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Nursing Act 1995
An Act to provide for the registration and enrolment of nurses, the regulation of the practice of nursing, the repeal of the Nursing Act 1987 and for related purposes
[Royal Assent 24 November 1995]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Nursing Act 1995 .
(1) Section 1 , this section and sections 100 and 101 commence on the day on which this Act receives the Royal Assent.(2) The remaining provisions of this Act commence on a day to be proclaimed.
(1) In this Act, unless the contrary intention appears –accredited means accredited by the Board;applicant means a person who submits an application to the Board;application means an application to be registered or enrolled as a nurse;approved means approved by the Board;assessment means an assessment of an applicant's entitlement to be registered or enrolled;Australian Nursing Council means the body incorporated in the Australian Capital Territory, for the purpose of establishing and maintaining national standards and processes for the regulation of nursing in Australia, called the Australian Nursing Council Incorporated;authorisation means an authorisation to practise in a restricted practice area;Board means the Nursing Board of Tasmania;business address means the address of the premises at or from which a person practises;certificate of enrolment means a certificate of enrolment issued by the Board under section 38 (b) ;certificate of registration means a certificate of registration issued by the Board under section 38 (a) ;committee means a committee established by the Board under section 12 ;committee of assessors means a committee that conducts an assessment;complaint means a complaint made under section 55 ;contravene includes fail to comply;defendant means a registered or enrolled nurse who is the subject of an inquiry;education includes training;enrolled means enrolled under this Act;enrolled nurse means a person who is enrolled as a nurse;Executive Officer means the Executive Officer of the Board appointed under section 13(1) ;financial year means the 12 month period ending on 30 June in any year;foreign nursing law means a law of a jurisdiction outside this State relating to the registration, licensing or enrolment of nurses;functions includes duties;general practice means those areas of nursing practice other than restricted practice areas;inquiry means an inquiry conducted by the Tribunal under Division 2 of Part 4 ;inspector means a person appointed as an inspector under section 69 ;interim certificate of enrolment means an interim certificate of enrolment issued by the Executive Officer under section 23 ;interim certificate of registration means an interim certificate of registration issued by the Executive Officer under section 23 ;interim practising certificate means an interim practising certificate issued by the Executive Officer under section 23 ;legal practitioner means a person who is a legal practitioner within the meaning of the Legal Profession Act 1993 ;member means a member of the Board and includes the chairperson;midwife means a registered nurse who holds an authorisation to practise midwifery;notice means notice in writing;nurse means a person who is registered or enrolled as a nurse;Nursing Code means the by-laws made by the Board under section 11 ;nursing practice includes nursing clinical practice, nursing education practice, nursing management practice and nursing research practice;nursing registration authority means a body established under the law of another State or of a Territory and having functions similar to the functions of the Board;practise means practise nursing;practising certificate means a practising certificate issued by the Board under section 38 ;register means the Register of Nurses kept by the Board under section 43 ;registered means registered under this Act;registered nurse means a person who is registered as a nurse;report includes publish;restricted practice area means an area of nursing practice referred to in section 31 ;roll means the Roll of Nurses kept by the Board under section 44 ;Secretary means Secretary of the Department;specified means specified in writing by the Board;supervision includes oversight, direction, guidance and support;Tribunal means the Professional Review Tribunal established under section 62 .(2) If the Australian Nursing Council changes its name, the Governor, by order, may amend this Act by substituting that body's new name.(3) If the Australian Nursing Council ceases to exist, the Governor, by order, may amend this Act by substituting the name of a body that the Governor is satisfied has a function similar to that of the defunct body.
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
PART 2 - Nursing Board of Tasmania
Division 1 - The Board
(1) The Nursing Board of Tasmania is established.(2) The Board may –(a) acquire, hold, dispose of and otherwise deal with property; and(b) sue and be sued in its corporate name.
(1) The Board consists of –(a) 5 nurses, nominated by the Minister, who hold practising certificates and have demonstrated an ability to assist in the fulfilment of the Board's objectives; and(b) . . . . . . . .(c) 2 persons, who are not nurses, nominated by the Minister to represent the interests of persons who use the services provided by nurses.(2) The members are appointed by the Governor.(3) The Governor may appoint a member referred to in subsection (1)(a) as chairperson.(4) Schedule 1 has effect with respect to membership of the Board.(5) Schedule 2 has effect with respect to meetings of the Board.
