91 Recommendations to have regard to available resources
A recommendation made by the Commission in relation to a matter investigated under this Act must be made in such a way that to give effect to it:(a) would not be beyond the resources appropriated by Parliament for the delivery of health services, or(b) would not be inconsistent with the way in which those resources have been allocated by the Minister and the Director-General in accordance with government policy.
92 General standards of clinical practice
Nothing in this Act gives the Commission power to determine or recommend general standards of clinical practice.Note. While sections 91 and 92 limit the scope of a recommendation that the Commission may make, they do not limit other comment by the Commission.
92A Expedition of certain matters
The Commission is to assess, investigate and, if appropriate, prosecute as quickly as practicable matters referred to it following action under section 149C of the Health Practitioner Regulation National Law (NSW) by a professional council.
93 Inconsistency between this Act and the Health Practitioner Regulation National Law (NSW)
This Act prevails over the Health Practitioner Regulation National Law (NSW) to the extent of any inconsistency between them.
94 Consultation between Commission and Director-General
(1) The Director-General must, if requested to do so by the Commission, consult with the Commission with respect to matters arising under the administration of this Act.(2) The Commission must, if requested to do so by the Director-General, consult with the Director-General with respect to matters arising under the administration of this Act.
94A Warnings about unsafe treatments or services
(1) If following an investigation, the Commission is of the view that a particular treatment or health service poses a risk to public health or safety, the Commission may cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the treatment or health service.(2) The Commission may revoke or revise a statement under subsection (1).
94B Tribunal decisions and names of de-registered practitioners to be publicly available
(1) The Commission:(a) must make publicly available a statement of a decision of a tribunal if the statement is provided to it under the Health Practitioner Regulation National Law (NSW) and is in respect of a complaint that has been proved or admitted in whole or in part, and(b) (Repealed)(c) may disseminate any other statement of a decision provided to it under the Health Practitioner Regulation National Law as the Commission thinks fit,unless the relevant tribunal, professional council or registration authority has ordered otherwise.(2) The Commission is to make publicly available information required to be provided to it under the Health Practitioner Regulation National Law about a person whose registration as a health practitioner under that Law is cancelled or suspended as a result of disciplinary proceedings.(3) For the purposes of this section, a person’s registration as a health practitioner under the Health Practitioner Regulation National Law is cancelled if any of the following happen as a result of an action, decision, determination or order of a professional council, registration authority, tribunal or court under that Law:(a) the person’s registration is cancelled,(b) the person is de-registered,(c) the person’s name is removed from, or struck off, a register or a roll,(d) the person’s practising certificate is cancelled.
94C Protection from liability for certain publications
(1) A publication in good faith under section 41A, 41B, 94A or 94B does not subject a protected person to any liability (including liability in defamation).(2) In this section:protected person means:
(a) the Commission or the Administrative Decisions Tribunal or a member of the Commission or Tribunal, or(b) a professional council, assessment committee or tribunal established under the Health Practitioner Regulation National Law (NSW) or a member of any such council, committee or tribunal, or(c) the proprietor, editor or publisher of a newspaper, or(d) the proprietor or broadcaster of a radio or television station or the producer of a radio or television show, or(e) an internet service provider or internet content host, or(f) a member of staff of or a person acting at the direction of any person or entity referred to in this definition, or(g) any person, or person belonging to a class of persons, prescribed by the regulations for the purposes of this section.
(1) The Commission must include in its annual report for a year:(a) in relation to complaints generally:• the number and type of complaints made to it during the year• the sources of those complaints• the number and type of complaints assessed by the Commission during the year• the number and type of complaints referred for conciliation during the year• the results of conciliations• the number and type of complaints investigated by the Commission during the year• the results of investigations• a summary of the results of prosecutions completed during the year arising from complaints• the number and details of complaints not finally dealt with at the end of the year• the time intervals involved in the complaints process, and(b) the number and type of complaints referred to the Director-General during the year and the outcomes of those complaints, as far as they are known.(2) The Commission may include in its annual report for a year:(a) such information relating to complaints (other than that required to be included under subsection (1)) as the Commission thinks fit, and(b) any report made to the Minister under section 44 (2), and(c) any notification and request made to the Director-General under section 60.(3) Matters included in the annual report:(a) are to be reported, as far as practicable, according to professional groupings, and(b) must not identify individual clients or persons against whom complaints have been made or who have been subject to investigation under this Act, unless their names or identities have already lawfully been made public.
