the return period specifying the following information:
(a) details of any conviction of the osteopath for an offence in this
State or elsewhere during the return period (together with
details of any penalty imposed for the offence),
(b) details of the making of a sex/violence criminal finding against
the osteopath for an offence, in this State or elsewhere, during
the return period (together with details of any penalty imposed
for the offence),
(c) details of the making of a criminal finding against the osteopath
for an offence committed in the course of the practice or
purported practice of osteopathy, in this State or elsewhere,
during the return period (together with details of any penalty
imposed for the offence),
(d) details of any criminal proceedings pending against the
osteopath at the end of the return period, in this State or
elsewhere, for a sex/violence offence alleged to have been
committed in the course of the practice or purported practice of
osteopathy,
(e) details of any criminal proceedings pending against the
osteopath at the end of the return period, in this State or
elsewhere, for a sex/violence offence alleged to have been
committed against a minor or to involve child pornography
(whether or not alleged to have been committed in the course
of the practice or purported practice of osteopathy),
(f) details of any significant illness (physical or mental) from
which the osteopath suffered at any time during the return
period and that may reasonably be thought likely to
detrimentally affect the osteopath's physical or mental capacity
to practise osteopathy,
(g) details of any suspension of, cancellation of, or imposition of
conditions on, the registration of the osteopath as an osteopath
in another jurisdiction (either within Australia or elsewhere)
during the return period,
Page 13
Clause 20 Osteopaths Bill 2001
Part 3 Practice of osteopathy
Division 2 Returns and information
(h) details of any suspension of, cancellation of, or imposition of
conditions on, any registration of the osteopath under a health
registration Act during the return period,
(i) a statement as to whether the osteopath is registered under a
health registration Act as at the date of the return,
(j) a statement as to whether the osteopath has been refused
registration as an osteopath in another jurisdiction (either within
Australia or elsewhere) during the return period,
(k) details of any continuing professional education undertaken by
the osteopath during the return period,
(l) such other information as may be prescribed by the regulations.
(2) The Board may require a return under this section to be verified by
statutory declaration.
(3) The regulations may provide that subsection (1) (a) does not apply in
respect of particular offences.
(4) In this section:
return date means a date notified to osteopaths by the Board in
writing at least 1 month in advance.
return period means the period of 12 months ending 2 months before
the return date.
21 Notification of convictions, criminal findings and charges
(1) A registered osteopath must notify the Board in writing within 7 days
after:
(a) the osteopath is convicted of an offence or made the subject of
a sex/violence criminal finding for an offence, in this State or
elsewhere, giving details of the conviction or criminal finding
and any penalty imposed for the offence, or
(b) criminal proceedings are commenced against the osteopath, in
this State or elsewhere, in respect of a sex/violence offence
alleged to have been committed in the course of the practice or
purported practice of osteopathy, or
Page 14
Osteopaths Bill 2001 Clause 21
Practice of osteopathy Part 3
Returns and information Division 2
(c) criminal proceedings are commenced against the osteopath, in
this State or elsewhere, in respect of a sex/violence offence
alleged to have been committed against a minor or to involve
child pornography (whether or not alleged to have been
committed in the course of the practice or purported practice of
osteopathy).
(2) The regulations may provide that subsection (1) (a) does not apply in
respect of particular offences.
22 Courts to provide information on convictions
(1) As soon as practicable after a registered osteopath is convicted of an
offence or a sex/violence criminal finding is made against a registered
osteopath, the Clerk or other proper officer of the court must (if the
court is aware that the person is a registered osteopath) notify the
Board of the conviction or criminal finding together with details of any
penalty imposed for the offence.
(2) The regulations may provide that this section does not apply in respect
of particular offences.
23 Referral of mental health matters to Registrar
If a registered osteopath becomes a mentally incapacitated person, the
person prescribed by the regulations must cause notice of that fact to
be given to the Registrar in accordance with the regulations.
Page 15
Clause 24 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 1 Interpretation
Part 4 Complaints and disciplinary proceedings
Division 1 Interpretation
24 Meaning of "professional misconduct"
For the purposes of this Act, professional misconduct, in relation to
a registered osteopath, means unsatisfactory professional conduct of a
sufficiently serious nature to justify suspension or cancellation of the
osteopath's registration.
25 Meaning of "unsatisfactory professional conduct"
For the purposes of this Act, unsatisfactory professional conduct, in
relation to a registered osteopath, includes any of the following:
(a) any conduct by the osteopath that demonstrates a lack of
adequate knowledge, skill, judgment or care in the practice of
osteopathy,
(b) a contravention by the osteopath of a provision of this Act or
the regulations or of a condition of the osteopath's registration,
(c) a failure without reasonable excuse by the osteopath to comply
with a direction by the Board to provide information with
respect to a complaint under this Part against the osteopath,
(d) a failure by the osteopath to comply with an order made or a
direction given by the Board or the Tribunal under this Act,
(e) any other improper or unethical conduct by an osteopath in the
course of the practice or purported practice of osteopathy.
Division 2 Complaints
26 Grounds for complaints
(1) A complaint may be made under this Act concerning:
(a) the professional conduct of a registered osteopath, or
(b) the provision of an osteopathy service by a registered osteopath.
Note. Subsection (1) ensures consistency between this Act and the Health Care
Complaints Act 1993 with respect to the kinds of complaints that can be made
about registered osteopaths.
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Osteopaths Bill 2001 Clause 26
Complaints and disciplinary proceedings Part 4
Complaints Division 2
(2) Without limiting the generality of subsection (1), a complaint may be
made that a registered osteopath:
(a) has, either in or outside New South Wales, been convicted of
or made the subject of a criminal finding for an offence, and the
circumstances of the offence are such as to render the osteopath
unfit in the public interest to be registered as an osteopath, or
(b) is guilty of unsatisfactory professional conduct or professional
misconduct, or
(c) is not competent to practise osteopathy, or
(d) suffers from an impairment, or
(e) is not of good character.
(3) A complaint need not be made in terms that are strictly in accordance
with the terminology of this section.
(4) In determining for the purposes of this Act whether an osteopath is of
good character regard may be had to conduct of the osteopath before
becoming registered as an osteopath.
27 Complaint can be made even if person no longer registered
A complaint about a registered osteopath may be made and dealt with
even though the osteopath has ceased to be registered. For that
purpose, a reference in this Part to an osteopath or registered osteopath
includes a reference to a person who has ceased to be registered or
whose registration is suspended.
28 Who can make a complaint
Any person (including the Board) can make a complaint.
29 Complaints to be made to the Board
Complaints are to be made to the Board and are to be lodged with the
Registrar.
Note. Complaints may also be made to the Commission.
30 Form of complaint
(1) A complaint must be in writing, must identify the complainant and
must contain particulars of the allegations on which it is founded.
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Clause 30 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 2 Complaints
(2) A complaint must be verified by statutory declaration unless the
complaint is made by:
(a) a judicial officer within the meaning of the Judicial Officers Act
1986, or
(b) a coroner, or
(c) the Minister, or
(d) the Director-General, or
(e) the chief executive officer (however described) of a public
health organisation (within the meaning of the Health Services
Act 1997), or
(f) the Commission, or
(g) a person or body prescribed by the regulations.
(3) The Board may consider and investigate a complaint even if it does not
comply with the requirements of this section (except the requirement
that it identify the complainant) but must not proceed to deal with the
complaint under this Part until they are complied with.
(4) The Board may require the complainant to provide further particulars
of a complaint.
31 Board to notify Commission of complaints
The Board must notify the Commission of any complaint made under
this Part and this is to be done as soon as practicable after the
complaint is made.
32 Board to notify person against whom complaint is made
(1) Written notice of the making of a complaint, the nature of the
complaint and the identity of the complainant is to be given by the
Board to the osteopath against whom the complaint is made, as soon
as practicable after the complaint is made.
(2) Notice is not required to be given if the Commission is handling the
complaint.
(3) Notice is not required to be given if the giving of the notice will or is
likely to:
(a) prejudice the investigation of the complaint, or
Page 18
Osteopaths Bill 2001 Clause 32
Complaints and disciplinary proceedings Part 4
Complaints Division 2
(b) place the health or safety of a person at risk, or
(c) place the complainant or another person at risk of intimidation
or harassment.
33 Investigation of complaint by Board
The Board may make such inquiries concerning a complaint as it
thinks fit.
34 Role of the Commission
(1) Before the Board deals with or refers a complaint under this Part, the
Board and the Commission must consult in order to see if agreement
can be reached between them as to the course of action to be taken
concerning a complaint.
(2) Division 2 of Part 2 of the Health Care Complaints Act 1993 applies
to the consultation and the outcomes of the consultation.
35 How complaints are dealt with
(1) When a complaint is made, the Board may at any time decide:
(a) to refer the complaint for investigation by the Commission, or
(b) to refer the complaint for conciliation in accordance with
section 13 (2) of the Health Care Complaints Act 1993, or
(c) to refer the complaint to the Osteopathy Care Assessment
Committee under Division 3, or
(d) to refer the matter to an Impaired Registrants Panel under
Part 5, or
(e) to deal with the complaint by inquiry at a meeting of the Board
under Division 4, or
(f) to refer the complaint to the Tribunal, or
(g) to deal with the complaint by directing the osteopath to attend
counselling, or
(h) to deal with the complaint by providing advice or making
recommendations to the osteopath, or
(i) to decline to deal with or dismiss the complaint.
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Clause 35 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 2 Complaints
(2) If the Commission recommends to the Board in accordance with the
Health Care Complaints Act 1993 that a complaint (whether made
under that Act or this Act) be dealt with by inquiry at a meeting of the
Board under Division 4, the Board must comply with that
recommendation (but only if the complaint is of a kind that can be
made under this Act).
(3) The Board may decline to deal with a complaint if the osteopath
concerned has ceased to be registered.
(4) The Board may decline to deal with a complaint if the complainant
fails to provide further particulars required by the Board.
(5) A complaint may be withdrawn by the complainant at any time. The
Board and the Commission are to consult as to whether the complaint
should be proceeded with in the public interest.
(6) The Board is to notify the osteopath of any action taken by the Board
under this section.
36 Serious complaints must be referred to Tribunal
(1) Both the Board and the Commission are under a duty to refer a
complaint to the Tribunal if at any time either forms the opinion that
it may, if substantiated, provide grounds for the suspension or
cancellation of the osteopath's registration.
(2) However, either the Board or the Commission may decide not to refer
the complaint to the Tribunal if of the opinion that the allegations on
which the complaint is founded (and on which any other pending
complaint against the osteopath is founded) relate solely or principally
to the physical or mental capacity of the osteopath to practise
osteopathy.
(3) If the Board decides not to refer the complaint to the Tribunal, the
Board must instead deal with the complaint at a meeting of the Board
under Division 4. If the Commission decides not to refer the complaint
to the Tribunal, the Commission must instead refer the complaint to
the Board.
(4) This section does not require the Board or the Commission to refer a
complaint that the Board or Commission thinks is frivolous or
vexatious.
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Osteopaths Bill 2001 Clause 37
Complaints and disciplinary proceedings Part 4
Complaints Division 2
37 Medical examination of osteopath
(1) The Board may, before or while taking any action under this Part or
Part 5 (Impairment), by notice to the osteopath concerned, require the
osteopath to undergo an examination at the Board's expense by a
medical practitioner, or other appropriate health professional, specified
in the notice, at any reasonable time and place specified in the notice.
(2) A failure by an osteopath, without reasonable cause, to comply with a
notice given under this section to undergo an examination is, for the
purposes of this Part or any inquiry or appeal under this Part, evidence
that the osteopath does not have sufficient physical and mental
capacity to practise osteopathy.
(3) A medical practitioner or other health professional who conducts an
examination under this section is to report to the Board on the results
of the examination. The Board is to provide a copy of the report to the
osteopath.
(4) A person must not directly or indirectly make a record of or divulge to
any person any information contained in a report to the Board under
this section that has come to the person's notice in the exercise of the
person's functions under this Act, except for the purpose of exercising
functions under this Act.
Maximum penalty: 50 penalty units.
(5) A person cannot be required in civil proceedings in any court to
produce or permit access to any report made to the Board under this
section or to divulge the contents of any such report.
(6) In this section:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions but
does not include the Tribunal.
report includes a copy, reproduction and duplicate of the report or any
part of the report, copy, reproduction or duplicate.
38 Notification of orders to employer and others
(1) The Board is required to give notice of any order made in respect of a
registered osteopath under this Act, or the placing of conditions on the
registration of a registered osteopath, to the following persons:
(a) the employer (if any) of the osteopath concerned,
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Clause 38 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 2 Complaints
(b) the chief executive officer (however described) of any public
health organisation (within the meaning of the Health Services
Act 1997) in respect of which the osteopath concerned is a
visiting practitioner or is otherwise accredited,
(c) the chief executive officer (however described) of any private
hospital or day procedure centre (within the meaning of the
Private Hospitals and Day Procedure Centres Act 1988) in
respect of which the osteopath concerned is accredited,
(d) the chief executive officer (however described) of any nursing
home (within the meaning of the Nursing Homes Act 1988) in
respect of which the osteopath concerned is accredited.
(2) The notice is to be given within 7 days after:
(a) in the case of an order made or conditions imposed by the
Board--the date the order is made or the conditions are
imposed, or
(b) in any other case--the date the Board is given a copy of the
decision of the body that made the order or imposed the
conditions.
(3) The notice is to include such information as the Board considers
appropriate.
Division 3 Referral of complaints to Osteopathy Care
Assessment Committee
39 Kinds of complaints that can be referred to Committee
(1) The Board may refer a complaint to the Committee only if the
Commission has decided not to investigate the complaint.
(2) A complaint may not be referred to the Committee if it is a complaint
that the osteopath is not of good character or has been convicted of or
made the subject of a criminal finding for an offence.
(3) This section does not operate to limit the Committee in the exercise of
its functions under this Division in respect of any matter that arises in
the course of the Committee's investigation of a complaint.