Division 2 - Functions, powers and objectives
The Board has the following functions:(a) to administer the scheme of registration and enrolment under Part 3 ;(b) to monitor the standard and provision of nursing services in this State;(c) to determine the activities that constitute or are included in the scope of nursing practice;(d) to examine complaints and, as necessary, refer them to the Tribunal for inquiry;(e) to prosecute offences against this Act;(f) to monitor standards of nursing education;(g) to determine standards for the accreditation of nursing schools and courses in nursing;(h) to accredit nursing schools and courses in nursing;(i) to advise the Minister on developments in nursing education, practice and regulation and on the needs of the State in relation to those matters;(j) to advise the Minister on other matters relating to this Act;(k) such other functions as may be imposed on the Board by this or any other Act or as may be prescribed.
(1) The Board has power to do all things necessary or convenient to be done in connection with the performance of its functions and, in particular, has power to –(a) share information with nursing registration authorities, the Australian Nursing Council and other relevant bodies; and(b) publish and distribute information concerning this Act and its administration to nurses and other interested persons; and(c) support nursing education and research; and(d) conduct examinations and assessments; and(e) co-operate with any university, hospital or other institution or body, whether located in this State or elsewhere, in making provision for the education and assessment of nurses; and(f) participate in any State, national or other program relating to nursing education or practice; and(g) be a member of any national or other body or program concerned with nurses or specific groups of nurses or with general nursing education or practice or a specific area of nursing education or practice; and(h) participate in the formation of any body or program of the kind referred to in paragraph (g) ; and(i) assist any person or body in the development of curricula for nursing education; and(j) do anything incidental to any of its powers.(2) In subsection (1) , any State includes any Territory of the Commonwealth.
The Board must perform its functions and exercise its powers under this Act so as to –(a) ensure that nursing services provided to the public are of the highest possible standard; and(b) ensure that persons practise nursing according to the highest professional standards; and(c) guard against unsafe, incompetent and unethical nursing practices.
Division 3 - Miscellaneous
The Board may delegate any of its functions or powers, other than this power of delegation, to a member of the Board, the Executive Officer or a committee.
(1) The Board may, by resolution in accordance with subsection (2) , make by-laws for the purpose of providing practical guidance to nurses in general practice and in restricted practice areas.(2) A resolution of the Board to make a by-law must be adopted on the affirmative vote of at least 5 members present and voting at the relevant meeting.(3) A by-law made under subsection (1) is not a statutory rule within the meaning of the Rules Publication Act 1953 .(4) By-laws made under subsection (1) may be referred to, collectively, as the Nursing Code.(5) The Board must –(a) make a copy of the Nursing Code available at its office to be inspected by any person on request free of charge; and(b) ensure that any person who wishes to do so may obtain a copy of the Nursing Code from the Board.(6) The Board may charge a fee to recover the cost of providing a person with a copy of the Nursing Code.
(1) The Board may establish such committees as it considers necessary for the purpose of assisting it in the performance of any of its functions or the exercise of any of its powers or advising it on any matter relating to this Act.(2) A committee comprises such persons as the Board appoints.(3) A member of the Board may be a member of a committee.(4) Subject to subsection (5) , a member of a committee is entitled to be paid such remuneration, including travelling and subsistence allowances, as the Board may from time to time determine and any such remuneration is to be paid by the Board.(5) A member of a committee who is a State Service officer or State Service employee is not entitled to remuneration under subsection (4) except with the approval of the Minister administering the State Service Act 2000 .(6) The Board may give written directions to a committee and the committee must comply with those directions.(7) A committee must keep accurate minutes of its proceedings.(8) Except as otherwise provided in this Act, a committee may regulate its own proceedings.
(1) In this section –accumulation scheme means the Tasmanian Accumulation Scheme established under the Public Sector Superannuation Reform Act 1999 ;complying superannuation scheme means a complying superannuation fund as provided by the law of the Commonwealth;contributory scheme means the superannuation arrangements provided by Part 4 of the Retirement Benefits Regulations 1994 .(1A) The Board must appoint a registered nurse as Executive Officer and may appoint such other employees as may be necessary for the performance of its functions and the exercise of its powers.(2) The Executive Officer is to act as secretary to the Board.(3) The State Service Act 2000 does not apply to employees of the Board.(4) . . . . . . . .(5) . . . . . . . .(6) The Board may participate in the superannuation schemes provided by and under the Retirement Benefits Act 1993 and, if it does so participate in those schemes in relation to an employee, it is a State authority for the purposes of that Act in respect of that employee.(7) Except as provided by subsection (6) , the Retirement Benefits Act 1993 does not apply to the Board or its employees.(8) Where a person is appointed as a member or employee –(a) he or she is not eligible to become a member of the contributory scheme; and(b) the application of the Public Sector Superannuation Reform Act 1999 extends to the member or employee as if he or she were an employee for the purposes of that Act; and(c) subject to subsection (9) , he or she is to be a member of the accumulation scheme.(9) A member or employee may elect by notice in writing given to the Secretary, either before or after commencing the duties of that office, to become a member of a complying superannuation scheme other than the accumulation scheme.(10) A member or employee is entitled to employer superannuation contributions at the rate specified in the Public Sector Superannuation Reform Act 1999 .(11) Subsections (8) , (9) and (10) do not apply to an employee who, immediately before his or her appointment as such, was a contributor to the contributory scheme.(12) Where an election is made under subsection (9) , the Secretary is not required to pay superannuation contributions into a complying superannuation scheme if that scheme does not accept payment by electronic funds transfer.