(1) A matter or thing done or omitted by a person, being the Commissioner, an officer of the Commission, the Registrar or a conciliator does not, if the matter or thing was done or omitted in good faith for the purpose of executing this Act, subject the person personally to any action, liability, claim or demand.(2) The making of a complaint, or the reporting of any matter or thing that could give rise to a complaint, to the Commission or a professional council by any person does not, if it was done in good faith, subject the person personally to any action, liability, claim or demand.
97 Pending legal proceedings do not prevent exercise of certain functions
The Commission, the Commissioner, the Registrar and a conciliator are not prevented from exercising any function concerning a matter merely because legal proceedings relating to the matter have been commenced.
98 Offence: intimidation or bribery of complainants
(1) A person who, by threat, intimidation or inducement, persuades or attempts to persuade another person:(a) not to make a complaint to the Commission or a professional council or not to continue with a complaint made to the Commission or a professional council, or(b) not to have discussions with, or take part in proceedings before, the Commission or a professional council concerning a complaint or a matter that could become the subject of a complaint,is guilty of an offence.(2) A person who refuses to employ or dismisses another person, subjects another person to any detriment, or harasses another person, because the other person:(a) intends to make a complaint, has made a complaint, or has had a complaint made on his or her behalf or otherwise concerning him or her, to the Commission or a professional council, or(b) intends to take part, is taking part, or has taken part in any discussions with, or proceedings before, the Commission or a professional council concerning a complaint or a matter which could become the subject of a complaint,is guilty of an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months.
99 Offence: furnishing false or misleading information to the Commission
A person who furnishes the Commission with information for the purposes of this Act knowing that it is false or misleading in a material particular is guilty of an offence.Maximum penalty: 20 penalty units.
99A Offence: improper disclosure of information
(1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made:(a) with the consent of the person to whom the information relates, or(b) in connection with the execution and administration of this Act, or(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or(d) with other lawful excuse,the person is guilty of an offence.Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.
(2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act.(3) Subsection (2) does not apply to the following proceedings:(a) proceedings under the Royal Commissions Act 1923,(b) proceedings before the Independent Commission Against Corruption,(c) proceedings under Part 3 of the Special Commissions of Inquiry Act 1983,(d) an inquiry under the Ombudsman Act 1974.
99B Disclosure of information to certain persons or bodies
(1) The Commission or a member of staff of the Commission may, at the Commission’s discretion, disclose information obtained in exercising a function under this Act to any of the following:(a) the Minister,(b) any court, tribunal or other person acting judicially,(c) any person or body regulating health service providers in Australia,(d) any officer of, or Australian legal practitioner instructed by, any of the following:(i) any authority regulating health service providers in Australia,(ii) the Commonwealth or a State or Territory,(iii) an authority of the Commonwealth or of a State or Territory,(e) any investigative or prosecuting authority established by or under legislation,(f) a police officer if the Commission suspects on reasonable grounds that the information relates to an offence that may have been committed,(g) an investigator carrying out an investigation, examination or audit in relation to a health service provider,(h) a health service provider that is the subject of an investigation under this Act,(i) a client of a health service provider that has been the subject of an investigation under this Act, but only to the extent the information relates to that client.(2) The Commission may exercise its discretion under subsection (1) to disclose, or authorise a member of the Commission’s staff to disclose, information only if:(a) the Commission considers the public interest in disclosing the information outweighs the public interest in protecting the confidentiality of the information and the privacy of any person to whom the information relates, and(b) the Commission has had due regard to the principle set out in section 3 (2).
Proceedings for an offence against this Act or the regulations are to be dealt with summarily before the Local Court.
(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) A regulation may create an offence punishable by a penalty not exceeding 20 penalty units.
Each Act specified in Schedule 3 is amended in the manner set out in that Schedule.
103 Savings, transitional and other provisions
Schedule 4 has effect.
103A Application of Ombudsman Act 1974
(1) The Ombudsman Act 1974 makes provision in respect of the investigation of the conduct of certain public authorities including the Commission.(2) The Commission is not precluded by anything in this Act or by any other Act or law from providing information to the Ombudsman in connection with a preliminary inquiry under section 13AA of the Ombudsman Act 1974 or an investigation under that Act.Note. Section 12 of the Ombudsman Act 1974 enables a person to make a complaint about a wide range of conduct of a public authority relating to administrative action or inaction by the public authority. Section 13AA of that Act enables the Ombudsman to conduct preliminary inquiries into such a complaint and section 13 of that Act enables the Ombudsman to investigate such conduct whether or not a complaint has been made if it appears to the Ombudsman that the conduct may be, for example, contrary to law.
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 3 years from the date of assent to this Act.(3) A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years.