Page 22
Osteopaths Bill 2001 Clause 40
Complaints and disciplinary proceedings Part 4
Referral of complaints to Osteopathy Care Assessment Committee Division 3
40 How complaints are dealt with
(1) When a complaint is referred to the Committee, the Committee is to
investigate the complaint and may in any particular case encourage the
complainant and the osteopath against whom the complaint is made to
settle the complaint by consent.
(2) The Committee may obtain such osteopathy, medical, legal, financial
or other advice as it thinks necessary or desirable to enable it to
exercise its functions.
(3) The Committee may not determine a complaint referred to it except by
settlement by consent.
(4) The Committee is to make a report to the Board on a complaint
referred to it whether or not it is able to effect settlement of the
complaint by consent.
41 Skills testing of osteopath
(1) The Committee may, by notice to the osteopath who is the subject of
a complaint referred to the Committee, require the osteopath to
undergo skills testing at the Board's expense by an appropriately
qualified person specified in the notice, at any reasonable time and
place specified in the notice.
(2) A failure by an osteopath, without reasonable cause, to comply with a
notice given under this section to undergo skills testing is, for the
purposes of this Part or any inquiry or appeal under this Part, evidence
that the osteopath does not have sufficient skill to practise osteopathy.
(3) The person who conducts skills testing under this section is to report
to the Committee on the results of the examination. The Committee is
to provide a copy of the report to the osteopath.
(4) A person must not directly or indirectly make a record of or divulge to
any person any information contained in a report to the Committee
under this section that has come to the person's notice in the exercise
of the person's functions under this Act, except for the purpose of
exercising functions under this Act.
Maximum penalty: 50 penalty units.
(5) A person cannot be required in civil proceedings in any court to
produce or permit access to any report made to the Committee under
this section or to divulge the contents of any such report.
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Clause 41 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 3 Referral of complaints to Osteopathy Care Assessment Committee
(6) In this section:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions but
does not include the Tribunal.
report includes a copy, reproduction and duplicate of the report or any
part of the report, copy, reproduction or duplicate.
42 Recommendations of the Committee
(1) The Committee's report to the Board may include such
recommendations with respect to the complaint as the Committee
considers appropriate, including (without being limited to) any of the
following recommendations:
(a) a recommendation that the Board deal with the complaint by
inquiry at a meeting of the Board as a complaint of
unsatisfactory professional conduct,
(b) a recommendation that the Board direct the osteopath to attend
counselling,
(c) a recommendation that the Board dismiss the complaint.
(2) The Board is to provide the osteopath and the Commission with a copy
of the Committee's report and recommendations as soon as practicable
after the report is made.
(3) The Board must comply with a recommendation of the Committee that
the Board deal with the complaint by inquiry at a meeting of the Board
as a complaint of unsatisfactory professional conduct.
(4) Otherwise the Board is to allow the Commission and the osteopath at
least 21 days after they have been provided with a copy of the
Committee's report and recommendations to make submissions in
respect of the report and recommendations.
(5) After considering the Committee's report and recommendations and
any submissions made by the osteopath or the Commission in respect
of the report or recommendations, the Board is to proceed to deal with
the complaint as provided by section 35.
(6) This section is subject to section 36 (Serious complaints must be
referred to Tribunal).
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Osteopaths Bill 2001 Clause 43
Complaints and disciplinary proceedings Part 4
Referral of complaints to Osteopathy Care Assessment Committee Division 3
43 No legal representation for parties appearing before the Committee
A complainant and the osteopath against whom the complaint is made
are not entitled to be legally represented at any appearance before the
Committee.
Division 4 Dealing with complaint by inquiry at a meeting of
the Board
44 Procedures for dealing with complaint at meeting
(1) If the Board decides to deal with a complaint by inquiry at a meeting
of the Board, the meeting is to be held in accordance with Schedule 3
and this Division.
(2) The Board may be assisted by a legal practitioner when dealing with
a complaint at a meeting of the Board.
(3) The Board is to provide the Commission with a copy of any
submission made to the Board by the osteopath in respect of the
complaint or in respect of any recommendation of the Committee
concerning the complaint.
45 General procedure
The procedure for the calling of a meeting to deal with a complaint and
for the conduct of the meeting is, subject to this Act and the
regulations, to be as determined by the Board.
46 Conduct of meeting
At a meeting to deal with a complaint, the Board:
(a) may inform itself on any matter in such manner as it thinks fit,
and
(b) may receive written or oral submissions, and
(c) is to proceed with as little formality and technicality, and as
much expedition, as the requirements of this Act and the proper
consideration of the complaint permit, and
(d) is not bound by rules of evidence, and
(e) may proceed to deal with the complaint in the absence of the
osteopath.
Page 25
Clause 47 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 4 Dealing with complaint by inquiry at a meeting of the Board
47 Making submissions to inquiry
(1) The osteopath is entitled to attend the meeting during the course of the
Board's inquiry and to make submissions to the Board.
(2) The Committee may, if the Board so requires, make a submission to
the Board with respect to the complaint and may for that purpose
attend the meeting during the course of the Board's inquiry.
(3) The Board is to afford the Commission the opportunity to make a
submission to the Board with respect to the complaint and the
Commission may for that purpose attend the meeting during the course
of the Board's inquiry.
(4) The Committee or the Commission may not be present at the meeting
except while actually making a submission in accordance with this
section, unless the Board otherwise determines.
(5) Despite subsection (4), the Commission is to be present throughout the
Board's inquiry where the complaint is the subject of a
recommendation of the Commission under section 35 (2) that it be
dealt with by inquiry at a meeting of the Board under this Division.
(6) The osteopath is not entitled to be legally represented at the inquiry but
may be accompanied by a support person. The support person can be
a legal practitioner.
(7) The Commission is not entitled to be legally represented at the inquiry.
48 Decision of the Board
(1) The Board must, within 30 days of making its decision on a complaint,
make available to the complainant, the osteopath concerned and such
other persons as it thinks fit, a written statement of the decision.
(2) If the Commission made a submission to the Board with respect to the
complaint, the Board is to provide the Commission with a copy of the
written statement of the decision.
(3) The written statement of a decision must give the reasons for the
decision.
(4) The Board is not required to include confidential information in any
such statement. If a statement would be false or misleading if it did not
include the confidential information, the Board is not required to
provide the statement.
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Osteopaths Bill 2001 Clause 48
Complaints and disciplinary proceedings Part 4
Dealing with complaint by inquiry at a meeting of the Board Division 4
(5) When confidential information is not included in the statement of a
decision provided to a person or the statement is not provided to a
person because of subsection (4), the Board must give a confidential
information notice to the person.
(6) A confidential information notice is a notice that indicates that
confidential information is not included or that the statement will not
be provided (as appropriate) and gives the reasons for this. The notice
must be in writing and must be given within one month after the
decision is made.
(7) This section does not affect the power of a court to make an order for
the discovery of documents or to require the giving of evidence or the
production of documents to a court.
(8) In this section:
confidential information means information that:
(a) has not previously been published or made available to the
public when a written statement of a decision to which it is or
may be relevant is being prepared, and
(b) relates to the personal or business affairs of a person, other than
a person to whom the Board is required (or would, but for
subsection (4), be required) to provide a written statement of a
decision, and
(c) is information:
(i) that was supplied in confidence, or
(ii) the publication of which would reveal a trade secret, or
(iii) that was provided in compliance with a duty imposed
by an enactment, or
(iv) the provision of which by the Board would be in breach
of any enactment.
49 Admissibility of Board's findings
A finding of the Board under this Division is admissible as evidence
in any legal proceedings.
Page 27
Clause 50 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 5 Disciplinary powers of Board and Tribunal
Division 5 Disciplinary powers of Board and Tribunal
50 Powers may be exercised if complaint proved or admitted
The Board or the Tribunal may exercise any power or combination of
powers conferred on it by this Division if the Board (pursuant to an
inquiry at a meeting of the Board under Division 4) or the Tribunal
finds the subject-matter of a complaint of a kind referred to in section
26 (2) to have been proved or the person admits to it in writing to the
Board or the Tribunal.
51 General powers of the Board
(1) The Board may do any one or more of the following:
(a) caution or reprimand the person,
(b) make an order for the withholding or refunding of part or all of
the payment for the osteopathy services that are the subject of
the complaint,
(c) order that the person seek and undergo medical or psychiatric
treatment or counselling,
(d) direct that such conditions relating to the person's practice of
osteopathy as it considers appropriate be imposed on the
person's registration,
(e) order that the person complete a specified educational course or
courses,
(f) order that the person report on his or her osteopathy practice at
specified times, in a specified manner and to specified persons,
(g) order that the person seek and take advice, in relation to the
management of his or her osteopathy practice, from a specified
person or persons.
(2) If the person is not registered, an order or direction can still be given
under this section but has effect only so as to prevent the person being
registered unless the order is complied with or to require the conditions
concerned to be imposed when the person is registered, as appropriate.
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Osteopaths Bill 2001 Clause 52
Complaints and disciplinary proceedings Part 4
Disciplinary powers of Board and Tribunal Division 5
52 Power of the Board to recommend suspension or cancellation of
registration
(1) The Board may recommend that the registration of an osteopath be
suspended for a specified period or cancelled if the Board is satisfied
(when it finds on a complaint about the osteopath) that the osteopath
does not have sufficient physical and mental capacity to practise
osteopathy.
(2) If the osteopath is not registered, a recommendation can be made under
this section that the osteopath not be re-registered.
(3) The Board makes its recommendation by referring the matter with its
recommendation to the Chairperson or to a Deputy Chairperson
nominated by the Chairperson.
(4) The Chairperson or Deputy Chairperson may then make an order in the
terms recommended or may make such other order as to the
suspension or registration of the osteopath as the Chairperson or
Deputy Chairperson thinks proper based on the findings of the Board.
(5) An order may also provide that an application for review of the order
under Division 3 of Part 6 may not be made until after a specified time.
(6) Instead of making an order under this section, the Chairperson or
Deputy Chairperson may exercise any power or combination of powers
of the Board under this Division.
53 Powers of the Tribunal
(1) The Tribunal may exercise any power that the Board can exercise
under this Division.
(2) The Tribunal may by order suspend a person's registration for a
specified period or direct that a person's registration be cancelled if the
Tribunal is satisfied (when it finds on a complaint about the person):
(a) that the person is not competent to practise osteopathy, or
(b) that the person is guilty of professional misconduct, or
(c) that the person has been convicted of or made the subject of a
criminal finding for an offence, either in or outside New South
Wales, and the circumstances of the offence are such as to
render the person unfit in the public interest to practise
osteopathy, or
(d) that the person is not of good character.
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Clause 53 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 5 Disciplinary powers of Board and Tribunal
(3) An order that a person's registration be cancelled is an order that the
person's name be removed from the Register or (if the person has
already ceased to be registered) that the person not be re-registered.
(4) An order may also provide that an application for review of the order
under Division 3 of Part 6 may not be made until after a specified time.
Division 6 Powers of the Board for the protection of the
public
54 Suspension or conditions to protect the public
(1) The Board must, if at any time it is satisfied that such action is
necessary for the purpose of protecting the life or physical or mental
health of any person:
(a) by order suspend a registered osteopath from practising
osteopathy for such period (not exceeding 8 weeks) as is
specified in the order, or
(b) impose on a registered osteopath's registration such conditions,
relating to the osteopath's practising osteopathy, as it considers
appropriate.
(2) The Board may take such action:
(a) whether or not a complaint has been made or referred to the
Board about the osteopath, and
(b) whether or not proceedings in respect of such a complaint are
before the Tribunal.
55 Power to remove or alter conditions
The Board may at any time alter or remove conditions imposed under
this Division.
56 Referral of matter to Commission
(1) The Board must, as soon as practicable after taking any action under
section 54 and, in any event, within 7 days after taking that action,
refer the matter to the Commission for investigation.
(2) The matter is to be dealt with by the Commission as a complaint made
to the Commission against the osteopath concerned.
Page 30
Osteopaths Bill 2001 Clause 56
Complaints and disciplinary proceedings Part 4
Powers of the Board for the protection of the public Division 6
(3) The Commission is to investigate the complaint or cause it to be
investigated and, as soon as practicable after it has completed its
investigation, refer the complaint to the Tribunal or to the Board to be
dealt with by inquiry at a meeting of the Board under Division 4.
(4) Section 36 (Serious complaints must be referred to Tribunal) applies
in respect of any such action by the Commission.
(5) This section does not apply if the Board imposes conditions on the
registration of a registered osteopath under section 54 because the
Board is of the opinion that the osteopath suffers from an impairment.
57 Special provisions--impairment
(1) This section applies if the Board imposes conditions on the registration
of a registered osteopath under section 54 because the Board is of the
opinion that the osteopath suffers from an impairment.
(2) The Board must, as soon as practicable after taking that action and, in
any event, within 7 days after taking that action, notify the
Commission that it has taken that action.
(3) The Board is to consult with the Commission to see if agreement can
be reached as to whether the matter should be:
(a) dealt with as a complaint against the osteopath, or
(b) referred to an Impaired Registrants Panel.
(4) The matter is to be dealt with as a complaint against the osteopath only
if, following that consultation:
(a) the Board and the Commission agree that it should be dealt
with as a complaint, or
(b) either the Board or the Commission is of the opinion that the
matter should be dealt with as a complaint.
(5) In such a case, the Board is to refer the matter to the Commission and
the matter is to be dealt with by the Commission as a complaint made
to the Commission against the osteopath concerned.
(6) The Commission is to investigate the complaint or cause it to be
investigated and, as soon as practicable after it has completed its
investigation, refer the complaint to the Tribunal or to the Board to be
dealt with by inquiry at a meeting of the Board under Division 4.
(7) Section 36 (Serious complaints must be referred to Tribunal) applies
in respect of any such action by the Commission.
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Clause 57 Osteopaths Bill 2001
Part 4 Complaints and disciplinary proceedings
Division 6 Powers of the Board for the protection of the public
(8) If subsection (4) does not apply, the Board is to refer the matter to an
Impaired Registrants Panel.
