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Western Australia
Health and Disability Services Legislation
Amendment Bill 2009
CONTENTS
Part 1 -- Preliminary matters
1. Short title 2
2. Commencement 2
Part 2 -- Health Services
(Conciliation and Review)
Act 1995 amended
3. Act amended 3
4. Long title replaced 3
5. Section 1 amended 3
6. Section 3A inserted 3
3A. Act to be read with Disability Services
Act 1993 Part 6 3
7. Section 3 amended 4
8. Section 6 amended 4
9. Section 10 amended 4
10. Section 13 amended 5
11. Section 20 amended 6
12. Section 22 amended 6
13. Section 24 amended 6
14. Section 25 amended 6
15. Section 30 amended 7
16. Section 34 amended 7
17. Section 35 amended 8
18. Section 36A inserted 9
36A. Response by provider 9
36BA. Protection of provider's statements 10
19. Part 3 Division 3A inserted 10
064--2 page i
Health and Disability Services Legislation Amendment Bill 2009
Contents
Division 3A -- Negotiated settlement
36B. Resolving complaints by negotiation 10
36C. Protection of statements made 11
20. Section 41 amended 12
21. Section 44 amended 12
22. Section 48 amended 12
23. Section 50 amended 13
24. Section 52A inserted 13
52A. Report to Parliament where report not
made or remedial action not taken 13
25. Section 56 amended 14
26. Section 59 amended 14
27. Section 61 amended 14
28. Section 64 amended 15
29. Section 79 replaced 15
79. Review of Act 15
30. Section 80 replaced 15
80. Transitional provisions 15
Part 3 -- Disability Services Act 1993
amended
31. Act amended 17
32. Section 3 amended 17
33. Section 3A amended 17
34. Section 30 amended 17
35. Section 30AA inserted 18
30AA. This Part to be read with Health and
Disability Services (Complaints) Act 1995 18
36. Section 30A amended 18
37. Section 31 amended 19
38. Section 32 amended 19
39. Section 33 amended 20
40. Section 33A amended 21
41. Section 36 amended 21
42. Section 37 amended 21
43. Sections 39A and 39B inserted 23
39A. Response by respondent 23
39B. Resolving complaints by negotiation 24
44. Section 39 amended 25
45. Section 40 amended 26
46. Section 41 amended 26
page ii
Health and Disability Services Legislation Amendment Bill 2009
Contents
47. Section 42A inserted 27
42A. Conciliator must not investigate 27
48. Section 42 amended 27
49. Section 44A amended 27
50. Section 44B amended 27
51. Section 46B inserted 28
46B. False or misleading statements 28
52. Section 50 amended 28
Part 4 -- Other Acts amended
53. Carers Recognition Act 2004 amended 29
54. Chiropractors Act 2005 amended 29
55. Constitution Acts Amendment Act 1899 amended 29
56. Financial Management Act 2006 amended 30
57. Freedom of Information Act 1992 amended 30
58. Health Professionals (Special Events Exemption)
Act 2000 amended 31
59. Medical Practitioners Act 2008 amended 31
60. Medical Radiation Technologists Act 2006
amended 32
61. Nurses and Midwives Act 2006 amended 32
62. Occupational Therapists Act 2005 amended 33
63. Optometrists Act 2005 amended 33
64. Osteopaths Act 2005 amended 34
65. Physiotherapists Act 2005 amended 34
66. Podiatrists Act 2005 amended 35
67. Psychologists Act 2005 amended 35
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended--proforma amendments)
Health and Disability Services Legislation
Amendment Bill 2009
A Bill for
An Act to amend --
• the Health Services (Conciliation and Review) Act 1995; and
• the Disability Services Act 1993; and
• various other Acts,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Health and Disability Services Legislation Amendment Bill 2009
Part 1 Preliminary matters
s. 1
1 Part 1 -- Preliminary matters
2 1. Short title
3 This is the Health and Disability Services Legislation
4 Amendment Act 2009.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) Part 1 -- on the day on which this Act receives the
8 Royal Assent;
9 (b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
page 2
Health and Disability Services Legislation Amendment Bill 2009
Health Services (Conciliation and Review) Act 1995 amended Part 2
s. 3
1 Part 2 -- Health Services (Conciliation and Review)
2 Act 1995 amended
3 3. Act amended
4 This Part amends the Health Services (Conciliation and Review)
5 Act 1995.
6 4. Long title replaced
7 Delete the long title and insert:
8
9 An Act to establish a readily accessible agency to which
10 complaints may be made about the provision of health and
11 disability services, to establish a means of having such
12 complaints dealt with in confidence, and for related
13 purposes.