14. Use by Board of services of persons
(1) The Board may arrange with the Head of a State Service Agency for the services of State Service officers and State Service employees employed in that Agency to be made available to the Board.(2) The Board may arrange with any other person for the services of persons employed by that person to be made available to the Board.(3) The cost of making a person's services available to the Board in accordance with this section is to be met by the Board.
A person who is an employee of the Board or a member of a committee does not incur any personal liability for an act done or purported or omitted to be done by the person in good faith for the purpose of administering or executing this Act.
Division 4 - Finance and reports
(1) The Board is to keep such authorised deposit-taking institution accounts as it considers necessary.(2) The funds of the Board are to be paid to the credit of such of its authorised deposit-taking institution accounts as it determines and are to consist of–(a) money received by way of fees, fines, penalties and charges paid to or recovered by the Board; and(b) any money borrowed by the Board; and(c) any money received by the Board from other sources.(3) The funds of the Board are to be applied –(a) in payment or discharge of the expenses, charges and obligations incurred or undertaken by the Board in the performance of its functions or the exercise of its powers; and(b) in the payment of any remuneration payable by the Board.(4) The Board may invest any money that it is holding in any manner in which a trustee is authorised by law to invest trust funds.
The accounts of the Board are subject to the Financial Management and Audit Act 1990 .
The Board must keep proper accounts and records of its financial affairs and, not later than 31 August after the end of each financial year, prepare a statement of accounts in a form approved by the Auditor-General exhibiting a true and correct view of the financial position and transactions of the Board for that financial year.
(1) The Board must, not later than 31 October after the end of each financial year, give the Minister a report on its operations for that financial year.(2) The report is to incorporate the audited statement of accounts prepared for that financial year under section 18 .(3) The Minister may, in writing, direct the Board to prepare the report in a particular way or to include particular information in the report.(4) The report may be appended to the annual report of the Department.(5) Subsection (4) has effect notwithstanding section 36(3) of the State Service Act 2000 and section 27 (2) of the Financial Management and Audit Act 1990 .(6) If the Board's report is not appended to the annual report of the Department, the Minister must cause the Board's report to be laid before each House of Parliament by not later than 30 November after the end of the financial year to which it relates.
PART 3 - Registration and Enrolment
Division 1 - Applying for registration or enrolment
20. Who may apply for registration or enrolment
A person may apply to the Board to be registered or enrolled as a nurse if the person has –(a) successfully completed an accredited course in nursing education in Tasmania; or(b) successfully completed a course in nursing education outside Tasmania that the Board considers to be at least substantially equivalent to an accredited course in nursing; or(c) experience and training in nursing practice that the Board considers to be at least substantially equivalent to the successful completion of an accredited course in nursing.
21. Requirements of application for registration or enrolment
(1) An application is to –(a) be in a form approved by the Board; and(b) be lodged with the Executive Officer; and(c) be accompanied by the prescribed application fee and prescribed practising certificate fee; and(d) specify, if the application is for registration, whether the applicant is enrolled or, if the application is for enrolment, whether the applicant is registered; and(e) be accompanied by such information or evidence as the Board requires.(2) The Board may require an applicant to provide such further information or evidence as it considers necessary in order to consider the application.(3) The Board may waive the payment of all or part of the prescribed application fee or prescribed practising certificate fee.
Division 2 - Determination of entitlement
22. Entitlement to registration or enrolment
(1) Subject to subsection (2) , an applicant is entitled to be registered or enrolled as a nurse if the Board is satisfied that the applicant –(a) is eligible to apply for registration or enrolment; and(b) has sufficient physical capacity, mental capacity and competence to practise; and(c) is of good character; and(d) has an adequate command of the English language.(2) The Board may determine that an applicant is not entitled to be registered or enrolled as a nurse if it is not satisfied that the applicant, when practising, will have adequate professional indemnification arrangements.