58 Tribunal to be notified of suspensions
If the Board suspends a registered osteopath from practising osteopathy
under section 54, the Board must notify the Chairperson that it has
taken that action as soon as practicable after making the order and, in
any event, within 7 days.
59 Extension of suspension
A period of suspension imposed by the Board under this Division may
be extended, from time to time, by the Board by order for a further
period or further periods, each of not more than 8 weeks, but only if:
(a) the extension has been approved in writing by the Chairperson
or a Deputy Chairperson, and
(b) the complaint about the osteopath has not been disposed of.
60 Expiration of suspension
On the expiration of a period of suspension imposed under this
Division, the person's rights and privileges as a registered osteopath
are revived, subject to any order of the Tribunal on the complaint that
is referred to the Tribunal.
61 Duration of conditions--complaint matters
(1) This section applies if the Board imposes conditions on the registration
of a registered osteopath under section 54 and the matter is dealt with
as a complaint against the osteopath.
(2) The conditions imposed by the Board have effect until the complaint
about the osteopath is disposed of, or the conditions are removed by
the Board, whichever happens first.
(3) This section:
(a) does not prevent conditions being imposed under another
provision of this Act, and
(b) is subject to anything done by the Tribunal on an appeal under
section 76.
Page 32
Osteopaths Bill 2001 Clause 62
Complaints and disciplinary proceedings Part 4
Powers of the Board for the protection of the public Division 6
62 Duration of conditions--impairment matters
(1) This section applies if the Board imposes conditions on the
registration of a registered osteopath under section 54 and the matter
is referred to an Impaired Registrants Panel.
(2) The conditions imposed by the Board have effect until:
(a) the complaint about the osteopath is disposed of if the matter is
subsequently dealt with by the Board as a complaint, or
(b) the conditions are removed by the Board,
whichever happens first.
(3) The Board is not required to alter or remove conditions imposed under
this Division merely because an osteopath agrees to the imposition of
conditions on the osteopath's registration pursuant to the
recommendations of an Impaired Registrants Panel (as referred to in
section 71).
(4) A registered osteopath who agrees to the imposition of conditions on
the osteopath's registration pursuant to the recommendations of an
Impaired Registrants Panel may, by notice in writing to the Board,
request that the conditions imposed under this Division be removed or
altered.
(5) On receipt of such a request, the Board is to review the matter, and
may:
(a) refuse to remove or alter any of the conditions, or
(b) remove or alter the conditions.
(6) The Board is to give the osteopath concerned notice in writing of its
decision in respect of the request.
(7) The Board may specify in the notice a period in which a further
request by the osteopath under this section is not permitted. The Board
may reject a request that the conditions be removed or altered if it is
made during that period.
(8) This section:
(a) does not prevent conditions being imposed under another
provision of this Act, and
(b) is subject to anything done by the Tribunal on an appeal under
section 76.
Page 33
Clause 63 Osteopaths Bill 2001
Part 5 Impairment
Part 5 Impairment
63 Referral of impairment matters concerning osteopaths
(1) The Board may refer any matter to an Impaired Registrants Panel if the
Board considers that the matter indicates that a registered osteopath
suffers from an impairment. This is not limited to matters that are the
subject of a complaint to the Board.
(2) If the Board is aware that a complaint has been made to the
Commission about an osteopath who is the subject of a referral to an
Impaired Registrants Panel, the Board is to notify the Commission of
the referral.
64 Persons may notify Board of impairment matters concerning
osteopaths
A person may notify the Board of any matter that the person thinks
indicates that a registered osteopath suffers or may suffer from an
impairment.
65 Commission may refer impairment matters to Board
(1) If the Commission becomes aware of any matter that the Commission
considers indicates that a registered osteopath suffers or may suffer
from an impairment, the Commission may refer the matter to the
Board.
(2) This section does not affect the functions of the Board in relation to a
complaint made to the Commission or a matter referred to the
Commission for investigation.
66 Panel to inquire into matters referred to it
(1) An Impaired Registrants Panel is to inquire into any matter referred to
it and may obtain reports and other information concerning the matter
from any source it considers appropriate.
(2) The Panel may request a registered osteopath who is the subject of a
matter referred to the Panel by the Board, to attend before the Panel for
the purpose of enabling the Panel to obtain information on the matter
and make an assessment.
Page 34
Osteopaths Bill 2001 Clause 67
Impairment Part 5
67 Panel not to take action while Commission investigating
An Impaired Registrants Panel is not to investigate or take any other
action in relation to any matter if the Panel is aware that the matter is
the subject of an investigation by the Commission, while the
investigation is being conducted.
68 Board to give notice of proposed inquiry
The Board is to give notice to a registered osteopath of any proposed
inquiry by an Impaired Registrants Panel concerning the osteopath.
The notice is to include sufficient details of the matters to which the
inquiry is to relate.
69 Osteopath entitled to make representations
(1) A registered osteopath who is the subject of any inquiry by an
Impaired Registrants Panel is entitled to make oral or written
representations to the Panel with respect to the matters being or to be
the subject of the inquiry.
(2) This section does not prevent the Panel from conducting an inquiry in
the absence of the registered osteopath to whom it relates, as long as
the osteopath has been given notice of the inquiry under section 68.
70 Assessment, report and recommendations by Panel
(1) An Impaired Registrants Panel is to make an assessment in respect of
each referral to it, based on the results of its inquiry into the matter.
(2) On the basis of its assessment, the Panel may do any one or more of
the following things:
(a) counsel the osteopath concerned or recommend that he or she
undertake specified counselling,
(b) recommend that the osteopath concerned agree to conditions
being imposed on his or her registration or to being suspended
from practising osteopathy for a specified period,
(c) make recommendations to the Board as to any action that the
Panel considers should be taken in relation to the matter.
(3) The Panel is to report in writing to the Board on each referral to the
Panel. The report is to detail the results of the Panel's inquiries and
assessment in respect of the referral and any action taken by the Panel
under this Part in relation to it.
Page 35
Clause 71 Osteopaths Bill 2001
Part 5 Impairment
71 Voluntary suspension or conditions on registration
The Board may place conditions on a registered osteopath's
registration or suspend the osteopath from practising osteopathy if:
(a) an Impaired Registrants Panel has recommended that the Board
do so, and
(b) the Board is satisfied that the osteopath has voluntarily agreed
to the recommendation.
72 Review of conditions
(1) A registered osteopath who agrees to conditions being imposed on his
or her registration or to being suspended from practising osteopathy
may, by notice in writing to the Board, request:
(a) that those conditions be removed or altered, or
(b) that the suspension be terminated or shortened.
(2) On receipt of such a request, the Board is to require an Impaired
Registrants Panel to review the matter and report in writing to the
Board on the results of its review.
(3) If the Panel recommends that the Board refuse to remove or alter any
of the conditions, or refuse to terminate or shorten the suspension, the
Board may do so.
(4) The Board is to give the osteopath concerned notice in writing of its
decision in respect of the request.
(5) The Board may specify in the notice a period in which a further
request by the osteopath under this section is not permitted. The Board
may reject a request that the conditions be removed or altered, or that
the suspension be terminated or shortened, if it is made during that
period.
73 Some matters to be dealt with as complaints
(1) If an Impaired Registrants Panel recommends that a registered
osteopath agree to conditions being imposed on his or her registration
or to being suspended from practising osteopathy and the osteopath
fails to agree in accordance with the recommendation, the Board is to
deal with the matter that was the subject of the referral to the Panel as
a complaint against the osteopath.
Page 36
Osteopaths Bill 2001 Clause 73
Impairment Part 5
(2) If the Panel recommends that a matter referred to it be dealt with as a
complaint, the Board is to deal with the matter as a complaint against
the osteopath concerned.
(3) In any other case that the Board thinks it appropriate to do so, the
Board may treat a matter that has been referred to a Panel as grounds
for a complaint under this Act and may deal with the matter
accordingly.
74 Confidentiality of Panel's report
(1) A report by an Impaired Registrants Panel to the Board may not be
admitted or used in any civil proceedings before a court.
(2) A person may not be compelled to produce the report or to give
evidence in relation to the report or its contents in any such civil
proceedings.
(3) A person must not directly or indirectly make a record of or disclose
to any person any information contained in a report by an Impaired
Registrants Panel to the Board that has come to the person's notice in
the exercise of the person's functions under this Act, except for the
purposes of exercising functions under this Act.
Maximum penalty: 50 penalty units.
(4) This section does not prevent the disclosure of such a report to the
Commission.
(5) In this section:
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions, but
does not include the Tribunal or the Board, or the Supreme Court (in
respect of appeal proceedings under this Act).
report includes a copy, reproduction and duplicate of the report or any
part of the report, copy, reproduction or duplicate.
Page 37
Clause 75 Osteopaths Bill 2001
Part 6 Appeals and review of disciplinary action
Division 1 Appeals against actions of the Board
Part 6 Appeals and review of disciplinary action
Division 1 Appeals against actions of the Board
75 Appeals against actions of the Board on a complaint
(1) When a complaint has been dealt with at a meeting of the Board under
Division 4 of Part 4, the osteopath or the Commission may appeal to
the Tribunal against:
(a) a finding of the Board, or
(b) the exercise of any power by the Board under Division 5
(Disciplinary powers of Board and Tribunal) of Part 4.
(2) An appeal must be made within 28 days (or such longer period as the
Chairperson may allow in a particular case) after:
(a) the Board's written statement of the decision by which the
Board's finding is made is made available to the appellant, or
(b) the exercise of the power against which the appeal is made.
(3) The appeal must be lodged with the Registrar who is to refer it to the
Tribunal.
(4) The appeal is to be dealt with by way of rehearing and fresh evidence,
or evidence in addition to or in substitution for the evidence received
at the meeting of the Board, may be given.
(5) The Tribunal may:
(a) dismiss the appeal, or
(b) make any finding or exercise any power or combination of
powers that the Tribunal could have made or exercised if the
complaint had been originally referred to the Tribunal.
(6) An appeal under this section does not affect any finding or exercise of
power with respect to which it has been made until the Tribunal makes
an order on the appeal.
Page 38
Osteopaths Bill 2001 Clause 76
Appeals and review of disciplinary action Part 6
Appeals against actions of the Board Division 1
76 Appeal against suspension or imposition of conditions by
Board--impairment matters
(1) A person may appeal to the Tribunal:
(a) against a suspension or extension of a suspension by the Board
under Division 6 (Powers of the Board for the protection of the
public) of Part 4, or
(b) against conditions imposed by the Board on the person's
registration under Division 6 of Part 4 or Part 5 or any
alteration of those conditions by the Board, or
(c) against a refusal by the Board to alter or remove conditions
imposed by the Board under Division 6 of Part 4 in accordance
with a request made by the person under section 62, or
(d) against a refusal by the Board to remove or alter conditions
imposed on the person's registration, or to shorten or terminate
a suspension, imposed under Part 5 in accordance with a
request made by the person under section 72.
(2) An appeal may not be made in respect of a request by a person that is
rejected by the Board because it was made during a period in which
the request was not permitted under section 62 or 72.
(3) An appeal must be made within 28 days (or such longer period as the
Chairperson may allow in a particular case) after notice of the action
taken by the Board, or the Board's refusal, is given to the person.
(4) An appeal is to be lodged with the Registrar who is to refer it to the
Tribunal.
(5) On an appeal, the Tribunal may, by order, do any of the following:
(a) dismiss the appeal,
(b) remove or alter the conditions to which the osteopath's
registration is subject (including by imposing new conditions on
the osteopath's registration),
(c) terminate or shorten the period of the suspension concerned.
(6) The Tribunal's order must not cause a suspension or conditions
imposed by the Board to have effect beyond the day on which any
related complaint about the person is disposed of.
(7) An appeal under this section does not affect any suspension or
conditions with respect to which it has been made until the Tribunal
makes an order on the appeal.
Page 39
Clause 77 Osteopaths Bill 2001
Part 6 Appeals and review of disciplinary action
Division 1 Appeals against actions of the Board
77 Appeal on point of law
(1) When a complaint is dealt with at a meeting of the Board under
Division 4 of Part 4, the osteopath or the Commission may appeal with
respect to a point of law to the Chairperson or a Deputy Chairperson
nominated by the Chairperson.
(2) An appeal may be made in accordance with the regulations during the
meeting of the Board to deal with the complaint or within the period
after the date of giving of notice of the meeting and before the
commencement of the meeting.
(3) If the meeting of the Board to deal with the complaint has not been
completed when an appeal is made, the Board must not continue to
deal with the complaint until the appeal has been disposed of.
(4) The Board must not make any decision that is inconsistent with the
Chairperson's or Deputy Chairperson's determination with respect to
the point of law.
Division 2 Appeals against actions of Tribunal
78 Preliminary appeal on point of law
(1) An appeal with respect to a point of law may be made to the Supreme
Court by the osteopath or the complainant during an inquiry on a
complaint conducted by the Tribunal or after the complaint is referred
to the Tribunal and before the commencement of the inquiry, but can
only be made with the leave of the Chairperson or a Deputy
Chairperson.
(2) If an inquiry conducted by the Tribunal has not been completed when
an appeal with respect to a point of law is made, the inquiry before the
Tribunal is not to continue until the appeal has been disposed of.
(3) The Tribunal must not make any decision that is inconsistent with the
Supreme Court's determination with respect to the point of law when
it recommences the inquiry.
79 Appeal against Tribunal's decisions and actions
(1) An osteopath about whom a complaint is referred to the Tribunal, or
the complainant, may appeal to the Supreme Court against:
(a) a decision of the Tribunal with respect to a point of law, or
Page 40
Osteopaths Bill 2001 Clause 79
Appeals and review of disciplinary action Part 6
Appeals against actions of Tribunal Division 2
(b) the exercise of any power by the Tribunal under Division 5
(Disciplinary powers of Board and Tribunal) of Part 4.
(2) The appeal must be made within 28 days (or such longer period as the
Court may allow in a particular case) after the Tribunal's written
statement of the decision by which the Tribunal's finding is made is
made available to the appellant.
(3) The Supreme Court may stay any order made by the Tribunal, on such
terms as the Court sees fit, until such time as the Court determines the
appeal.