14
15 5. Section 1 amended
16 In section 1 delete "Health Services (Conciliation and Review)
17 Act 1995." and insert:
18
19 Health and Disability Services (Complaints) Act 1995.
20
21 6. Section 3A inserted
22 After section 2 insert:
23
24 3A. Act to be read with Disability Services Act 1993
25 Part 6
26 This Act is to be read with the Disability Services
27 Act 1993 Part 6.
28
page 3
Health and Disability Services Legislation Amendment Bill 2009
Part 2 Health Services (Conciliation and Review) Act 1995 amended
s. 7
1 7. Section 3 amended
2 In section 3(1) delete the definition of Office and insert:
3
4 Office means the Health and Disability Services
5 Complaints Office continued by section 6(1);
6
7 8. Section 6 amended
8 Delete section 6(1) and insert:
9
10 (1) The body called the "Office of Health Review",
11 established previously under this Act, continues under
12 the name "Health and Disability Services Complaints
13 Office".
14
15 9. Section 10 amended
16 In section 10(1):
17 (a) delete "Director are --" and insert:
18
19 Director are as follows --
20
21 (b) delete paragraph (a) and insert:
22
23 (a) to deal with complaints in accordance with
24 Part 3;
25
26 (c) in paragraph (b) before "to review" insert:
27
28 in collaboration with groups of providers or
29 groups of users or both,
30
page 4
Health and Disability Services Legislation Amendment Bill 2009
Health Services (Conciliation and Review) Act 1995 amended Part 2
s. 10
1 (d) in paragraph (f) delete "time; and" and insert:
2
3 time;
4
5 (e) in paragraph (g)(ii) delete "complaints." and insert:
6
7 complaints; and
8
9 (f) after paragraph (g)(ii) insert:
10
11 (iii) advice about removing or minimising
12 the causes of complaints;
13 (h) any other function conferred on the Director by
14 this Act or another written law.
15
16 10. Section 13 amended
17 (1) In section 13(1) delete "Office of Health Review Account" and
18 insert:
19
20 Health and Disability Services Complaints Office Account
21
22 (2) After section 13(1) insert:
23
24 (2) The Health and Disability Services Complaints Office
25 Account is a continuation of the account formerly
26 called the Office of Health Review Account.
27
page 5
Health and Disability Services Legislation Amendment Bill 2009
Part 2 Health Services (Conciliation and Review) Act 1995 amended
s. 11
1 11. Section 20 amended
2 In section 20(2):
3 (a) delete "if, in the Director's opinion --" and insert:
4
5 if --
6
7 (b) delete paragraph (a) and "and" after it and insert:
8
9 (a) the user --
10 (i) has died; or
11 (ii) in the Director's opinion, is unable to
12 complain to the Director and unable to
13 choose a person to complain on the
14 user's behalf;
15 and
16
17 12. Section 22 amended
18 In section 22 delete "Director that," and insert:
19
20 Director that the user has died or,
21
22 13. Section 24 amended
23 In section 24 delete "12 months" and insert:
24
25 24 months
26
27 14. Section 25 amended
28 In section 25(1):
29 (a) in paragraph (a) delete "public";
page 6
Health and Disability Services Legislation Amendment Bill 2009
Health Services (Conciliation and Review) Act 1995 amended Part 2
s. 15
1 (b) in paragraph (b) delete "user;" and insert:
2
3 user, whether the service was requested by the
4 user or a third party;
5
6 15. Section 30 amended
7 In section 30 delete "The Director must not refer a complaint for
8 conciliation or investigate a complaint unless the Director is
9 satisfied that --" and insert:
10
11 The Director may reject a complaint if the Director is
12 not satisfied that --
13
14 16. Section 34 amended
15 (1) Delete section 34(1)(a), (b) and (c) and insert:
16
17 (a) to accept it; or
18 (b) to reject it under section 24, 26 or 30; or
19 (c) to refer it under section 28, 31 or 32,
20
21 (2) Delete section 34(4) and insert:
22
23 (4) If the Director decides to accept a complaint in whole
24 or in part, the Director must then --
25 (a) attempt to settle it in accordance with
26 Division 3A; or
27 (b) refer it for conciliation under Division 3 if the
28 Director is of the opinion it is suitable to be
29 dealt with under that Division; or
page 7
Health and Disability Services Legislation Amendment Bill 2009
Part 2 Health Services (Conciliation and Review) Act 1995 amended
s. 17
1 (c) investigate it if the Director is of the opinion
2 that --
3 (i) it is not suitable to be dealt with under
4 either Division 3A or 3; and
5 (ii) an investigation is warranted, taking
6 into account the likely costs and benefits
7 of the investigation.
8
9 (3) In section 34(5) delete "referring it for conciliation" and insert:
10
11 dealing with it
12
13 (4) Delete section 34(6) and insert:
14
15 (6) If the Director decides --
16 (a) to reject a complaint; or
17 (b) that a complaint is not suitable to be dealt with
18 under either Division 3A or 3 and does not
19 warrant investigating,
20 the Director must, in writing, advise the person who
21 made the complaint of the decision and that the
22 Director will take no further action on the complaint.
23 (7) While performing functions under this section in
24 relation to a complaint, the Director must not try to
25 settle the complaint.