23. Interim registration or enrolment
(1) The Executive Officer may grant an applicant interim registration or enrolment if the Executive Officer reasonably considers that the applicant is entitled to be registered or enrolled as a nurse but that it is not practicable to wait until the Board can consider the application.(2) Interim registration or enrolment may be granted unconditionally or subject to conditions.(3) The Executive Officer must issue –(a) an interim certificate of registration and interim practising certificate to a person who is granted interim registration; and(b) an interim certificate of enrolment and interim practising certificate to a person who is granted interim enrolment.(4) The interim certificates are to be in such form and contain such information as the Board determines.(5) A person to whom interim registration is granted is taken to be a registered nurse for the period during which the interim registration is in force subject to the conditions, if any, determined by the Executive Officer and specified in the interim certificate of registration and interim practising certificate.(6) A person to whom interim enrolment is granted is taken to be an enrolled nurse for the period during with the interim enrolment is in force subject to the conditions, if any, determined by the Executive Officer and specified in the interim certificate of enrolment and interim practising certificate.(7) A person's interim registration or enrolment is in force from the date on which it is granted until the date on which the person is given notice by the Board that it has –(a) registered or enrolled the person; or(b) refused to register or enrol the person; or(c) cancelled the interim registration or enrolment.
24. Cancellation of interim registration or enrolment
(1) The Board may cancel a person's interim registration or enrolment for anyreason it considers sufficient.(2) If the Board decides to cancel a person's interim registration or enrolment it must immediately give the person notice of its decision and the reasons for its decision.(3) When the notice is given to the person, the interim certificates issued to that person under section 23(3) cease to be valid.(4) A person who is given a notice under subsection (2) must surrender to the Board the person's interim practising certificate and interim certificate of registration or enrolment within 7 days after receiving the notice or within such longer period as the Board may allow.Penalty: Fine not exceeding 15 penalty units and a daily fine not exceeding 1·5 penalty units.
(1) The Board may, pursuant to section 12 , establish a committee of assessors to assess whether an applicant is entitled to be registered or enrolled.(2) A committee of assessors is to consist of not less than 3 persons, at least 2 of whom are to be registered nurses.(3) Schedule 3 has effect with respect to the powers and procedures of committees of assessors.(4) In a case to which subsection (1) applies, the Executive Officer must give notice to the applicant and the Secretary of –(a) the reasons for holding the assessment; and(b) the date, time and place set for the assessment.(5) A notice under subsection (4) is to be given to the applicant at least 14 days before the date, or first date, set for the assessment.(6) A notice under subsection (4) to an applicant is to inform the applicant of the applicant's right to be represented in the assessment.
26. Recommendation of committee of assessors
(1) After conducting an assessment, a committee of assessors must give the Board a written report containing–(a) a recommendation as to whether the applicant is entitled to be registered or enrolled and, if so, whether the registration or enrolment should be unconditional or subject to conditions; and(b) if the committee recommends that the applicant is entitled to be registered or enrolled subject to conditions– a further recommendation as to what those conditions should be.(2) A report under subsection (1) is also to –(a) contain any findings on questions of fact and the evidence or other material on which those findings are based; and(b) set out the reasons for any recommendation.
Division 3 - Grant or refusal of registration or enrolment
27. Determination of application
(1) In this section, agreed period means a period agreed upon by the Board and the applicant for the purpose of this section.(2) If the Board is satisfied that an applicant is entitled to be registered or enrolled it must register or enrol the applicant and it may do so unconditionally or subject to conditions.(3) In a case to which subsection (2) applies, the Board must give notice to the applicant of –(a) the applicant's registration or enrolment; and(b) if the registration or enrolment is conditional – the conditions that the registration or enrolment is subject to and the applicant's rights of appeal and review in respect of those conditions.(4) If the Board is not satisfied that an applicant is entitled to be registered or enrolled, it must refuse to register or enrol the applicant.(5) If the Board does not register or enrol an applicant within a period of 3 months or a further agreed period after his or her application is lodged, the Board is taken to have refused to register or enrol the applicant.(6) In a case to which subsection (4) or (5) applies, the Board must –(a) give notice to the applicant of the refusal to register or enrol the applicant, the reasons for the refusal and the applicant's right of appeal; and(b) refund the prescribed practising certificate fee that accompanied the application.