80 Powers of Court on appeal
(1) In determining the appeal, the Supreme Court may:
(a) dismiss the appeal, or
(b) make such order as it thinks proper having regard to the merits
of the case and the public welfare, and in doing so may exercise
any one or more of the powers of the Tribunal under this Act.
(2) If the Court dismisses an appeal against an order of the Tribunal, the
Court may by order direct that the Tribunal's order is to be taken to
include provision that an application for its review under Division 3
may not be made until after a specified time.
Division 3 Review of suspension, cancellation or conditions
81 Right of review
(1) A person may apply to the appropriate review body for a review of an
order of the Board, the Chairperson or a Deputy Chairperson, the
Tribunal or the Supreme Court:
(a) that the registration of the person is suspended, or
(b) that the person's name be removed from the Register or that the
person not be re-registered, or
(c) that conditions be imposed on the person's registration.
(2) A person may also apply to the appropriate review body for a review
of an order made under this Division.
Page 41
Clause 81 Osteopaths Bill 2001
Part 6 Appeals and review of disciplinary action
Division 3 Review of suspension, cancellation or conditions
(3) An application for review of an order may not be made:
(a) while the terms of the order provide that an application for
review may not be made, or
(b) while an appeal under this Part to the Tribunal or the Supreme
Court in respect of the same matter is pending.
82 Appropriate review body
(1) The appropriate review body is the Tribunal except in a case where
the order being reviewed provides that it may be reviewed by the
Board, in which case the Board is the appropriate review body.
(2) An application for review must be lodged with the Registrar who is to
refer it to the appropriate review body.
83 Powers on review
(1) The appropriate review body is to conduct an inquiry into an
application for review and may then do any of the following:
(a) dismiss the application,
(b) by its order terminate or shorten the period of the suspension
concerned,
(c) make a reinstatement order,
(d) make an order altering the conditions to which the person's
registration is subject (including by imposing new conditions).
(2) A reinstatement order is an order that the person be registered subject
to the same conditions and limitations (if any) to which the person's
registration was subject immediately before the person ceased to be
registered. The appropriate review body may also impose conditions
on the person's registration or alter the conditions to which the
person's registration is to be subject under the reinstatement order.
(3) The Commission is entitled to make submissions in respect of the
application at the inquiry into the application.
(4) The Board is to take such action as may be necessary to give effect to
a reinstatement order.
(5) The order on a review under this section may also provide that the
order is not to be reviewed under this Division until after a specified
time.
Page 42
Osteopaths Bill 2001 Clause 84
Appeals and review of disciplinary action Part 6
Review of suspension, cancellation or conditions Division 3
84 Nature of review
(1) A review under this Division is a review to determine the
appropriateness, at the time of the review, of the order concerned.
(2) The review is not to reconsider the decision to make the order or any
findings made in connection with the making of that decision, unless
significant fresh evidence is produced that was not previously
available for consideration and the appropriate review body is of the
opinion that, in the circumstances of the case, that decision or any such
finding should be reconsidered.
Page 43
Clause 85 Osteopaths Bill 2001
Part 7 Osteopaths Registration Board
Part 7 Osteopaths Registration Board
85 Constitution of the Board
There is constituted by this Act a body corporate under the corporate
name of the Osteopaths Registration Board.
86 Functions of the Board
(1) The Board has the following functions:
(a) such functions as are conferred or imposed on the Board by or
under this or any other Act,
(b) to promote and maintain standards of osteopathy practice in
New South Wales,
(c) to advise the Minister on matters relating to the registration of
osteopaths, standards of osteopathy practice and any other
matter arising under or related to this Act or the regulations,
(d) to publish and distribute information concerning this Act and
the regulations to osteopaths, consumers and other interested
persons.
(2) The Board is to exercise its functions in a manner that is consistent
with the object of this Act.
87 Membership of the Board
(1) The Board is to consist of 7 members appointed by the Governor.
(2) The members are to be:
(a) a person nominated by the Minister, being an officer of the
Department of Health or an employee of an area health service,
statutory health corporation or affiliated health organisation
within the meaning of the Health Services Act 1997,
(b) 2 registered osteopaths nominated by the Minister from a panel
of osteopaths nominated by the Australian Osteopathic
Association, New South Wales, and such other bodies
representing osteopaths as may be determined by the Minister,
(c) 1 registered osteopath nominated by the Minister, being a
registered osteopath involved in the tertiary education of
persons for qualification in New South Wales as osteopaths,
Page 44
Osteopaths Bill 2001 Clause 87
Osteopaths Registration Board Part 7
(d) 1 registered osteopath nominated by the Minister of the
Minister's own choosing,
(e) 1 person (not being a registered osteopath) nominated by the
Minister to represent the community,
(f) 1 legal practitioner nominated by the Minister.
(3) If the panel of osteopaths required to be nominated for the purposes of
subsection (2) (b) is not nominated within such time or in such manner
as may be specified by the Minister by notice to the association or
associations concerned, the Governor may instead appoint as a
member a person nominated by the Minister.
88 Staff
A Registrar and such other staff as may be necessary to enable the
Board to exercise its functions are to be employed under the Health
Administration Act 1982 by the Health Administration Corporation.
89 Committees
(1) The Board may establish committees to assist it in connection with the
exercise of any of its functions.
(2) It does not matter that any or all of the members of a committee are
not members of the Board.
(3) A member of a committee, while sitting on the committee, is entitled
to be paid by the Board such amount as the Minister from time to time
determines in respect of the member.
(4) The procedure for the calling of meetings of a committee and for the
conduct of business at those meetings may be determined by the Board
or (subject to any determination of the Board) by the committee.
90 Delegation of functions
(1) The Board may delegate any of its functions (other than this power of
delegation and the function of authorising by resolution the
expenditure of money from the Osteopathy Education and Research
Account) to:
(a) the President, or
(b) the Deputy President, or
(c) a committee consisting of 2 or more members of the Board, or
(d) the Registrar or any other member of staff of the Board.
Page 45
Clause 90 Osteopaths Bill 2001
Part 7 Osteopaths Registration Board
(2) The Board must not delegate any of its functions under Part 4
(Complaints and disciplinary proceedings) to the Registrar or any other
member of the staff of the Board.
(3) The Registrar may delegate to a member of the staff of the Board the
exercise of:
(a) any of the functions of the Registrar under this Act, other than
this power of delegation, or
(b) any functions delegated to the Registrar by the Board, unless
the Board otherwise provides in its instrument of delegation to
the Registrar.
91 Other provisions relating to the Board
(1) Schedule 2 has effect with respect to the members of the Board.
(2) Schedule 3 has effect with respect to the procedure of the Board.
Page 46
Osteopaths Bill 2001 Clause 92
Osteopathy Care Assessment Committee Part 8
Part 8 Osteopathy Care Assessment Committee
92 Constitution of the Osteopathy Care Assessment Committee
There is constituted by this Act the Osteopathy Care Assessment
Committee.
93 Functions of the Committee
The Committee has the functions conferred or imposed on it by or
under this or any other Act.
94 Membership of the Committee
(1) The Committee is to consist of 4 members appointed by the Minister.
(2) Of the members:
(a) one is to be a registered osteopath nominated by the Board, and
(b) two are to be registered osteopaths appointed from a panel of
names furnished to the Minister by the Board, and
(c) one is to be a person appointed by the Minister to be a
representative of consumers.
(3) If the Board does not furnish a panel of names within such time or in
such manner as may be specified by the Minister by notice in writing
to the Board, the Minister may instead appoint to be members 2
registered osteopaths determined by the Minister.
(4) A person cannot be a member of the Committee while the person is a
member of the Board.
95 Other provisions relating to the Committee
Schedule 4 has effect with respect to the members and the procedure
of the Committee.
Page 47
Clause 96 Osteopaths Bill 2001
Part 9 Impaired Registrants Panels
Part 9 Impaired Registrants Panels
96 Impaired Registrants Panels
There are to be Impaired Registrants Panels for the purposes of this
Act. An Impaired Registrants Panel has and may exercise the
jurisdiction and functions conferred or imposed on it by or under this
or any other Act.
97 Board to constitute Panel when required
(1) When the Board decides to refer a matter to an Impaired Registrants
Panel it is to appoint 2 persons, at least one of whom is a registered
osteopath, to sit as the Panel for the purpose of dealing with the
matter.
(2) A person may be appointed to sit on an Impaired Registrants Panel
whether or not the person is a member of the Board, but not if the
person has previously dealt with the particular matter before the Panel
in his or her capacity as a member of the Board.
(3) A member of an Impaired Registrants Panel, while sitting on the
Panel, is entitled to be paid by the Board at the rate determined by the
Minister from time to time.
98 Decisions of a Panel
(1) A decision supported by both members of a Panel is the decision of the
Panel.
(2) If the members of an Impaired Registrants Panel disagree as to any
matter that is dealt with by the Panel, the Panel's report to the Board
is to include details of the disagreement and the reasons for it.
Page 48
Osteopaths Bill 2001 Clause 99
Osteopaths Tribunal Part 10
Constitution of the Tribunal Division 1
Part 10 Osteopaths Tribunal
Division 1 Constitution of the Tribunal
99 The Osteopaths Tribunal
(1) There is to be an Osteopaths Tribunal for the purposes of this Act.
(2) The Tribunal is to be constituted in accordance with this Act to deal
with a matter referred to it or an appeal or application made to it under
this Act.
(3) The Tribunal has and may exercise the jurisdiction and functions
conferred or imposed on it by or under this or any other Act.
100 Chairperson and Deputy Chairpersons of the Tribunal
(1) The Governor may appoint a legal practitioner of at least 7 years'
standing as Chairperson of the Tribunal and may appoint one or more
legal practitioners of at least 7 years' standing as Deputy Chairpersons
of the Tribunal.
(2) The Chairperson and each Deputy Chairperson hold office for such
period not exceeding 7 years as may be specified in the instrument of
appointment as Chairperson or Deputy Chairperson, but are eligible (if
otherwise qualified) for re-appointment.
(3) A Deputy Chairperson can be appointed by the Governor for the
purpose of conducting or hearing a particular inquiry or appeal, as
described in the instrument of appointment of the Deputy Chairperson.
(4) A Deputy Chairperson, while sitting on the Tribunal, has and may
exercise all the functions conferred or imposed on the Chairperson by
this Act (other than those conferred by section 101 (2)).
(5) The Chairperson or a Deputy Chairperson sitting on the Tribunal is
entitled to be paid such remuneration (including travelling and
subsistence allowances) as the Minister may from time to time
determine in respect of each of them.
Page 49
Clause 100 Osteopaths Bill 2001
Part 10 Osteopaths Tribunal
Division 1 Constitution of the Tribunal
(6) The Governor may appoint a Deputy Chairperson to act in the office
of Chairperson during the illness or absence of the Chairperson and the
Deputy Chairperson, while so acting, has and may exercise all the
functions of the Chairperson and is taken to be the Chairperson.
(7) Part 2 of the Public Sector Management Act 1988 does not apply to or
in respect of the appointment of the Chairperson or a Deputy
Chairperson.
101 Tribunal to be constituted to deal with complaints etc
(1) The Board is to inform the Chairperson and appoint 3 other persons to
sit on the Tribunal when:
(a) a complaint or other matter is referred to the Tribunal, or
(b) the Commission decides, in accordance with the Health Care
Complaints Act 1993, to prosecute a complaint before the
Tribunal, or
(c) an appeal or application under this Act to the Tribunal is lodged
with the Registrar.
(2) The Chairperson is then to nominate himself or herself or a Deputy
Chairperson to sit on the Tribunal for the purpose of conducting an
inquiry into the complaint, matter or application or hearing the appeal.
(3) For the purpose of conducting an inquiry or hearing an appeal, the
Tribunal is to consist of:
(a) the Chairperson or a Deputy Chairperson, and
(b) 2 registered osteopaths having such qualifications as may be
prescribed, appointed by the Board, and
(c) one lay person (that is, a person who is not a registered
osteopath) appointed by the Board from a panel of lay persons
for the time being nominated by the Minister.
(4) A person may not be appointed to sit on the Tribunal if the person is
a member of the Board.
(5) A person may not be appointed to sit on the Tribunal if the person has
previously dealt with the particular matter before the Tribunal in his or
her capacity as a member of the Board or the Committee.
(6) The Tribunal, as constituted by different persons or the same persons,
may conduct or hear more than one inquiry or appeal at the same time.
Page 50
Osteopaths Bill 2001 Clause 102
Osteopaths Tribunal Part 10
Constitution of the Tribunal Division 1
102 Effect of vacancy on Tribunal
(1) If one of the members (other than the Chairperson or Deputy
Chairperson) constituting the Tribunal for the purpose of conducting
a hearing vacates office for any reason before an inquiry or appeal is
completed or a decision is made in respect of an inquiry or appeal, the
inquiry or appeal may be continued and a determination made by the
remaining members of the Tribunal.
(2) If more than one of the members vacate office or the Chairperson or
Deputy Chairperson vacates office for any reason before the Tribunal
has completed an inquiry or appeal or made a determination in respect
of an inquiry or appeal, the inquiry or appeal is terminated.
(3) When an inquiry or appeal is terminated, the Tribunal may be
reconstituted in accordance with this Part for the purposes of
conducting a new inquiry or appeal in respect of the matter concerned.
103 Payment of non-legal Tribunal members
A member of the Tribunal (other than the Chairperson or a Deputy
Chairperson) is while sitting on the Tribunal entitled to be paid by the
Board at the rate determined by the Minister from time to time.
104 Seal of the Tribunal
The Tribunal is to have a seal of which all courts and persons acting
judicially are to take judicial notice.
Division 2 Proceedings of the Tribunal
105 Decisions of the Tribunal
(1) The decision of the Chairperson or a Deputy Chairperson on any
question of law or procedure arising during an inquiry or appeal at
which the Chairperson or Deputy Chairperson presides is the decision
of the Tribunal for the purposes of the inquiry or appeal.