26
27 17. Section 35 amended
28 (1) In section 35(1):
29 (a) in paragraph (a) delete "provider;" and insert:
30
31 provider; and
page 8
Health and Disability Services Legislation Amendment Bill 2009
Health Services (Conciliation and Review) Act 1995 amended Part 2
s. 18
1 (b) after paragraph (a) insert:
2
3 (ba) may give the provider a written notice requiring
4 the provider to give the Director a written
5 response to the complaint in accordance with
6 section 36A; and
7
8 (2) After section 35(3) insert:
9
10 (4) Subject to subsection (2), a notice given under this
11 section must include a copy or the details of the
12 complaint concerned.
13
14 18. Section 36A inserted
15 At the end of Part 3 Division 2 insert:
16
17 36A. Response by provider
18 (1) A provider who is given a notice under section 35(1)(a)
19 may give the Director a written response to the
20 complaint concerned.
21 (2) A provider who is given a notice under
22 section 35(1)(ba) must give the Director a written
23 response to the complaint concerned.
24 (3) Any response given under subsection (1) or (2) must be
25 given to the Director within 28 days, or any longer
26 period allowed under subsection (4), after the date on
27 which the provider receives a notice given under
28 section 35(1)(a) or (ba), as the case requires.
29 (4) The Director may extend that 28 day period for good
30 reason.
page 9
Health and Disability Services Legislation Amendment Bill 2009
Part 2 Health Services (Conciliation and Review) Act 1995 amended
s. 19
1 (5) If a provider does not comply with subsection (2), the
2 Director may nevertheless deal with the complaint
3 under this Part.
4 (6) A provider who does not comply with subsection (2)
5 does not commit an offence.
6 (7) The Director must include in the Office's annual report
7 required by the Financial Management Act 2006 Part 5
8 the details of any breach of subsection (2) that, in the
9 Director's opinion, was committed without a
10 reasonable excuse.
11 36BA. Protection of provider's statements
12 (1) Evidence of anything said in a response given by a
13 provider under section 36A is not admissible in
14 proceedings before a court or tribunal.
15 (2) Despite the Parliamentary Commissioner Act 1971
16 section 20(3), evidence referred to in subsection (1)
17 may be disclosed to the Parliamentary Commissioner
18 for Administrative Investigations for the purposes of an
19 investigation under that Act.
20
21 19. Part 3 Division 3A inserted
22 Before Part 3 Division 3 insert:
23
24 Division 3A -- Negotiated settlement
25 36B. Resolving complaints by negotiation
26 (1) Having accepted a complaint and complied with
27 section 35, the Director may, by negotiating with the
28 person who made the complaint and the provider,
29 attempt to bring about a settlement of the complaint
30 that is acceptable to the parties to it.
page 10
Health and Disability Services Legislation Amendment Bill 2009
Health Services (Conciliation and Review) Act 1995 amended Part 2
s. 19
1 (2) For the purposes of subsection (1) the Director may
2 make any inquiries the Director considers appropriate.
3 (3) If within 56 days, or any longer period allowed under
4 subsection (4), after the date of complying with
5 section 35 the complaint has not been settled under
6 subsection (1), the Director must --
7 (a) refer it for conciliation under Division 3 if the
8 Director is of the opinion it is suitable to be
9 dealt with under that Division; or
10 (b) investigate it if the Director is of the opinion
11 that --
12 (i) it is not suitable to be dealt with under
13 Division 3; and
14 (ii) an investigation is warranted, taking
15 into account the likely costs and benefits
16 of the investigation.
17 (4) The Director may extend that 56 day period if it is for
18 the benefit of the person who made the complaint to do
19 so.
20 (5) If the Director decides a complaint is not suitable to be
21 dealt with under Division 3 and does not warrant
22 investigating, the Director must, in writing, advise the
23 person who made the complaint of the decision and
24 that the Director will take no further action on the
25 complaint.
26 36C. Protection of statements made
27 (1) Evidence of anything said or admitted during any
28 negotiation conducted under section 36B(1) is not
29 admissible in proceedings before a court or tribunal.
30 (2) Despite the Parliamentary Commissioner Act 1971
31 section 20(3), evidence referred to in subsection (1)
32 may be disclosed to the Parliamentary Commissioner
page 11
Health and Disability Services Legislation Amendment Bill 2009
Part 2 Health Services (Conciliation and Review) Act 1995 amended
s. 20
1 for Administrative Investigations for the purposes of an
2 investigation under that Act.
3
4 20. Section 41 amended
5 In section 41(1) delete "through the conciliation process or not."
6 and insert:
7
8 or not with the help of the Office.
9
10 21. Section 44 amended
11 (1) Delete section 44(1).
12 (2) In section 44(2) delete "where subsection (1) applies," and
13 insert:
14
15 if it is of a complaint,
16
17 22. Section 48 amended
18 (1) In section 48(1) delete "under section 44 or" and insert:
19
20 of a complaint or under section
21
22 (2) In section 48(2) delete "under section 44 or" and insert:
23
24 of a complaint or under section
25
page 12
Health and Disability Services Legislation Amendment Bill 2009
Health Services (Conciliation and Review) Act 1995 amended Part 2
s. 23
1 23. Section 50 amended
2 After section 50(1) insert:
3
4 (2A) Before making a decision under subsection (1), the
5 Director must --
6 (a) consult the provider; and
7 (b) if any action that the Director considers ought
8 to be taken to remedy the matter is likely to
9 have an impact on other providers, consult a
10 group of those providers.