28. Special grounds for refusing to grant registration or enrolment
Without limiting the matters that the Board may have regard to under section 22 (b) or (c) , the Board may determine that an applicant is not entitled to be registered or enrolled as a nurse if –(a) the applicant's entitlement to practise under a foreign nursing law has been cancelled or suspended for a reason relating to the person's professional conduct or physical or mental capacity; or(b) the applicant has been convicted in Tasmania or elsewhere of a crime or an offence of a kind that, in the Board's opinion, makes it not in the public interest to allow the applicant to practise; or(c) the Board considers it is not in the public interest to grant the application because of the applicant's habitual taking of intoxicating liquors or harmful drugs.
29. Person cannot be registered and enrolled at same time
(1) A person is not entitled to be registered and enrolled at the same time.(2) If an enrolled nurse is granted registration by the Board, the person's enrolment is cancelled.(3) If a registered nurse is granted enrolment by the Board, the person's registration is cancelled.(4) If an enrolled nurse is granted interim registration by the Executive Officer, the person's enrolment is taken to be suspended for the period of the interim registration.(5) If a registered nurse is granted interim enrolment by the Executive Officer, the person's registration is taken to be suspended for the period of the interim enrolment.
30. Review of registration or enrolment conditions
(1) A person may, at intervals of not less than 12 months each, apply to the Board for a review of a condition that the person's registration or enrolment has been made subject to under section 27 (2) .(2) A person's right under subsection (1) is in addition to that person's right of appeal under section 72 (1) (b) .(3) The Board on its own motion may at any time review a condition that a person's registration or enrolment has been made subject tounder section 27 (2) .(4) After it has reviewed a condition of registration or enrolment, the Board may –(a) leave the condition in place; or(b) remove the condition; or(c) modify the condition so as to make it less onerous.(5) As soon as practicable after it has reviewed a condition of a person's registration or enrolment, the Board must give the person notice of the outcome of the review.
Division 4 - Authorisations to practise in restricted practice areas
The following areas of nursing practice are restricted practice areas:(a) midwifery;(b) psychiatric nursing;(c) such other areas of nursing practice as may be prescribed.
32. Who may apply for authorisation?
A registered nurse may apply to the Board for an authorisation to practise in a restricted practice area if –(a) in the case of midwifery – the nurse has successfully completed an accredited midwifery course or has qualifications, training and experience in midwifery that the Board considers to be at least substantially equivalent to an accredited midwifery course; and(b) in the case of psychiatric nursing – the nurse has successfully completed an accredited psychiatric nursing course or has qualifications, training and experience in psychiatric nursing that the Board considers to be at least substantially equivalent to an accredited psychiatric nursing course; and(c) in the case of a prescribed area of nursing practice – the nurse has the qualifications, training and experience prescribed in respect of that area of nursing practice or has qualifications, training and experience that the Board considers to be at least substantially equivalent to the prescribed qualifications, training and experience.
33. Requirements of application for authorisation
(1) An application for an authorisation is to be –(a) in a form approved by the Board; and(b) lodged with the Executive Officer; and(c) accompanied by the prescribed application fee; and(d) accompanied by such information or evidence as the Board requires.(2) The Board may require an applicant for an authorisation to provide such further information or evidence as is considered necessary in order to consider the application.(3) The Board may waive the payment of all or part of the prescribed application fee.
34. Entitlement to authorisation
An applicant for an authorisation to practise in a restricted practice area is entitled to be granted that authorisation if the Board is satisfied that the applicant –(a) is eligible to apply for the authorisation; and(b) has sufficient physical capacity, mental capacity and competence to practise in that restricted practice area.
35. Assessment and determination of applications
Sections 25 , 26 , 27 , 28 and 30 apply to applications for authorisations and the determination of such applications as if –(a) the reference in those sections to an applicant were references to an applicant for an authorisation; and(b) the references in those sections to registration were references to an authorisation; and(c) the references in those sections to an entitlement to registration were a reference to an entitlement to an authorisation.
(1) In this section –applicant means an applicant for an authorisation;application means an application for an authorisation.(2) The Executive Officer may grant an applicant an interim authorisation if the Executive Officer reasonably considers that the applicant is entitled to the authorisation but that it is not practicable to wait until the Board can consider the application.(3) The interim authorisation may be granted unconditionally or subject to conditions.(4) The Executive Officer is to endorse the interim authorisation on the applicant's practising certificate or interim practising certificate.(5) A registered nurse to whom an interim authorisation has been granted is authorised to practise in the restricted practice area specified in the authorisation subject to the conditions, if any, determined by the Executive Officer and specified in the authorisation.(6) A person's interim authorisation is in force from the date on which it is granted until the date on which the person is given notice by the Board that it has –(a) approved the person's application; or(b) refused to approve the person's application; or(c) cancelled the interim authorisation.