(2) A decision supported by at least 3 members of the Tribunal with
respect to a question (other than with respect to a point of law or
procedure) arising during an inquiry or appeal before the Tribunal is
the decision of the Tribunal.
Page 51
Clause 105 Osteopaths Bill 2001
Part 10 Osteopaths Tribunal
Division 2 Proceedings of the Tribunal
(3) If 2 members support the decision and 2 members oppose the decision,
the decision of the Chairperson or Deputy Chairperson presiding is the
decision of the Tribunal.
106 Time when orders take effect
An order of the Tribunal under this Act takes effect on the day on
which the order is made or on such later day as is specified in the
order.
107 Powers of Tribunal exercised by Supreme Court
A power of the Tribunal exercised under this Act by the Supreme
Court is, except for the purposes of any appeal, taken to have been
exercised by the Tribunal.
108 Registrar to be informed of disciplinary action
The Tribunal is to inform the Registrar of the exercise of any power
under Part 4 (Complaints and disciplinary proceedings) by the
Tribunal.
Division 3 Inquiries, appeals etc before the Tribunal
109 Jurisdiction
(1) The members of the Tribunal are to conduct an inquiry into any
complaint, matter or application and are to hear any appeal referred to
it.
(2) No inquiry need be conducted into a complaint if the osteopath who
is the subject of the complaint admits the subject-matter of the
complaint in writing to the Tribunal.
110 Notice of time and place of inquiry or appeal
The Chairperson or a Deputy Chairperson nominated to sit on the
Tribunal is to fix a time and place for the conducting of the inquiry or
the hearing of the appeal by the Tribunal and is to give not less than 14
days' notice of the inquiry or appeal to each of the following:
(a) the osteopath concerned,
(b) the complainant, if any,
(c) the Director-General and the Board,
Page 52
Osteopaths Bill 2001 Clause 110
Osteopaths Tribunal Part 10
Inquiries, appeals etc before the Tribunal Division 3
(d) in the case of an appeal or an inquiry into a complaint, the
Commission.
111 Conduct of proceedings
(1) The Tribunal is to conduct proceedings on an inquiry or appeal as it
thinks fit.
(2) Proceedings of the Tribunal are to be open to the public except when
the Tribunal otherwise directs.
(3) The Tribunal is not to direct that proceedings are to be closed to the
public unless satisfied that it is desirable to do so in the public interest
for reasons connected with the subject-matter of the inquiry or appeal
or the nature of the evidence to be given.
(4) The Tribunal may proceed to determine an inquiry or appeal in the
absence of the osteopath.
(5) Schedule 5 has effect with respect to any inquiry conducted or appeal
heard by the Tribunal.
112 Representation before the Tribunal
(1) At an inquiry conducted or appeal heard by the Tribunal, the registered
osteopath and any complainant concerned are entitled to attend and to
be represented by a legal practitioner or another adviser.
(2) The Tribunal may grant leave for any other person to appear (whether
in person or by a legal practitioner or another adviser) at an inquiry or
appeal if the Tribunal is satisfied that it is appropriate for that person
to appear.
113 Chairperson or Deputy Chairperson not to review own decisions
The Chairperson or Deputy Chairperson must not sit on the Tribunal
for the purpose of conducting any inquiry or hearing any appeal
relating to a particular matter before the Tribunal if a decision has been
made by the Chairperson or a Deputy Chairperson in relation to the
matter.
114 Adjournments and interlocutory orders
(1) The Tribunal may adjourn proceedings for any reason it thinks fit.
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Clause 114 Osteopaths Bill 2001
Part 10 Osteopaths Tribunal
Division 3 Inquiries, appeals etc before the Tribunal
(2) The Tribunal may, during any proceedings, exercise any power or
combination of powers conferred on the Tribunal by section 53
(Powers of the Tribunal), except the power to caution or reprimand.
115 Tribunal to provide details of its decision
(1) The Tribunal must provide a written statement of a decision on an
inquiry or appeal to the complainant, to the osteopath concerned and
to the Board, and must do so as soon as practicable after the decision
is made (bearing in mind the public welfare and seriousness of the
matter).
(2) The statement of a decision must:
(a) set out any findings on material questions of fact, and
(b) refer to any evidence or other material on which the findings
were based, and
(c) give the reasons for the decision.
(3) The Tribunal may also provide the statement of a decision to such
other persons as the Tribunal thinks fit.
(4) The Board may disseminate the statement of a decision provided to it
under this section as the Board thinks fit, unless the Tribunal has
ordered otherwise.
116 Statement need not contain confidential information
(1) The Tribunal is not required to include confidential information in the
statement of a decision. If a statement would be false or misleading if
it did not include the confidential information, the Tribunal is not
required to provide the statement.
(2) When confidential information is not included in the statement of a
decision provided to a person or the statement is not provided to a
person because of subsection (1), the Tribunal must give a confidential
information notice to the person.
(3) A confidential information notice is a notice that indicates that
confidential information is not included or that the statement will not
be provided (as appropriate) and gives the reasons for this. The notice
must be in writing and must be given within one month after the
decision is made.
Page 54
Osteopaths Bill 2001 Clause 116
Osteopaths Tribunal Part 10
Inquiries, appeals etc before the Tribunal Division 3
(4) This section does not affect the power of a court to make an order for
the discovery of documents or to require the giving of evidence or the
production of documents to a court.
(5) In this section:
confidential information means information that:
(a) has not previously been published or made available to the
public when a written statement of a decision to which it is or
may be relevant is being prepared, and
(b) relates to the personal or business affairs of a person, other than
a person to whom the Tribunal is required (or would, but for
subsection (1), be required) to provide a written statement of a
decision, and
(c) is information:
(i) that was supplied in confidence, or
(ii) the publication of which would reveal a trade secret, or
(iii) that was provided in compliance with a duty imposed
by an enactment, or
(iv) the provision of which by the Tribunal would be in
breach of any enactment.
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Clause 117 Osteopaths Bill 2001
Part 11 Miscellaneous
Part 11 Miscellaneous
117 Application of Criminal Records Act
For the purposes of the application of this Act in respect of a criminal
finding, the Criminal Records Act 1991 applies in respect of a criminal
finding as if section 8 (2) and (4) of that Act were omitted.
Note. Section 8 (2) and (4) of the Criminal Records Act 1991 make special
provision for when criminal findings become "spent" under that Act. The omission
of those subsections will mean that in determining when a criminal finding becomes
spent for the purposes of this Act, criminal findings will be treated as ordinary
convictions and the relevant crime-free period will be as provided by section 9 of
that Act.
118 How notice is to be given
(1) A requirement of this Act that a person be given notice is a
requirement that the person be given notice in writing either personally
or by post.
(2) For the purposes of section 76 of the Interpretation Act 1987, a notice
served by post on a person for the purposes of this Act is to be treated
as being properly addressed if it is addressed to the address of the
person last known to the Registrar or last recorded in the Register.
119 Service of documents on Board
A document (other than a complaint made under Part 4) may be
served on the Board by leaving it at or sending it by post to any office
of the Board. This section does not affect the operation of any
provision of a law or of the rules of a court authorising a document to
be served on the Board in any other manner.
120 Written statement of decisions
(1) If the Board, the Board's President or a member authorised by the
Board makes a decision concerning a person under any provision of
this Act, the person may request in writing that the Board, President or
member provide the person with a written statement of the decision.
(2) Any such request is to be made no later than 60 days after the decision
to which it relates.
(3) The Board, the President or the member is to provide a written
statement of the decision within 30 days after receiving such a request.
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Osteopaths Bill 2001 Clause 120
Miscellaneous Part 11
(4) A written statement of a decision must give the reasons for the
decision.
(5) The Board, the President or the member is not required to include
confidential information in the statement of a decision. If a statement
would be false or misleading if it did not include the confidential
information, the Board, the President or the member is not required to
provide the statement.
(6) When confidential information is not included in the statement of a
decision provided to a person or the statement is not provided to a
person because of subsection (5), the Board, the President or the
member must give a confidential information notice to the person.
(7) A confidential information notice is a notice that indicates that
confidential information is not included or that the statement will not
be provided (as appropriate) and gives reasons for this. The notice
must be in writing and must be given within one month after the
decision is made.
(8) This section does not affect the power of a court to make an order for
the discovery of documents or to require the giving of evidence or the
production of documents to a court.
(9) In this section:
confidential information means information that:
(a) has not previously been published or made available to the
public when a written statement of a decision to which it is or
may be relevant is being prepared, and
(b) relates to the personal or business affairs of a person, other than
a person to whom the Board, the President or the member is
required (or would, but for subsection (5), be required) to
provide a written statement of a decision, and
(c) is information:
(i) that was supplied in confidence, or
(ii) the publication of which would reveal a trade secret, or
(iii) that was provided in compliance with a duty imposed
by an enactment, or
(iv) the provision of which by the Board, the President or
the member would be in breach of any enactment.
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Clause 121 Osteopaths Bill 2001
Part 11 Miscellaneous
121 Notice of disciplinary action to other Boards
(1) When the registration of an osteopath is suspended or cancelled or any
condition is imposed on the registration of an osteopath:
(a) the Board must without delay notify particulars of that action to
the local registration authority of each neighbouring
jurisdiction, and
(b) the Board may notify particulars of that action to the local
registration authority of any other jurisdiction.
(2) When the registration of an osteopath is suspended or cancelled or any
condition is imposed on the registration of an osteopath, and the Board
is aware that the osteopath is registered under a health registration Act,
the Board must without delay notify particulars of that action to the
registration authority under that Act.
(3) The Board is required or authorised to act under this section despite
any law relating to secrecy or confidentiality.
(4) This section does not affect any obligation or power to provide
information under the Mutual Recognition laws.
(5) In this section:
local registration authority of a jurisdiction means the person or
authority in the jurisdiction having the function conferred by
legislation of registering persons in connection with the carrying on of
osteopathy in the jurisdiction.
neighbouring jurisdiction means each Australian State, the Australian
Capital Territory, the Northern Territory and New Zealand.
registration includes the licensing, approval, admission, certification
(including by way of practising certificates), or any other form of
authorisation, of a person required by or under legislation for the
carrying on of the practice of osteopathy.
122 False or misleading entries and statements
A person must not:
(a) make or cause to be made in the Register an entry that the
person knows to be false or misleading or alter an entry in the
Register with intent to render the entry false or misleading, or
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Osteopaths Bill 2001 Clause 122
Miscellaneous Part 11
(b) for the purposes of obtaining registration as an osteopath either
for that person or for anyone else, make a statement, whether
orally or in writing, that the person knows to be false or
misleading.
Maximum penalty: 50 penalty units or imprisonment for 12 months,
or both.
123 Evidentiary certificates and evidence of entry in Register
(1) A certificate purporting to have been signed by the Registrar to the
effect that:
(a) a person specified in the certificate was or was not a registered
osteopath at a time or during a period so specified, or
(b) the name of a person specified in the certificate was removed
from the Register at a time so specified, or
(c) the registration of a person specified in the certificate was
suspended from a time so specified and for a period so
specified, or
(d) a condition, particulars of which are set out in the certificate,
was, at a time or during a period so specified:
(i) imposed on the registration of a person so specified, or
(ii) revoked or not in force,
is, without proof of the signature of the person by whom the certificate
purports to have been signed, admissible in any proceedings and is
prima facie evidence of the matter certified in it.
(2) An entry in the Register is admissible in any proceedings and is prima
facie evidence of the matter stated in it.
(3) A document purporting to be a copy of an entry in the Register,
purportedly signed by the Registrar, is admissible in any proceedings
and is prima facie evidence of the matter stated in it.
124 Authentication of certain documents
Every certificate, summons, process, demand, order, notice, statement,
direction or other document requiring authentication by the Board may
be sufficiently authenticated without the seal of the Board if signed by:
(a) the President or the Registrar, or
(b) any officer of the Board authorised to do so by the Registrar.
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Clause 125 Osteopaths Bill 2001
Part 11 Miscellaneous
125 Fees
(1) The Registrar is required to transmit to the Health Administration
Corporation for payment into an account established under
section 13A of the Health Administration Act 1982 all money received
by the Board (whether for fees or otherwise), not being money that is
required to be dealt with in some other manner.
(2) The Board may at any time waive payment of part or all of a fee
payable under this Act, whether in a particular case or in a class of
cases.
(3) The power to waive payment of fees extends to any fee payable in
relation to registration as an osteopath under the Mutual Recognition
laws.
126 Osteopathy Education and Research Account
(1) The Board is to establish an Osteopathy Education and Research
Account.
(2) Such amounts as are determined by the Minister from time to time are
to be paid into the Account by the Board from fees payable under this
Act or the regulations.
(3) Money in the Account may be expended by the Board for any one or
more of the following:
(a) osteopathy education,
(b) education or research for any public purpose connected with
the practice of osteopathy,
(c) the publication and distribution of information concerning this
Act and the regulations,
(d) meeting administrative expenditure incurred with respect to the
Account and the purposes for which it is used,
or any related purpose.
(4) An expenditure of money under this section is not to be made unless
it is authorised by a resolution supported by at least 5 members of the
Board.
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Osteopaths Bill 2001 Clause 127
Miscellaneous Part 11
127 Appointment and powers of inspectors
(1) The Director-General may appoint any person as an inspector for the
purposes of this Act. The Director-General is to provide an inspector
with a certificate of authority.
(2) An inspector may exercise the powers conferred by this section for the
purpose of:
(a) ascertaining whether the provisions of this Act or the
regulations are being complied with or have been contravened,
or
(b) ascertaining whether section 10AC (Spinal manipulation not to
be practised by unregistered person) of the Public Health Act
1991 has been contravened, or
(c) investigating a complaint made or intended to be made under
Part 4.
(3) An inspector may, with the approval of the Board given on the
particular occasion, enter and inspect at any reasonable time any
premises that the inspector believes on reasonable grounds are being
used for the carrying on of the practice of osteopathy.