11
12 24. Section 52A inserted
13 At the end of Part 3 Division 4 insert:
14
15 52A. Report to Parliament where report not made or
16 remedial action not taken
17 (1) If a notice given under section 50 includes any action
18 that the Director considers ought to be taken by the
19 provider to remedy the matter and the provider does
20 not report in accordance with section 51, the Director
21 must give the Minister a copy of the notice and a
22 written report about the refusal or failure by the
23 provider to so report.
24 (2) If a notice given under section 50 includes any action
25 that the Director considers ought to be taken by the
26 provider to remedy the matter and the provider does
27 not take the action within such time as in the Director's
28 opinion is reasonable, the Director must give the
29 Minister a copy of the notice and a written report about
30 the refusal or failure by the provider to take the action.
page 13
Health and Disability Services Legislation Amendment Bill 2009
Part 2 Health Services (Conciliation and Review) Act 1995 amended
s. 25
1 (3) After receiving the notice and a report under
2 subsection (1) or (2) the Minister may lay both before
3 each House of Parliament.
4 (4) The Director is not to include the complainant's name
5 in the material given to the Minister under
6 subsection (1) or (2) unless authorised to do so by the
7 complainant.
8
9 25. Section 56 amended
10 In section 56(1):
11 (a) in paragraph (b) delete "functions." and insert:
12
13 functions; or
14
15 (b) after paragraph (b) insert:
16
17 (c) arising from information given to the Director
18 under section 75.
19
20 26. Section 59 amended
21 In section 59 delete "under section 44," and insert:
22
23 of a complaint or under section
24
25 27. Section 61 amended
26 In section 61 delete "under section 44," and insert:
27
28 of a complaint or under section
29
page 14
Health and Disability Services Legislation Amendment Bill 2009
Health Services (Conciliation and Review) Act 1995 amended Part 2
s. 28
1 28. Section 64 amended
2 In section 64(1) delete "under section 44," and insert:
3
4 of a complaint or under section
5
6 29. Section 79 replaced
7 Delete section 79 and insert:
8
9 79. Review of Act
10 (1) The Minister must carry out a review of, and prepare a
11 report on, the operation and effectiveness of --
12 (a) this Act; and
13 (b) the Disability Services Act 1993 Part 6,
14 as soon as practicable after 5 years after the date on
15 which the Health and Disability Services Legislation
16 Amendment Act 2009 section 29 comes into operation.
17 (2) The Minister must cause the report to be laid before
18 each House of Parliament as soon as practicable after it
19 is prepared.
20
21 30. Section 80 replaced
22 Delete section 80 and insert:
23
24 80. Transitional provisions
25 (1) A reference in any written law or other document to the
26 Director of the Office of Health Review is to be taken
27 to be a reference to the Director.
page 15
Health and Disability Services Legislation Amendment Bill 2009
Part 2 Health Services (Conciliation and Review) Act 1995 amended
s. 30
1 (2) A reference in any written law or other document to the
2 Office of Health Review is to be taken to be a reference
3 to the Office.
4
page 16
Health and Disability Services Legislation Amendment Bill 2009
Disability Services Act 1993 amended Part 3
s. 31
1 Part 3 -- Disability Services Act 1993 amended
2 31. Act amended
3 This Part amend the Disability Services Act 1993.
4 32. Section 3 amended
5 In section 3 delete the definition of Director and insert:
6
7 Director means the Director of the Health and
8 Disability Services Complaints Office appointed under
9 the Health and Disability Services (Complaints)
10 Act 1995;
11
12 33. Section 3A amended
13 In section 3A(3)(b) delete "Child Welfare Act 1947" and insert:
14
15 Children and Community Services Act 2004
16
17 34. Section 30 amended
18 (1) In section 30 delete the definitions of:
19 member of the staff
20 OHR
21 (2) In section 30 insert in alphabetical order:
22
23 Complaints Office means the Health and Disability
24 Services Complaints Office continued by section 6(1)
25 of the Health and Disability Services (Complaints)
26 Act 1995;
page 17
Health and Disability Services Legislation Amendment Bill 2009
Part 3 Disability Services Act 1993 amended
s. 35
1 member of the staff has the meaning given to that term
2 by section 3(1) of the Health and Disability Services
3 (Complaints) Act 1995;