37. Cancellation of authorisations
(1) In this section –authorisation includes interim authorisation;full registration means registration other than interim registration.(2) The Board may cancel a nurse's authorisation for any reason it considers sufficient.(3) Without limiting the generality of the power under subsection (2) , the Board may cancel a nurse's authorisation if that nurse –(a) was granted the authorisation by means of a false or misleading statement or declaration; or(b) no longer holds, or is no longer entitled to hold, a qualification by reason of which he or she was granted the authorisation; or(c) lacks sufficient physical capacity, mental capacity or competence to practise in the relevant restricted practice area; or(d) contravenes a condition of the authorisation; or(e) contravenes the Nursing Code as it applies to the relevant restricted practice area; or(f) is negligent in practising in the relevant restricted practice area.(4) The Board must not cancel a nurse's authorisation without first affording that nurse a reasonable opportunity to be heard.(4A) If the Board decides to cancel a nurse's authorisation it must immediately give the nurse notice of its decision and the cancellation takes effect on the giving of that notice.(5) The notice is to–(a) specify the reasons for the cancellation of the authorisation; and(b) in the case of a notice to a nurse holding full registration– inform the nurse of his or her right of appeal.(6) . . . . . . . .
Division 5 - Certificates
38. Registered or enrolled person to be issued with certificates
The Board must issue –(a) a certificate of registration and a practising certificate to a person who is granted registration; and(b) a certificate of enrolment and a practising certificate to a person who is granted enrolment.
39. Certificates of registration and enrolment
(1) A certificate of registration or enrolment is to –(a) be in such form and contain such information as the Board determines; and(b) specify the conditions, if any, to which the registration or enrolment is subject.(2) A certificate of registration is evidence that the person named in the certificate is registered as a nurse subject to the conditions, if any, specified in the certificate.(3) A certificate of enrolment is evidence that the person named in the certificate is enrolled as a nurse subject to the conditions, if any, specified in the certificate.
(1) A practising certificate is to –(a) be in such form and contain such information as the Board determines; and(b) specify the conditions, if any, to which the certificate holder's registration or enrolment is subject; and(c) in the case of a practising certificate issued to a registered nurse – specify any authorisations held by the certificate holder.(2) A practising certificate issued to a registered nurse is evidence that, for the period or until the date specified in the certificate –(a) the nurse is authorised to engage in general practice in this State subject to the conditions, if any, specified in the certificate; and(b) the nurse is authorised to practise in the restricted practice areas, if any, subject to the conditions, if any, specified in the certificate.(3) A practising certificate issued to an enrolled nurse is evidence that, for the period or until the date specified in the certificate, the nurse is authorised to practise in this State under the supervision of a registered nurse subject to the conditions, if any, specified in the certificate.
41. Replacement and amendment of certificates
(1) In this section, certificate means a certificate of registration, certificate of enrolment or a practising certificate.(2) If the Board is satisfied that a certificate has been lost or destroyed it may issue a replacement certificate, that is marked as such, upon payment of the prescribed fee.(3) The Board, by notice, may require a registered or enrolled nurse to surrender a certificate to enable the Board to issue that nurse with a new certificate with amended particulars.(4) The Executive Officer has the same powers in relation to interim certificates issued under section 23 to applicants as the Board has under this section in relation to certificates.(5) A registered or enrolled nurse who is given a notice by the Board pursuant to subsection (3) must surrender his or her certificate to the Board within 14 days after being given the notice or within such longer period as the Board may allow.Penalty: Fine not exceeding 15 penalty units.(6) A person who is given a notice by the Executive Officer pursuant to subsection (4) must surrender his or her interim certificate to the Executive Officer within 14 days after being given the notice or within such longer period as the Executive Officer may allow.Penalty: Fine not exceeding 15 penalty units.
42. Offences in relation to certificates
A person who is issued with –(a) a certificate of registration or enrolment; or(b) an interim certificate of registration or enrolment; or(c) a practising certificate; or(d) an interim practising certificate –must not –(e) lend or agree to lend that certificate to another person; or(f) allow that certificate to be used by another person.Penalty: Fine not exceeding 25 penalty units.