(4) While on premises entered under this section or under the authority of
a search warrant under section 128, an inspector may do any one or
more of the following:
(a) require any person on those premises to produce any records in
the possession or under the control of that person relating to the
carrying on of the practice of osteopathy or a contravention of
a provision of this Act or the regulations or of section 10AC of
the Public Health Act 1991,
(b) inspect, take copies of, or extracts or notes from, any such
records and, if the inspector considers it necessary to do so for
the purpose of obtaining evidence, seize any such records,
(c) examine and inspect any apparatus or equipment used or
apparently used in the course of the practice of osteopathy,
(d) take such photographs, films and audio, video and other
recordings as the inspector considers necessary,
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Clause 127 Osteopaths Bill 2001
Part 11 Miscellaneous
(e) require any person on those premises to answer questions or
otherwise furnish information in relation to the carrying on of
the practice of osteopathy or a contravention of a provision of
this Act or the regulations or of section 10AC of the Public
Health Act 1991,
(f) require the owner or occupier of those premises to provide the
inspector with such assistance and facilities as is or are
reasonably necessary to enable the inspector to exercise the
functions of an inspector under this section.
(5) An inspector is not entitled to enter a part of premises used for
residential purposes, except:
(a) with the consent of the occupier of the part, or
(b) under the authority of a search warrant.
(6) An inspector must, when exercising on any premises any function of
the inspector under this section, produce the inspector's certificate of
authority to any person apparently in charge of the premises who
requests its production.
(7) A person must not:
(a) without reasonable excuse, refuse or fail to comply with any
requirement made or to answer any question asked by an
inspector under the authority of this section, or
(b) wilfully delay, hinder or obstruct an inspector in the exercise of
the inspector's powers under this section, or
(c) furnish an inspector with information knowing it to be false or
misleading in a material particular.
Maximum penalty: 5 penalty units.
(8) If an inspector seizes any records under this section, they may be
retained by the inspector until the completion of any proceedings
(including proceedings on appeal) in which they may be evidence but
only if the person from whom the records were seized is provided,
within a reasonable time after the seizure, with a copy of the records
certified by an inspector as a true copy.
(9) A copy of records provided under subsection (8) is, as evidence, of
equal validity to the records of which it is certified to be a copy.
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Osteopaths Bill 2001 Clause 128
Miscellaneous Part 11
128 Search warrants
(1) A person appointed under this Act as an inspector may apply to an
authorised justice for the issue of a search warrant for premises if the
inspector believes on reasonable grounds:
(a) that a provision of this Act or the regulations, or of section
10AC of the Public Health Act 1991, is being or has been
contravened on the premises, or
(b) that there is on the premises evidence of a contravention of a
provision of this Act or the regulations.
(2) A person appointed under this Act as an inspector must not apply for
a search warrant unless the person or the Director-General has caused
the President of the Board to be notified of the application.
(3) An authorised justice to whom such an application is made may, if
satisfied that there are reasonable grounds for doing so, issue a search
warrant authorising an inspector named in the warrant:
(a) to enter and inspect the premises, and
(b) to exercise on the premises any function of an inspector under
section 127.
(4) Part 3 of the Search Warrants Act 1985 applies to a search warrant
issued under this section.
(5) In this section, authorised justice has the same meaning as in the
Search Warrants Act 1985.
129 Liability of officers and members
No matter or thing done or omitted to be done by:
(a) the Board or a member of the Board, or
(b) the Registrar or any other officer of the Board, or
(c) the Committee or a member of the Committee, or
(d) an Impaired Registrants Panel or a member of an Impaired
Registrants Panel, or
(e) the Tribunal or a member of the Tribunal, or
(f) a nominal complainant,
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Clause 129 Osteopaths Bill 2001
Part 11 Miscellaneous
subjects the member, or the Registrar, or officer, or nominal
complainant, personally to any action, liability, claim or demand, if the
matter or thing was done or omitted to be done in the exercise, or
intended exercise, of any of his or her functions or done or omitted to
be done in good faith for the purpose of executing this or any other
Act.
130 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision
of this Act or the regulations, each person who is a director of the
corporation or who is concerned in the management of the corporation
is taken to have contravened the same provision if the person
knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision
pursuant to subsection (1) whether or not the corporation has been
proceeded against or has been convicted under the provision.
(3) Nothing in this section affects any liability imposed on a corporation
for an offence committed by the corporation against this Act or the
regulations.
131 Proceedings for offences
(1) Proceedings for an offence against this Act or the regulations are to be
dealt with summarily before a Local Court constituted by a Magistrate
sitting alone.
(2) Despite anything in any other Act, proceedings for an offence against
this Act or the regulations may be instituted within the period of 12
months after the act or omission alleged to constitute the offence.
132 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted
to be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect
to the following:
(a) the proceedings of the Board,
(b) any kinds of certificates of registration under this Act,
(c) the manner in which any notice under this Act may be served,
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Osteopaths Bill 2001 Clause 132
Miscellaneous Part 11
(d) the procedure to be followed at and any matters incidental to
the holding of an inquiry or appeal by the Committee or the
Tribunal, and matters relating to the custody and use of the seal
of the Tribunal,
(e) the procedure before an Impaired Registrants Panel,
(f) the establishment by the Board of standards for the conduct and
marking of examinations and the remuneration of examiners,
(g) the setting of fees by the Board in relation to examinations
conducted by it,
(h) the forms to be used for the purposes of this Act and the
regulations,
(i) the fees to be paid under this Act,
(j) the manner in which, and the extent to which, a registered
osteopath or other person may advertise osteopathy services,
(k) requiring an osteopath to disclose specified information to a
person to whom the osteopath provides osteopathy services,
including information disclosing any pecuniary interest of the
osteopath in any business or service provider to whom the
osteopath refers such a person,
(l) the inspection by or on behalf of the Board of osteopathy
practices,
(m) the making and keeping of records by registered osteopaths and
the obligations of osteopaths to allow release of, access to or
inspection of those records.
(3) A regulation may create an offence punishable by a penalty not
exceeding 10 penalty units.
133 Amendment of other Acts
Each Act specified in Schedule 6 is amended as set out in that
Schedule.
134 Savings and transitional provisions
Schedule 7 has effect.
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Osteopaths Bill 2001
Schedule 1 Registration procedures
Schedule 1 Registration procedures
(Section 11)
Part 1 Applying for registration
1 Form of application
An application for registration must be in a form approved by the
Board and must be lodged with the Registrar.
2 Application fee
(1) The application is to be accompanied by the fee determined by the
Minister in consultation with the Board.
(2) Different fees may be determined in respect of different types of
applications.
(3) The Board is entitled to refuse to determine an application until the fee
is paid.
(4) The Board may in a particular case waive the requirement for a fee or
reduce a fee.
3 Material to accompany application
The application is to be accompanied by such evidence and other
information as the Board requires.
4 Disclosure of convictions and charges
(1) The Board may require an applicant for registration to disclose:
(a) details of any offence for which the applicant has been
convicted or made the subject of a criminal finding in this State
or elsewhere (together with details of any penalty imposed for
the offence), other than an offence prescribed by the regulations
as not being relevant for the purposes of this clause, and
(b) details of any criminal proceedings pending against the
applicant in this State or elsewhere for a sex/violence offence.
(2) The Board may require a disclosure for the purposes of this clause to
be in the form of a statutory declaration.
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Registration procedures Schedule 1
(3) Any power of the Board to require disclosure of a conviction or
criminal finding for an offence or to have regard to the conviction of
or the making of a criminal finding in respect of an applicant for
registration for an offence extends to a conviction or criminal finding
for an offence committed before the commencement of this clause.
5 Time within which application to be determined
(1) For the purposes of an appeal under this Act, the Board is taken to
have determined that an applicant for registration is not entitled to be
registered and to have refused the application if the Board does not
consider and determine the application within 3 months after the
application is lodged with the Registrar.
(2) The Board and the applicant may agree on a longer period than 3
months for the purposes of this clause, in which case the agreed longer
period applies.
Part 2 Dealing with applications
6 Applications to be considered and determined
The Board is to consider and determine all applications for
registration. The Board determines an application by either registering
the applicant or refusing the application.
7 Notice to applicant of decision on application
(1) The Board is to give an applicant for registration notice of the Board's
decision on the application as soon as practicable after the decision is
made.
(2) If the decision is to grant registration, the Board is to issue to the
applicant a certificate of registration in a form approved by the Board
and stating such particulars as the Board determines.
8 How a person is registered
The Board registers a person by recording the person's name in the
Register together with such particulars as the Board considers
appropriate.
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Osteopaths Bill 2001
Schedule 1 Registration procedures
Part 3 Inquiries
9 Board may hold inquiry into eligibility
(1) The Board may hold an inquiry, in such cases as it considers
appropriate, into the eligibility of an applicant to be registered as an
osteopath.
(2) The inquiry may include an inquiry into the applicant's competence to
practise osteopathy.
10 Commission to be notified of inquiry
(1) The Board must give the Commission at least 7 days' notice in writing
before the Board holds an inquiry under this Part.
(2) The Commission may appear and be heard at an inquiry under this
Part.
11 Applicant to be notified of inquiry
The President is to fix a time and place for the holding of an inquiry
and is to cause the applicant concerned to be given at least 14 days'
notice in writing of the time and place for the inquiry.
12 Powers etc of the Board in an inquiry
For the purposes of an inquiry conducted by the Board under this Part,
the Board has the same functions that the Tribunal has under this Act.
However, proceedings on an inquiry conducted by the Board are not
to be open to the public.
13 Osteopath entitled to attend
(1) The person in relation to whom an inquiry is being held is entitled to
attend and to be accompanied by a legal practitioner or another adviser,
but is not entitled to be represented by a legal practitioner or other
adviser.
(2) This clause does not prevent the Board from proceeding with an
inquiry in the absence of the applicant so long as the applicant has
been given notice of the inquiry in accordance with clause 11.
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14 Provisions concerning witnesses etc
Schedule 5 applies to and in respect of a person or witness appearing
or evidence given at an inquiry in the same way as it applies to a
person or witness appearing or evidence given before the Tribunal.
15 Constitution of Board for inquiry
(1) If the Board decides to hold an inquiry, the Board is to appoint
3 persons to conduct the inquiry.
(2) The persons appointed to conduct the inquiry need not be members of
the Board.
(3) The persons appointed to conduct an inquiry are taken to be members
of the Board and to constitute the Board for the purposes of the inquiry
and, accordingly, may exercise the functions of the Board in relation
to the inquiry.
16 Director-General may intervene at inquiry
The Director-General may intervene in any inquiry before the Board
and is entitled to be heard personally or by being represented by an
officer of the Department of Health.
17 Preliminary medical examinations of applicants for registration
(1) Before or during an inquiry under this Part, the Board may require the
applicant for registration, by notice in writing given personally or by
post to the applicant, to undergo at the Board's expense a medical
examination by a registered medical practitioner specified in the notice,
at any reasonable time and place so specified.
(2) A failure by an applicant, without reasonable cause, to comply with
such a notice is, for the purposes of this Part (including any inquiry or
appeal under this Act) evidence that the applicant does not have
sufficient physical and mental capacity to practise osteopathy.
18 Decisions of the Board in an inquiry
A decision supported by at least 2 of the 3 persons appointed to
conduct an inquiry under this Part on an inquiry, or on any question
arising during an inquiry, is a decision of the Board.
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Schedule 1 Registration procedures
19 Details of decision to be supplied to applicant
(1) The Board must provide a written statement of a decision on an
inquiry to the person in relation to whom the inquiry was held and
must do so within one month after the decision is made.
(2) The statement of a decision must:
(a) give the reasons for the decision, and
(b) include information about any appeal rights the person has
under section 17.
(3) The Board may also provide the statement of a decision to such other
persons as the Board thinks fit.
20 Statement need not contain confidential information
(1) The Board is not required to include confidential information in the
statement of a decision. If a statement would be false or misleading if
it did not include the confidential information, the Board is not
required to provide the statement.
(2) When confidential information is not included in the statement of a
decision provided to a person or the statement is not provided to a
person because of subclause (1), the Board must give a confidential
information notice to the person.
(3) A confidential information notice is a notice that indicates that
confidential information is not included or that the statement will not
be provided (as appropriate) and gives the reasons for this. The notice
must be in writing and must be given within one month after the
decision is made.
(4) This clause does not affect the power of a court to make an order for
the discovery of documents or to require the giving of evidence or the
production of documents to a court.
(5) In this clause:
confidential information means information that:
(a) has not previously been published or made available to the
public when a written statement of a decision to which it is or
may be relevant is being prepared, and
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Osteopaths Bill 2001
Registration procedures Schedule 1
(b) relates to the personal or business affairs of a person, other than
a person to whom the Board is required (or would, but for
subclause (1), be required) to provide a written statement of a
decision, and
(c) is information:
(i) that was supplied in confidence, or
(ii) the publication of which would reveal a trade secret, or
(iii) that was provided in compliance with a duty imposed
by an enactment, or
(iv) the provision of which by the Board would be in breach
of any enactment.
Part 4 Keeping and alteration of the Register
21 Board is to keep the Register
(1) The Board is to keep a register, called the Register of Osteopaths for
New South Wales.
(2) The Register is to be kept in such form as the Board determines.
(3) The Register must be available for inspection by any person:
(a) in person at the office of the Board at all reasonable times, and
(b) by such other means (such as Internet access) and at such other
times as the Board determines.
(4) The Board may charge a fee for an inspection of the Register, not
exceeding such amount as may be prescribed by the regulations.
(5) The Board may carry out searches of the Register on a person's behalf
and may charge such fee as it determines for the search.
22 Information to be recorded in Register
(1) The Board is to record in the Register such particulars of the
registration of each registered osteopath as the Board considers
appropriate, subject to the regulations. The regulations may make
provision for or with respect to the information to be recorded in the
Register.
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Schedule 1 Registration procedures
(2) Any conditions to which an osteopath's registration is subject must be
recorded in the Register.
(3) The Board may, on application by a registered osteopath and payment
of the prescribed fee, record in the Register any particulars in addition
to those required to be recorded in the Register, as the Board approves.