4
5 35. Section 30AA inserted
6 After section 30 insert:
7
8 30AA. This Part to be read with Health and Disability
9 Services (Complaints) Act 1995
10 This Part is to be read with the Health and Disability
11 Services (Complaints) Act 1995.
12
13 36. Section 30A amended
14 In section 30A(1):
15 (a) delete "Part are --" and insert:
16
17 Part are as follows --
18
19 (b) delete paragraph (a) and insert:
20
21 (a) to deal with complaints in accordance with this
22 Part;
23
24 (c) in paragraph (b) before "to review" insert:
25
26 in collaboration with groups of service
27 providers or groups of persons to whom
28 disability services are provided or both,
29
page 18
Health and Disability Services Legislation Amendment Bill 2009
Disability Services Act 1993 amended Part 3
s. 37
1 (d) in paragraph (f) delete "OHR" and insert:
2
3 Complaints Office
4
5 (e) in paragraph (f) delete "time; and" and insert:
6
7 time;
8
9 (f) in paragraph (g)(ii) delete "complaints." and insert:
10
11 complaints; and
12
13 (g) after paragraph (g)(ii) insert:
14
15 (iii) advice about removing or minimising
16 the causes of complaints.
17
18 37. Section 31 amended
19 In section 31(1) delete "through conciliation provided for under
20 this Part," and insert:
21
22 with the help of the Complaints Office,
23
24 38. Section 32 amended
25 In section 32(2):
26 (a) in paragraph (b)(ii) delete "complaint." and insert:
27
28 complaint;
29
page 19
Health and Disability Services Legislation Amendment Bill 2009
Part 3 Disability Services Act 1993 amended
s. 39
1 (b) after paragraph (b) insert:
2
3 or
4 (c) a person not chosen by the person with a
5 disability if --
6 (i) the person with a disability has died;
7 and
8 (ii) in the Director's opinion, the
9 prospective advocate is a person who
10 has a sufficient interest in the subject
11 matter of the complaint.
12
13 39. Section 33 amended
14 (1) In section 33(2):
15 (a) in paragraph (b) delete "complainant;" and insert:
16
17 complainant, whether the service was requested
18 by the complainant or a third party; or
19
20 (b) in paragraph (f) delete "Charter," and insert:
21
22 Charter; or
23
24 (c) after paragraph (f) insert:
25
26 (g) in respect of a complaint about a matter
27 mentioned in paragraphs (a) to (e) made to the
28 provider or Commission by a person with a
29 disability, acted unreasonably by --
30 (i) not properly investigating the complaint
31 or causing it to be properly investigated;
32 or
page 20
Health and Disability Services Legislation Amendment Bill 2009
Disability Services Act 1993 amended Part 3
s. 40
1 (ii) not taking, or causing to be taken,
2 proper action on the complaint;
3 or
4 (h) acted unreasonably by charging the
5 complainant an excessive fee; or
6 (i) acted unreasonably with respect to a fee,
7
8 (d) after paragraphs (a), (c), (d) and (e) insert:
9
10 or
11
12 (2) Delete section 33(3) and the Penalty provision after it.
13 40. Section 33A amended
14 In section 33A delete "Health Services (Conciliation and
15 Review) Act 1995." and insert:
16
17 Health and Disability Services (Complaints) Act 1995.
18
19 41. Section 36 amended
20 In section 36(a) delete "or investigating".
21 42. Section 37 amended
22 (1) Delete section 37(1)(a) and (b) and insert:
23
24 (a) to accept it; or
25 (b) to reject, defer or refer it under section 38,
26
page 21
Health and Disability Services Legislation Amendment Bill 2009
Part 3 Disability Services Act 1993 amended
s. 42
1 (2) After section 37(3) insert:
2
3 (4A) If under subsection (1) a complaint is accepted, the
4 Director may give the respondent a written notice
5 requiring the respondent to give the Director a written
6 response to the complaint in accordance with
7 section 39A.
8 (4B) If under subsection (1) a complaint is accepted, the
9 Director must then --
10 (a) attempt to settle it in accordance with
11 section 39B; or
12 (b) refer it for conciliation under section 39 if the
13 Director is of the opinion it is suitable to be
14 dealt with under that section; or
15 (c) investigate it if the Director is of the opinion
16 that --
17 (i) it is not suitable to be dealt with under
18 either section 39B or 39; and
19 (ii) an investigation is warranted, taking
20 into account the likely costs and benefits
21 of the investigation.
22
23 (3) After section 37(5) insert:
24
25 (6) If the Director decides that a complaint is not suitable
26 to be dealt with under either section 39B or 39 and
27 does not warrant investigating, the Director must
28 advise the complainant in writing of the decision and
29 that the Director will take no further action on the
30 complaint.
31 (7) While performing functions under this section in
32 relation to a complaint, the Director must not try to
33 settle the complaint.
34
page 22
Health and Disability Services Legislation Amendment Bill 2009
Disability Services Act 1993 amended Part 3
s. 43
1 43. Sections 39A and 39B inserted
2 After section 38 insert:
3
4 39A. Response by respondent
5 (1) A respondent who is given a notice under
6 section 37(3)(c) may give the Director a written
7 response to the complaint concerned.
8 (2) A respondent who is given a notice under
9 section 37(4A) must give the Director a written
10 response to the complaint concerned.