Division 6 - Register and Roll of Nurses
(1) The Board must keep a register called the Register of Nurses.(2) The Board must record the following information in the register in relation to each person who is granted registration:(a) the person's full name, personal address and business address, if any;(b) the person's relevant qualifications;(c) the date of the person's registration;(d) any conditions that the person's registration has been made subject to under section 27 (2) and any modification of those conditions;(e) any authorisations that the person holds.(3) The Board must also record the following matters in the register:(a) the renewal of a person's right of practice;(b) the suspension of a person's right of practice;(c) any conditions that a person's registration has been made subject to under section 64 (1) (e) and any modification of those conditions;(d) the removal from the register of a person's name;(e) the restoration to the register of a person's name;(f) any change in the name, personal address or business address, if any, of a registered person;(g) any change in the authorisations held by a registered person.(4) The register may contain such other information as the Board considers necessary or appropriate.
(1) The Board must keep a roll called the Roll of Nurses.(2) The Board must record the following information in the roll in relation to each person who is granted enrolment:(a) the person's full name, personal address and business address, if any;(b) the person's relevant qualifications;(c) the date of the person's enrolment;(d) any conditions that the person's enrolment has been made subject to under section 27 (2) and any modification of those conditions.(3) The Board must also record the following matters in the roll:(a) the renewal of a person's rightof practice;(b) the suspension of a person's right of practice;(c) any conditions that a person's enrolment has been made subject to under section 64 (1) (e) and any modification of those conditions;(d) the removal from the roll of a person's name;(e) the restoration to the roll of a person's name;(f) any change in the name, personal address or business address, if any, of an enrolled person.(4) The roll may contain such other information as the Board considers necessary or appropriate.
45. Correction of register and roll
(1) A person may apply to the Board to have an inaccurate or erroneous entry in the register or roll corrected and, if the Board is satisfied that the entry is inaccurate or erroneous, it must correct the register or roll accordingly.(2) No fee is payable for an application under subsection (1) .(3) The Board may require an applicant under subsection (1) to provide such further information or evidence as it considers necessary in order to consider the application.
46. Notice of change of name or address
A registered or enrolled nurse or a nurse whose right of practice is suspended must, within 30 days of changing his or her name, personal address or business address, if any, give the Board notice of the change and the new name or address.Penalty: Fine not exceeding 15 penalty units.
47. Inspection of register or roll
(1) A person may, on payment of the prescribed fee, inspect the register or roll at the office of the Board.(2) A person inspecting the register may, on payment of the prescribed fee, obtain a copy of or extract from the register or roll.(3) The Board may waive the payment of all or part of the prescribed fee for inspecting or obtaining a copy of or extract from the register or roll.
48. Publication of register or roll, &c.
(1) The Board may publish in the Gazette any one or more of the following:(a) a copy of the register or roll or part of the register or roll;(b) a notice of the granting of registration or enrolment to any person, including any conditions to which the registration or enrolment has been made subject;(c) a notice of the granting of an authorisation to any person, including any conditions to which the authorisation is subject;(d) a notice of the cancellation of an authorisation;(e) a notice of the removal from the register or roll of the name of any person;(f) a notice of the restoration to the register or roll of the name of any person;(g) a notice of the suspension of a person's right of practice or authorisation;(h) a notice of any action taken under section 64 in respect of a registered or enrolled person.(2) The Board may provide a person with a copy of a notice referred to in subsection (1) on payment of the prescribed fee.(3) The Board may waive the payment of all or part of the prescribed fee.
49. Protection of private information
Notwithstanding sections 47 and 48 –(a) a nurse's private address is not to appear in the register or roll as made available for public inspection or be published in the Gazette without that nurse's permission; and(b) the register or roll made available for public inspection need not include the information, or all of the information, referred to in section 43 (4) or 44 (4) ; and(c) a copy of the register or roll or part of the register or roll published in the Gazette need not include the information, or all of the information, referred to in section 43 (4) or 44 (4) .