(4) The Board must make such other recordings in the Register as may be
necessary for the purpose of maintaining the Register as an accurate
record of the particulars relating to each registered osteopath.
23 Method of removal from the Register
(1) The name of a registered osteopath is removed from the Register by
the making in the Register of such recording as the Board directs.
(2) The Board must cause a person to be given notice that the person's
name has been removed from the Register unless the person's name
was removed in accordance with an order of the Chairperson, a
Deputy Chairperson, the Tribunal or the Supreme Court under this
Act.
24 Surrender of certificates
(1) The Board may by notice require a person who has ceased to be
registered to furnish to the Board within a time specified in the notice
a certificate issued to the person under this Act in respect of that
registration.
(2) A person on whom such a notice has been served must not, without
reasonable cause, fail to comply with the requirements of the notice.
Maximum penalty: 10 penalty units.
25 Making a recording in the Register--extended meaning
A reference in this Act to the making of a recording in the Register
includes a reference to amending, cancelling or deleting a recording in
the Register.
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Part 5 Annual registration fees
26 Annual registration fee payable
(1) A registered osteopath must, on or before a date notified by the Board
in writing to the osteopath at least 1 month in advance, pay to the
Board the annual registration fee determined by the Minister in
consultation with the Board.
(2) Different fees may be determined for the purposes of this clause in
respect of different classes of registration.
(3) A different fee may be determined in respect of registered osteopaths
who were registered as chiropractors and osteopaths under the
Chiropractors and Osteopaths Act 1991 immediately before its repeal
and who are also registered chiropractors under the Chiropractors Act
2001.
27 Osteopath's name may be removed from Register for non-payment
(1) The Board is to notify a registered osteopath who does not pay the
annual registration fee on or before the due date that if the fee is not
paid on or before a later date specified in the notification the
osteopath's name will be removed from the Register.
(2) The Board may cause to be removed from the Register the name of
any registered osteopath who has been so notified and fails to pay the
fee on or before that later date.
28 Entitlement to re-registration if fee paid
(1) A person whose name has been removed from the Register for failure
to pay the annual registration fee is entitled to re-registration if the
person pays to the Board any unpaid annual registration fee or fees
together with any applicable late payment fee.
(2) A late payment fee is applicable when more than 3 months have
elapsed since the person's name was removed from the Register. The
late payment fee is such amount as the Board determines.
(3) The Board may waive payment of a late payment fee in a particular
case if the Board thinks it appropriate to do so.
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(4) The entitlement to re-registration is an entitlement to registration on
the same terms and subject to the same conditions (if any) as applied
to the person's registration immediately before the removal of his or
her name from the Register.
(5) The Board may refuse to register a person under this clause if the
Board is of the opinion, following an inquiry under Part 3 of this
Schedule, that the person is not competent to practise osteopathy or is
not of good character.
(6) A person registered pursuant to an entitlement to re-registration under
this clause is taken to have been so registered on and from the day the
person's name was removed from the Register or on and from such
later day as the Board determines and notifies to the person.
(7) An entitlement to re-registration under this clause does not override
any other provision of this Act pursuant to which a person's name is
authorised or required to be removed from the Register.
29 Board may waive registration fee
The Board may, for such reason as it considers proper, waive the
requirement that an annual registration fee be paid by a registered
osteopath in any particular year.
Part 6 Removal from and alteration of Register
30 Removal of person wrongfully registered
(1) The Board may remove the name of any person from the Register who
has been registered by reason of any false or fraudulent representation
or declaration or by reason of a mistake.
(2) A person whose name has been removed from the Register under this
clause may appeal to the Tribunal against the Board's decision.
(3) An appeal must be made within 28 days (or such longer period as the
Chairperson may allow in a particular case) after notice of the decision
is given to the person. The appeal is to be lodged with the Registrar
who is to refer it to the Tribunal.
(4) An appeal does not affect the decision with respect to which it is made
until the appeal is determined.
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(5) When it determines an appeal, the Tribunal may dismiss the appeal or
order that the decision of the Board be revoked and replaced by a
different decision made by the Tribunal and specified in the order. The
Tribunal may also make such ancillary orders as it thinks proper.
(6) The Tribunal's decision is taken to be a decision of the Board (but this
does not confer a right of appeal under this section in respect of the
Tribunal's decision).
31 Removal on death or at own request
The Board must remove the name of a registered osteopath from the
Register if the osteopath has died or has requested the Board to
remove his or her name.
32 Removal or amendment pursuant to disciplinary order
(1) The Board must remove the name of a person from the Register if
removal of the person's name is required by any order under this Act
of the Chairperson, a Deputy Chairperson, the Tribunal or the
Supreme Court.
(2) The Board is to make such recordings in the Register as may be
necessary to give effect to any order under this Act of the Board, the
Chairperson, a Deputy Chairperson, the Tribunal or the Supreme Court
as to the conditions to be imposed on a person's registration.
33 Osteopath to be notified of action
The Board must give the osteopath concerned notice of action taken
by the Board under this Part.
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Osteopaths Bill 2001
Schedule 2 Provisions relating to the members of the Board
Schedule 2 Provisions relating to the members of the
Board
(Section 91)
1 President and Deputy President of the Board
(1) Of the members of the Board:
(a) one who is a registered osteopath is to be appointed as
President of the Board, and
(b) one is to be appointed as Deputy President of the Board.
(2) Those appointments may be made in and by the instrument of
appointment of the relevant member as member or by another
instrument executed by the Governor.
(3) The Governor may remove a member from the office of President or
Deputy President.
(4) A person who is the President or Deputy President vacates office as
President or Deputy President if the person:
(a) is removed from that office by the Governor, or
(b) resigns that office by instrument in writing addressed to the
Minister, or
(c) ceases to be a member.
2 Acting members and acting President
(1) The Governor may, from time to time, appoint a person to act in the
office of a member during the illness or absence of the member, and
the person, while so acting, has all the functions of the member and is
taken to be the member.
(2) The Deputy President of the Board may act in the office of President
during the illness or absence of the President, and while so acting has
all the functions of the President and is taken to be the President.
(3) The Governor may, from time to time, appoint a member to act in the
office of President during the illness or absence of both the President
and Deputy President, and the member, while so acting, has all the
functions of the President and is taken to be the President.
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(4) The Governor may remove any person from any office to which the
person was appointed under this clause.
(5) A person while acting in the office of a member is entitled to be paid
such remuneration (including travelling and subsistence allowances)
as the Minister may from time to time determine in respect of the
person.
(6) For the purposes of this clause, a vacancy in the office of a member,
the President or the Deputy President is taken to be an absence from
office of the member, President or Deputy President.
3 Terms of office
(1) Subject to this Schedule, a member holds office for such period (not
exceeding 4 years) as may be specified in the member's instrument of
appointment, but is eligible (if otherwise qualified) for
re-appointment.
(2) A person may not be appointed to serve more than 3 consecutive
terms of office as a member of the Board.
4 Remuneration
A member is entitled to be paid such remuneration (including
travelling and subsistence allowances) as the Minister may from time
to time determine in respect of the member.
5 Vacancy in office of member
(1) The office of a member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the
Minister, or
(d) is removed from office by the Governor under this clause or
under Part 8 of the Public Sector Management Act 1988, or
(e) is absent from 4 consecutive meetings of the Board of which
reasonable notice has been given to the member, except on
leave granted by the Minister or unless, before the expiration of
4 weeks after the last of those meetings, the member is excused
by the Minister for being absent from those meetings, or
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Schedule 2 Provisions relating to the members of the Board
(f) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her
remuneration for their benefit, or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or is
convicted elsewhere than in New South Wales of an offence
that, if committed in New South Wales, would be an offence so
punishable.
(2) The Governor may remove a member from office at any time.
(3) Without affecting the generality of subclause (2), the Governor may
remove from office a member who contravenes the provisions of
clause 7.
6 Filling of vacancy in office of member
If the office of any member becomes vacant, a person is, subject to this
Act, to be appointed to fill the vacancy.
7 Disclosure of pecuniary interests
(1) If:
(a) a member has a direct or indirect pecuniary interest in a matter
being considered or about to be considered at a meeting of the
Board, and
(b) the interest appears to raise a conflict with the proper
performance of the member's duties in relation to the
consideration of the matter,
the member must as soon as possible after the relevant facts have
come to the member's knowledge, disclose the nature of the interest at
a meeting of the Board.
(2) A disclosure by a member at a meeting of the Board that the member:
(a) is a member, or is in the employment, of a specified company
or other body, or
(b) is a partner, or is in the employment, of a specified person, or
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Provisions relating to the members of the Board Schedule 2
(c) has some other specified interest relating to a specified
company or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter
relating to that company or other body or to that person which may
arise after the date of the disclosure and which is required to be
disclosed under this clause.
(3) Particulars of any disclosure made under this clause are to be recorded
by the Board in a book kept for the purpose and that book is to be
open at all reasonable hours to inspection by any person on payment
of the fee determined by the Board.
(4) After a member has disclosed the nature of an interest in any matter,
the member must not, unless the Minister or the Board otherwise
determines:
(a) be present during any deliberation of the Board with respect to
the matter, or
(b) take part in any decision of the Board with respect to the
matter.
(5) For the purposes of the making of a determination by the Board under
subclause (4), a member who has a direct or indirect pecuniary interest
in a matter to which the disclosure relates must not:
(a) be present during any deliberation of the Board for the purpose
of making the determination, or
(b) take part in the making by the Board of the determination.
(6) A contravention of this clause does not invalidate any decision of the
Board.
(7) This clause does not apply to or in respect of an interest of a member
in a matter that arises merely because the member is an osteopath.
(8) A reference in this clause to a meeting of the Board includes a
reference to a meeting of a committee of the Board.
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Schedule 2 Provisions relating to the members of the Board
8 Effect of certain other Acts
(1) Part 2 of the Public Sector Management Act 1988 does not apply to or
in respect of the appointment of a member.
(2) If by or under any other Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office,
or
(b) prohibiting the person from engaging in employment outside
the duties of that office,
that provision does not operate to disqualify the person from holding
that office and also the office of a member or from accepting and
retaining any remuneration payable to the person under this Act as a
member.
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Osteopaths Bill 2001
Provisions relating to the procedure of the Board Schedule 3
Schedule 3 Provisions relating to the procedure of the
Board
(Section 91)
1 First meeting of Board
The Minister may call the first meeting of the Board in such manner
as the Minister thinks fit.
2 General procedure
The procedure for the calling of meetings of the Board and for the
conduct of business at those meetings is, subject to this Act and the
regulations, to be as determined by the Board.
3 Quorum
The quorum for a meeting of the Board is 4 members.
4 Presiding member
(1) The President or, in the absence of the President, the Deputy President
or, in the absence of both of them, another member of the Board
elected to chair the meeting by the members present, is to preside at a
meeting of the Board.
(2) The person presiding at any meeting of the Board has a deliberative
vote and, in the event of an equality of votes, has a second or casting
vote.
5 Voting
A decision supported by a majority of the votes cast at a meeting of the
Board at which a quorum is present is the decision of the Board.
6 Minutes
The Board must cause full and accurate minutes to be kept of the
proceedings of each meeting of the Board.
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Schedule 3 Provisions relating to the procedure of the Board
7 Proof of certain matters not required
In any legal proceedings, proof is not required (until evidence is given
to the contrary) of:
(a) the constitution of the Board, or
(b) any resolution of the Board, or
(c) the appointment of, or the holding of office by, any member of
the Board, or
(d) the presence of a quorum at any meeting of the Board.
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Provisions relating to the Committee Schedule 4
Schedule 4 Provisions relating to the Committee
(Section 95)
Part 1 The Members
1 Chairperson of the Committee
The member referred to in section 94 (2) (a) is to be the Chairperson
of the Committee.
2 Term of office
Subject to this Schedule, a member of the Committee holds office for
such period, not exceeding 4 years, as may be specified in the
instrument of appointment of the member, but is eligible (if otherwise
qualified) for re-appointment.
3 Remuneration
A member of the Committee is entitled to be paid such remuneration
(including travelling and subsistence allowances) as the Minister may
from time to time determine in respect of the member.
4 Filling of vacancy in office of member
If the office of any member of the Committee becomes vacant, a
person is, subject to this Act, to be appointed to fill the vacancy.
5 Casual vacancies
(1) A member of the Committee is to be taken to have vacated office if
the member:
(a) dies, or
(b) absents himself or herself from 4 consecutive meetings of the
Committee of which reasonable notice has been given to the
member personally or in the ordinary course of post, except on
leave granted by the Minister or unless, before the expiration of
4 weeks after the last of those meetings, the member is excused
by the Minister for being absent from those meetings, or
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Schedule 4 Provisions relating to the Committee
(c) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her
remuneration for their benefit, or
(d) becomes a mentally incapacitated person, or
(e) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or is
convicted elsewhere than in New South Wales of an offence
that, if committed in New South Wales, would be an offence so
punishable, or
(f) resigns the office by instrument in writing addressed to the
Minister, or
(g) is removed from office by the Minister under subclause (3).
(2) Without limiting the generality of subclause (1), a member who is
appointed under section 94 (2) (a) or (b) and who ceases to be a
registered osteopath is to be taken to have vacated office.
(3) The Minister may remove a member from office.
Part 2 Procedure of the Committee
6 General procedure
The procedure for the calling of meetings of the Committee and for the
conduct of business at those meetings is, subject to this Act, to be as
determined by the Committee.
7 Quorum
The quorum for a meeting of the Committee is 3 members.
8 Voting
A decision supported by a majority of the votes cast at a meeting of the
Committee at which a quorum is present is the decision of the
Committee.
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Provisions relating to the Committee Schedule 4
9 Presiding member
(1) The Chairperson of the Committee or, in the absence of the
Chairperson, another member of the Committee elected to chair the
meeting by the members present, is to preside at a meeting of the
Committee.
(2) The person presiding at any meeting of the Committee has a
deliberative vote and, in the event of an equality of votes, has a second
or casting vote.