11 (3) Any response given under subsection (1) or (2) must be
12 given to the Director within 28 days, or any longer
13 period allowed under subsection (4), after the date on
14 which the provider receives a notice given under
15 section 37(3)(c) or (4A), as the case requires.
16 (4) The Director may extend that 28 day period for good
17 reason.
18 (5) If a respondent does not comply with subsection (2),
19 the Director may nevertheless deal with the complaint
20 under this Part.
21 (6) A respondent who does not comply with subsection (2)
22 does not commit an offence.
23 (7) The Director must include in the annual report of the
24 Complaints Office required by the Financial
25 Management Act 2006 Part 5 the details of any breach
26 of subsection (2) that, in the Director's opinion, was
27 committed without a reasonable excuse.
28 (8) Evidence of anything said in a response given by a
29 respondent under this section is not admissible in
30 proceedings before a court or tribunal.
page 23
Health and Disability Services Legislation Amendment Bill 2009
Part 3 Disability Services Act 1993 amended
s. 43
1 (9) Despite the Parliamentary Commissioner Act 1971
2 section 20(3), evidence referred to in subsection (8)
3 may be disclosed to the Parliamentary Commissioner
4 for Administrative Investigations for the purposes of an
5 investigation under that Act.
6 39B. Resolving complaints by negotiation
7 (1) Having accepted a complaint and complied with
8 section 37(3)(c), the Director may, by negotiating with
9 the complainant and the respondent, attempt to bring
10 about a settlement of the complaint that is acceptable to
11 the parties to it.
12 (2) For the purposes of subsection (1) the Director may
13 make any inquiries the Director considers appropriate.
14 (3) If within 56 days, or any longer period allowed under
15 subsection (4), after the date of complying with
16 section 37(3)(c) the complaint has not been settled
17 under subsection (1), the Director must --
18 (a) refer it for conciliation under section 39 if the
19 Director is of the opinion it is suitable to be
20 dealt with under that section; or
21 (b) investigate it if the Director is of the opinion
22 that --
23 (i) it is not suitable to be dealt with under
24 section 39; and
25 (ii) an investigation is warranted, taking
26 into account the likely costs and benefits
27 of the investigation.
28 (4) The Director may extend that 56 day period if it is for
29 the benefit of the complainant to do so.
30 (5) If the Director decides a complaint is not suitable to be
31 dealt with under section 39 and does not warrant
32 investigating, the Director must advise the complainant
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Health and Disability Services Legislation Amendment Bill 2009
Disability Services Act 1993 amended Part 3
s. 44
1 in writing of the decision and that the Director will take
2 no further action on the complaint.
3 (6) Evidence of anything said or admitted during any
4 negotiation conducted under subsection (1) is not
5 admissible in proceedings before a court or tribunal.
6 (7) Despite the Parliamentary Commissioner Act 1971
7 section 20(3), evidence referred to in subsection (6)
8 may be disclosed to the Parliamentary Commissioner
9 for Administrative Investigations for the purposes of an
10 investigation under that Act.
11
12 44. Section 39 amended
13 (1) Delete section 39(1) and insert:
14
15 (1) On referring a complaint for conciliation the Director
16 must assign the task of conciliating the complaint to a
17 member of the staff whose duties consist of or include
18 the conciliation of complaints.
19
20 (2) In section 39(2) delete "The Director's function as conciliator"
21 and insert:
22
23 A conciliator's function
24
25 (3) In section 39(4) delete "Director," and insert:
26
27 conciliator,
28
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Health and Disability Services Legislation Amendment Bill 2009
Part 3 Disability Services Act 1993 amended
s. 45
1 (4) After section 39(5) insert:
2
3 (6) If the conciliation process fails to result in the
4 settlement of a complaint between the complainant and
5 the respondent, the Director must investigate the
6 complaint, unless of the opinion that an investigation is
7 not warranted due to the likely costs and benefits of the
8 investigation.
9
10 45. Section 40 amended
11 (1) Delete section 40(1).
12 (2) In section 40(3):
13 (a) after "time" insert:
14
15 during an investigation
16
17 (b) delete "complaint by means of conciliation." and insert:
18
19 complaint.
20
21 46. Section 41 amended
22 After section 41(7) insert:
23
24 (8) A person who has been given a notice under this
25 section must not, without reasonable excuse, proof of
26 which is on the person, furnish relevant information, or
27 produce a relevant record, that the person knows is
28 false or misleading in a material respect.
29 Penalty: $2 500.
30
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Health and Disability Services Legislation Amendment Bill 2009
Disability Services Act 1993 amended Part 3
s. 47
1 47. Section 42A inserted
2 At the end of Part 6 Division 3 insert:
3
4 42A. Conciliator must not investigate
5 A person who under section 39 has conciliated a
6 complaint or attempted to do so must not investigate
7 that complaint.
8
9 48. Section 42 amended
10 After section 42(3) insert:
11
12 (4A) Before making a decision under subsection (1) to
13 recommend any action that ought to be taken to remedy
14 the matter, the Director must --
15 (a) consult the respondent; and
16 (b) if any action that the Director considers ought
17 to be taken to remedy the matter is likely to
18 have an impact on people other than the
19 respondent, consult a group of those people.
20
21 49. Section 44A amended
22 In section 44A(4) delete "OHR" and insert:
23
24 Complaints Office
25
26 50. Section 44B amended
27 In section 44B(2)(c) delete "OHR" and insert:
28
29 Complaints Office
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Health and Disability Services Legislation Amendment Bill 2009
Part 3 Disability Services Act 1993 amended
s. 51
1 51. Section 46B inserted
2 After section 46A insert:
3
4 46B. False or misleading statements
5 A person must not make a statement in a complaint,
6 statement or report given to the Director under this Part
7 that the person knows to be false or misleading in a
8 material respect.
9 Penalty: $2 500.
10
11 52. Section 50 amended
12 In section 50 delete "Health Services (Conciliation and Review)
13 Act 1995," and insert:
14
15 Health and Disability Services (Complaints) Act 1995,
16
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Health and Disability Services Legislation Amendment Bill 2009
Other Acts amended Part 4
s. 53
1 Part 4 -- Other Acts amended
2 53. Carers Recognition Act 2004 amended
3 (1) This section amends the Carers Recognition Act 2004.
4 (2) In the long title delete "to amend the Disability Services
5 Act 1993 and the Health Services (Conciliation and Review)
6 Act 1995,".
7 (3) Delete Part 5.
8 (4) In Schedule 2 Division 1 clause 1 delete "Health Services
9 (Conciliation and Review) Act 1995" and insert:
10
11 Health and Disability Services (Complaints) Act 1995
12
13 54. Chiropractors Act 2005 amended
14 (1) This section amends the Chiropractors Act 2005.
15 (2) In section 3 delete the definition of Director and insert:
16
17 Director means the Director of the Health and
18 Disability Services Complaints Office appointed under
19 the Health and Disability Services (Complaints)
20 Act 1995;
21
22 (3) In sections 52(3), 55(4)(b) and 58(2)(b) delete "Health Services
23 (Conciliation and Review) Act 1995" and insert:
24
25 Health and Disability Services (Complaints) Act 1995
26
27 55. Constitution Acts Amendment Act 1899 amended
28 (1) This section amends the Constitution Acts Amendment Act 1899.
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Health and Disability Services Legislation Amendment Bill 2009
Part 4 Other Acts amended
s. 56
1 (2) In Schedule V Part 1 Division 2:
2 (a) delete "The Director appointed under the Health
3 Services (Conciliation and Review) Act 1995.";
4 (b) insert in alphabetical order:
5
6 Director of the Health and Disability Services
7 Complaints Office appointed under the Health and
8 Disability Services (Complaints) Act 1995.
9
10 56. Financial Management Act 2006 amended
11 (1) This section amends the Financial Management Act 2006.
12 (2) In Schedule 1:
13 (a) delete "Office of Health Review";
14 (b) insert in alphabetical order:
15
16 Health and Disability Services Complaints Office
17
18 57. Freedom of Information Act 1992 amended
19 (1) This section amends the Freedom of Information Act 1992.
20 (2) In Schedule 1 clause 14(3):
21 (a) delete "a conciliation" and insert:
22
23 negotiating the settlement of or conciliating a complaint
24
25 (b) in paragraph (a) after "Division" insert:
26
27 3A or
28
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Health and Disability Services Legislation Amendment Bill 2009
Other Acts amended Part 4
s. 58
1 (c) delete "Health Services (Conciliation and Review)
2 Act 1995." and insert:
3
4 Health and Disability Services (Complaints) Act 1995.
5
6 (3) After Schedule 1 clause 14(3) insert:
7
8 (4A) Matter is exempt matter if its disclosure would reveal
9 anything said or admitted for the purposes of
10 negotiating the settlement of or conciliating a
11 complaint under Division 2 of Part 6 of the Disability
12 Services Act 1993.
13
14 58. Health Professionals (Special Events Exemption) Act 2000
15 amended
16 (1) This section amends the Health Professionals (Special Events
17 Exemption) Act 2000.
18 (2) In section 13(1) delete "Health Services (Conciliation and
19 Review) Act 1995" and insert:
20
21 Health and Disability Services (Complaints) Act 1995
22
23 59. Medical Practitioners Act 2008 amended
24 (1) This section amends the Medical Practitioners Act 2008.