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Osteopaths Bill 2001
Schedule 5 Proceedings before the Tribunal
Schedule 5 Proceedings before the Tribunal
(Section 111)
1 Proceedings generally
In proceedings before it, the Tribunal is not bound to observe the rules
of law governing the admission of evidence, but may inform itself of
any matter in such manner as it thinks fit.
2 Power to summon witnesses and take evidence
(1) The Chairperson or Deputy Chairperson may summon a person to
appear in proceedings before the Tribunal, to give evidence and to
produce such documents (if any) as are referred to in the summons.
(2) The person presiding at the proceedings may require a person
appearing in the proceedings to produce a document.
(3) The Tribunal may, in proceedings before it, take evidence on oath or
affirmation and, for that purpose a member of the Tribunal:
(a) may require a person appearing in the proceedings to give
evidence either to take an oath or to make an affirmation in a
form approved by the person presiding, and
(b) may administer an oath to or take an affirmation from a person
so appearing in the proceedings.
(4) A person served with a summons to appear in any such proceedings
and to give evidence must not, without reasonable excuse:
(a) fail to attend as required by the summons, or
(b) fail to attend from day to day unless excused, or released from
further attendance, by a member of the Tribunal.
(5) A person appearing in proceedings to give evidence must not, without
reasonable excuse:
(a) when required to be sworn or to affirm--fail to comply with
the requirement, or
(b) fail to answer a question that the person is required to answer
by the person presiding, or
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(c) fail to produce a document that the person is required to
produce by this clause.
Maximum penalty: 20 penalty units.
3 Power to obtain documents
(1) A member of the Tribunal may, by notice in writing served on a
person, require the person:
(a) to attend, at a time and place specified in the notice, before a
person specified in the notice, being a member of the Tribunal
or a person authorised by the Tribunal in that behalf, and
(b) to produce, at that time and place, to the person so specified a
document specified in the notice.
(2) A person who fails, without reasonable excuse, to comply with a
notice served on the person under this clause is guilty of an offence.
Maximum penalty: 20 penalty units.
4 Evidence of other proceedings
The Tribunal may receive and admit on production, as evidence in any
proceedings, such of the following as the Tribunal considers relevant
to the proceedings:
(a) the judgment and findings of any court (whether civil or
criminal and whether or not of New South Wales) or tribunal,
(b) the verdict or findings of a jury of any such court,
(c) a certificate of the conviction of or the making of a criminal
finding in respect of any person,
(d) a transcript of the depositions or of shorthand notes, duly
certified by the Registrar or clerk of the court or tribunal as
correct, of the evidence of witnesses taken in any such court or
tribunal.
5 Additional complaints
(1) The Tribunal may in proceedings before it deal with one or more
complaints about a registered osteopath.
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Schedule 5 Proceedings before the Tribunal
(2) If, during any such proceedings, it appears to the Tribunal that, having
regard to any matters that have arisen, another complaint could have
been made against the osteopath concerned:
(a) whether instead of or in addition to the complaint that was
made, and
(b) whether or not by the same complainant,
the Tribunal may take that other complaint to have been referred to it
and may deal with it in the same proceedings.
(3) If another complaint is taken to have been referred to the Tribunal
under subclause (2), the complaint may be dealt with after such an
adjournment (if any) as is, in the opinion of the Tribunal, just and
equitable in the circumstances.
6 Release of information
(1) The person presiding in proceedings before the Tribunal may, if the
person presiding thinks it appropriate in the particular circumstances
of the case (and whether or not on the request of a complainant, the
osteopath concerned or any other person):
(a) direct that the name of any witness is not to be disclosed in the
proceedings, or
(b) direct that all or any of the following matters are not to be
published:
(i) the name and address of any witness,
(ii) the name and address of a complainant,
(iii) the name and address of an osteopath,
(iv) any specified evidence,
(v) the subject-matter of a complaint.
(2) A direction may be amended or revoked at any time by the person
presiding.
(3) A direction may be given before or during proceedings, but must not
be given before the proceedings unless notice is given of the time and
place appointed by the person presiding for consideration of the matter
to:
(a) a person who requested the direction, and
(b) the complainant or the osteopath concerned, as appropriate, and
(c) such other persons as the person presiding thinks fit.
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(4) A person who contravenes a direction given under this clause is guilty
of an offence.
Maximum penalty: 150 penalty units in the case of a body corporate
and 20 penalty units in any other case.
7 Authentication of documents by the Tribunal
Every document requiring authentication by the Tribunal may be
sufficiently authenticated without the seal of the Tribunal, if signed by
the Chairperson or by a member of the Tribunal authorised to do so by
the Chairperson.
8 Nominal complainant
(1) In any proceedings before the Tribunal, a person appointed by the
Commission:
(a) may act as nominal complainant in place of the actual
complainant, and
(b) when so acting, is, for the purposes of this Act and the
regulations, to be taken to be the person who made the
complaint.
(2) A reference in this Act to a complainant includes a reference to a
nominal complainant.
9 Intervention by Director-General and Commission
(1) Without limiting the operation of clause 8, the Director-General
personally (or an officer of the Department of Health appointed by the
Director-General) or a person appointed by the Commission may
intervene, and has a right to be heard, in any proceedings before the
Tribunal.
(2) The Director-General and the Commission may be represented by a
legal practitioner.
10 Expedition of inquiries and appeals
(1) It is the duty of the Tribunal to hear inquiries and appeals under this
Act and to determine those inquiries and appeals expeditiously.
(2) Without affecting the generality of subclause (1), the Tribunal may
postpone or adjourn proceedings before it as it thinks fit.
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Schedule 5 Proceedings before the Tribunal
11 Evidentiary certificate
A certificate, purporting to have been signed by the Registrar, to the
effect that:
(a) a person specified in the certificate was or was not a registered
osteopath at a time or during a period so specified, or
(b) the name of a person specified in the certificate was removed
from the Register at a time so specified, or
(c) the registration of a person specified in the certificate was
suspended from a time so specified and for a period so
specified, or
(d) a condition, particulars of which are set out in the certificate,
was, at a time or during a period so specified, imposed on the
registration of a person so specified or revoked or not in force,
is, without proof of the signature of the person by whom the certificate
purports to have been signed, to be received by the Tribunal and all
courts as evidence of that fact.
12 Certain complaints may not be heard
(1) The Tribunal may decide not to conduct an inquiry, or at any time to
terminate an inquiry or appeal, if:
(a) a complainant fails to comply with a requirement made of the
complainant by the Tribunal, or
(b) the person about whom the complaint is made ceases to be a
registered osteopath.
(2) The Tribunal must not conduct or continue any inquiry or any appeal
if the osteopath concerned dies.
13 Tribunal can award costs
(1) The Tribunal may order the complainant, if any, the registered
osteopath concerned, or any other person entitled to appear (whether
as of right or because leave to appear has been granted) at any inquiry
or appeal before the Tribunal to pay such costs to such person as the
Tribunal may determine.
(2) When an order for costs has taken effect, the Tribunal is, on
application by the person to whom the costs have been awarded, to
issue a certificate setting out the terms of the order and stating that the
order has taken effect.
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Proceedings before the Tribunal Schedule 5
(3) The person in whose favour costs are awarded may file the certificate
in the District Court, together with an affidavit by the person as to the
amount of the costs unpaid, and the Registrar of the District Court is
to enter judgment for the amount unpaid together with any fees paid
for filing the certificate.
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Schedule 6 Amendment of other Acts
Schedule 6 Amendment of other Acts
(Section 133)
6.1 Health Administration Act 1982 No 135
Schedule 2A Health professional boards
Insert in alphabetical order:
* Osteopaths Registration Board established under the
Osteopaths Act 2001
6.2 Health Care Complaints Act 1993 No 105
Section 4 Definitions
Insert in alphabetical order in the definition of health registration Act:
Osteopaths Act 2001
6.3 Interpretation Act 1987 No 15
Section 21 Meaning of commonly used words and expressions
Insert in alphabetical order in section 21 (1):
registered osteopath and each of the following expressions
means an osteopath registered under the Osteopaths Act 2001:
(a) osteopath,
(b) legally (or duly) qualified osteopath,
(c) qualified osteopath.
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Osteopaths Bill 2001
Amendment of other Acts Schedule 6
6.4 Public Finance and Audit Act 1983 No 152
Schedule 2 Statutory bodies
Insert in alphabetical order "Osteopaths Registration Board".
6.5 Search Warrants Act 1985 No 37
Section 10 Definitions
Insert in the definition of search warrant in alphabetical order of Acts:
section 128 of the Osteopaths Act 2001,
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Osteopaths Bill 2001
Schedule 7 Savings and transitional provisions
Schedule 7 Savings and transitional provisions
(Section 134)
Part 1 Preliminary
1 Definitions
In this Schedule:
new Board means the Osteopaths Registration Board constituted by
this Act.
old Board means the Chiropractors and Osteopaths Registration Board
constituted by the 1991 Act.
the 1991 Act means the Chiropractors and Osteopaths Act 1991.
2 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Such a provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later day.
(3) To the extent to which such a provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of that publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of that publication.
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Savings and transitional provisions Schedule 7
Part 2 Provisions consequent on enactment of this Act
3 Members of old Board
(1) A person who, immediately before the repeal of the 1991 Act, held
office as a member of the old Board:
(a) ceases to hold office as such on that repeal, and
(b) is eligible (if otherwise qualified) to be appointed as a member
of the new Board.
(2) A person who ceases to hold office as a member of the old Board
because of the operation of this Act is not entitled to be paid any
remuneration or compensation because of ceasing to hold that office.
4 Continuity of Board
Unless the Regulations otherwise provide, anything done by or in
relation to the old Board and having effect immediately before the
dissolution of the old Board is taken to have been done by or in
relation to the new Board.
5 Appointments and other action before commencement
For the purpose only of enabling the new Board to be constituted in
accordance with this Act on or after (but not before) the
commencement of section 85 (Constitution of the Board),
appointments may be made under this Act, and anything else may be
done, before that commencement, as if the whole of this Act
commenced on the date of assent, but so that no appointment as a
member of the new Board as so constituted takes effect before the
commencement of section 85.
6 The Register
As soon as practicable after the commencement of this clause, the new
Board is to compile the Register from the relevant information and
particulars entered in the register kept under section 17 of the 1991 Act
in respect of persons registered as osteopaths or as chiropractors and
osteopaths immediately before that commencement.
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7 Registration as osteopath
(1) A person who is a registered osteopath under the 1991 Act
immediately before the commencement of this clause is on that
commencement taken to be registered under this Act. Registration
under this Act is subject to the same conditions (if any) as the person's
registration under the 1991 Act was subject immediately before that
commencement.
(2) A certificate of provisional registration as an osteopath in force under
the 1991 Act immediately before the commencement of this clause is
taken, on that commencement, to have been granted under this Act.
(3) A certificate of temporary registration as an osteopath in force under
the 1991 Act immediately before the commencement of this clause is
taken, on that commencement, to have been granted under this Act.
8 Fees
A fee paid or which remains unpaid under a provision of the 1991 Act
immediately before its repeal is taken, on commencement of the
relevant provision of this Act, to have been paid or to remain unpaid
under the provision of this Act that corresponds to that provision and
is taken to have been so paid or to so remain unpaid for or in relation
to the same period as that which applied to the fee under the 1991 Act.
9 Applications for registration
An application for registration as an osteopath or a chiropractor and
osteopath under the 1991 Act which had not been determined by the
old Board before the repeal of that Act is taken to be an application for
registration under this Act.
10 Appeals to the Supreme Court
(1) An appeal to the Supreme Court under section 52 of the 1991 Act
relating to a registered osteopath that was pending immediately before
the repeal of that Act is to be continued and disposed of as if, except
as provided by subclause (2), this Act had not been enacted.
(2) The decision of the Court on any such appeal is final, and binding on
the new Board and the appellant and for the purposes of this Act is
taken to be the final decision of the new Board.
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11 Complaints
(1) A complaint made to the old Board concerning the conduct of a
registered osteopath under the 1991 Act and pending immediately
before the repeal of that Act is, to the extent that the conduct
concerned could be the subject of a complaint under this Act, to be
dealt with as a complaint under this Act, except as provided by this
clause.
(2) If a complaint pending under the 1991 Act on the commencement of
this clause is the subject of an inquiry by a Professional Standards
Committee or an inquiry by or appeal before the Chiropractors and
Osteopaths Tribunal under that Act immediately before that
commencement:
(a) the complaint or appeal is to continue to be dealt with and
determined under the 1991 Act as if the 1991 Act had not been
repealed, and
(b) any finding, order, direction, decision or determination arising
from or in connection with the determination of the complaint
or appeal under the 1991 Act has effect for the purposes of the
corresponding provision of this Act, and
(c) the 1991 Act continues to apply as if it had not been repealed
for the purposes of any appeal against any such order,
direction, decision or determination.
(3) This clause applies for the purposes of this Act and for the purposes of
the Health Care Complaints Act 1993 (including any conciliation
under that Act) in its application to any complaint or investigation
pending under the 1991 Act immediately before the repeal of the 1991
Act.
12 Complaints relating to previous conduct
A complaint or investigation may be made under this Act with respect
to conduct or any other matter or thing that occurred before, or partly
before and partly after, the commencement of the provisions of this
Act under which the complaint or investigation is made.
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13 Continuity of disciplinary action under 1991 Act
Any finding, order, direction, decision or determination under Part 5
(Complaints and disciplinary proceedings) of the 1991 Act is, to the
extent that it had any operation immediately before the
commencement of this clause, taken to have been made under the
corresponding provision of this Act and is to be given effect to
accordingly.
14 Construction of certain references
Unless the regulations otherwise provide, on and from the
commencement of this clause, a reference in any other Act, in any
instrument made under any Act or in any other instrument of any kind:
(a) to the old Board is to be read as a reference to the new Board,
and
(b) to the registrar under the 1991 Act is to be read as a reference
to the Registrar under this Act, and
(c) to the register referred to in section 17 of the 1991 Act is to be
read as a reference to the Register under this Act, and
(d) to the registration of a person as a registered osteopath under
the 1991 Act is to be read as a reference to the registration of
the person as an osteopath under this Act.
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