25 (2) In section 4:
26 (a) in the definition of complaint paragraph (d) delete
27 "Health Services (Conciliation and Review) Act 1995"
28 and insert:
29
30 Health and Disability Services (Complaints) Act 1995
31
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Health and Disability Services Legislation Amendment Bill 2009
Part 4 Other Acts amended
s. 60
1 (b) delete the definition of Director and insert:
2
3 Director means the Director of the Health and
4 Disability Services Complaints Office appointed under
5 the Health and Disability Services (Complaints)
6 Act 1995;
7
8 (3) In section 87(6)(b) delete "Health Services (Conciliation and
9 Review) Act 1995" and insert:
10
11 Health and Disability Services (Complaints) Act 1995
12
13 60. Medical Radiation Technologists Act 2006 amended
14 (1) This section amends the Medical Radiation Technologists
15 Act 2006.
16 (2) In section 3 delete the definition of Director and insert:
17
18 Director means the Director of the Health and
19 Disability Services Complaints Office appointed under
20 the Health and Disability Services (Complaints)
21 Act 1995;
22
23 (3) In sections 52(3), 55(4)(b) and 58(2)(b) delete "Health Services
24 (Conciliation and Review) Act 1995" and insert:
25
26 Health and Disability Services (Complaints) Act 1995
27
28 61. Nurses and Midwives Act 2006 amended
29 (1) This section amends the Nurses and Midwives Act 2006.
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Health and Disability Services Legislation Amendment Bill 2009
Other Acts amended Part 4
s. 62
1 (2) In section 3 delete the definition of Director and insert:
2
3 Director means the Director of the Health and
4 Disability Services Complaints Office appointed under
5 the Health and Disability Services (Complaints)
6 Act 1995;
7
8 (3) In sections 54(3), 57(4)(b) and 60(2)(b) delete "Health Services
9 (Conciliation and Review) Act 1995" and insert:
10
11 Health and Disability Services (Complaints) Act 1995
12
13 62. Occupational Therapists Act 2005 amended
14 (1) This section amends the Occupational Therapists Act 2005.
15 (2) In section 3 delete the definition of Director and insert:
16
17 Director means the Director of the Health and
18 Disability Services Complaints Office appointed under
19 the Health and Disability Services (Complaints)
20 Act 1995;
21
22 (3) In sections 52(3), 55(4)(b) and 58(2)(b) delete "Health Services
23 (Conciliation and Review) Act 1995" and insert:
24
25 Health and Disability Services (Complaints) Act 1995
26
27 63. Optometrists Act 2005 amended
28 (1) This section amends the Optometrists Act 2005.
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Health and Disability Services Legislation Amendment Bill 2009
Part 4 Other Acts amended
s. 64
1 (2) In section 3 delete the definition of Director and insert:
2
3 Director means the Director of the Health and
4 Disability Services Complaints Office appointed under
5 the Health and Disability Services (Complaints)
6 Act 1995;
7
8 (3) In sections 51(3), 54(4)(b) and 57(2)(b) delete "Health Services
9 (Conciliation and Review) Act 1995" and insert:
10
11 Health and Disability Services (Complaints) Act 1995
12
13 64. Osteopaths Act 2005 amended
14 (1) This section amends the Osteopaths Act 2005.
15 (2) In section 3 delete the definition of Director and insert:
16
17 Director means the Director of the Health and
18 Disability Services Complaints Office appointed under
19 the Health and Disability Services (Complaints)
20 Act 1995;
21
22 (3) In sections 51(3), 54(4)(b) and 57(2)(b) delete "Health Services
23 (Conciliation and Review) Act 1995" and insert:
24
25 Health and Disability Services (Complaints) Act 1995
26
27 65. Physiotherapists Act 2005 amended
28 (1) This section amends the Physiotherapists Act 2005.
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Health and Disability Services Legislation Amendment Bill 2009
Other Acts amended Part 4
s. 66
1 (2) In section 3 delete the definition of Director and insert:
2
3 Director means the Director of the Health and
4 Disability Services Complaints Office appointed under
5 the Health and Disability Services (Complaints)
6 Act 1995;
7
8 (3) In sections 52(3), 55(4)(b) and 58(2)(b) delete "Health Services
9 (Conciliation and Review) Act 1995" and insert:
10
11 Health and Disability Services (Complaints) Act 1995
12
13 66. Podiatrists Act 2005 amended
14 (1) This section amends the Podiatrists Act 2005.
15 (2) In section 3 delete the definition of Director and insert:
16
17 Director means the Director of the Health and
18 Disability Services Complaints Office appointed under
19 the Health and Disability Services (Complaints)
20 Act 1995;
21
22 (3) In sections 52(3), 55(4)(b) and 58(2)(b) delete "Health Services
23 (Conciliation and Review) Act 1995" and insert:
24
25 Health and Disability Services (Complaints) Act 1995
26
27 67. Psychologists Act 2005 amended
28 (1) This section amends the Psychologists Act 2005.
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Health and Disability Services Legislation Amendment Bill 2009
Part 4 Other Acts amended
s. 67
1 (2) In section 3 delete the definition of Director and insert:
2
3 Director means the Director of the Health and
4 Disability Services Complaints Office appointed under
5 the Health and Disability Services (Complaints)
6 Act 1995;
7
8 (3) In sections 51(3), 54(4)(b) and 57(2)(b) delete "Health Services
9 (Conciliation and Review) Act 1995" and insert:
10
11 Health and Disability Services (Complaints) Act 1995
12
13
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