50. Annual practising certificate fees
(1) In this section –due date means –(a) 31 August; or(b) if another date is prescribed – that date;enrolled nurse includes a person whose enrolment is suspended;registered nurse includes a person whose registration is suspended.(2) A registered or enrolled nurse who wishes to practise must, on or before the due date in each year –(a) pay the Board the prescribed practising certificate fee; and(b) give the Board any information it requires.(2A) A registered or enrolled nurse who pays the prescribed practising certificate fee after but within 30 days of the due date must pay the prescribed late fee.(3) The Board may waive the payment of all or part of the prescribed practising certificate fee or late fee.(4) Subject to subsections (5) and (6) , the Board must immediately issue a new practising certificate to each registered or enrolled nurse who, in any year –(a) pays the prescribed practising certificate fee on or before the due date; or(b) pays the prescribed practising certificate fee and late fee after but within 30 days of the due date.(5) The Board may refuse to issue the new practising certificate if it is not satisfied that the nurse –(a) complies with the relevant requirements specified in section 22(1)(b) , (c) and (d) and would, if applying to be registered or enrolled for the first time, be eligible to apply for that registration or enrolment; or(b) has adequate professional indemnification arrangements.(6) The Board must not issue a new practising certificate to a nurse who has not actively practised in the 5 year period immediately preceding the due date unless it is satisfied that the person complies with the relevant requirements specified in section 22(1)(b) , (c) and (d) and would, if applying to be registered or enrolled for the first time, be eligible to apply for that registration or enrolment.(7) The name of a registered or enrolled nurse who in any year fails to pay the prescribed practising certificate fee on or before the due date or the prescribed practising certificate fee and late fee within 30 days of the due date is to be removed from the register or, if applicable, the roll in accordance with section 51 .(8) The name of a registered or enrolled nurse who is refused the issue of a new practising certificate pursuant to subsection (5) or (6) is to be removed from the register or, if applicable, the roll in accordance with section 51 .(9) In a case to which subsection (8) applies, the Board must refund the prescribed practising certificate fee and, if applicable, the prescribed late fee.(10) For the purposes of this section, other than subsection (9) , a person whose obligation to pay a fee has been wholly or partially waived is taken to have paid that fee.
51. Removal from register or roll
(1) Subject to subsection (2) –(a) the Board may remove from the register or roll the name of a person who –(i) contravenes a condition subject to which the person is registered or enrolled; or(ii) fails to pay, within the time specified for payment, a fine imposed on the person under section 64 (1) (d) ; or(iii) fails to comply with a requirement made of that person under section 64 (1) (f) ; or(iv) fails to honour an undertaking given to the Board or Tribunal; and(b) the Board must remove from the register or roll the name of a person –(i) who dies; or(ii) who requests the Board to remove his or her name from the register or roll; or(iii) in respect of whom the Tribunal has made a decision under section 64 (1) (a) which has taken effect; or(iiia) who ceases to be registered or enrolled by virtue of section 50(7) ; or(iiib) who ceases to be registered or enrolled by virtue of section 50(8) ; or(iv) who is no longer entitled to be registered or enrolled; or(v) whose authority to practise under a foreign nursing law has been cancelled for any reason relating to the person's professional conduct or physical or mental capacity; or(vi) who has been registered or enrolled by reason of a false or misleading statement or declaration.(2) The Board must not remove a person's name from the register or roll under subsection (1) (a) or (1) (b) (iv) , (v) or (vi) without first affording that person a reasonable opportunity to be heard.(3) If the Board removes a living person's name from the register or roll it must immediately give the person notice of the removal.(4) A notice under subsection (3) is –(a) except in a case to which subsection (1) (b) (ii) applies – to specify the reasons for the removal; and(b) except in a case to which subsection (1)(b)(ii) , (iii) or (iiia) applies– to inform the affected person of his or her right of appeal.(5) The person ceases to be a registered or enrolled nurse when the giving of the notice is effected.(6) If the Board removes a person's name from the register or roll it may require that a specified period must elapse or that a specified condition must be fulfilled before that person may apply for registration or enrolment.
52. Persons taken off register or roll must surrender certificate
A person who is given notice by the Board that his or her name has been removed from the register or roll must surrender to the Board the certificate of registration or enrolment and any current practising certificate held by the person within 7 days after being given the notice or within such longer period as the Board may allow.Penalty: Fine not exceeding 15 penalty units and a daily fine not exceeding 1·5 penalty units.
53. Restoring name to register or roll
(1) Subject to this section, on payment of the prescribed practising certificate fee and prescribed restoration fee the Board must restore a person's name to the register or roll if –(a) the person previously requested the removal of his or her name under section 51 (1) (b) (ii) and requests that his or her name be restored to the register or roll; or(b) the person has had his or her name removed from the register or roll under section 51(1)(b)(iiia) .(2) The Board may waive the payment of all or part of the prescribed practising certificate fee or prescribed restoration fee.(3) The Board may refuse to restore a person's name to the register or roll if it is not satisfied that the person –(a) complies with the relevant requirements specified in section 22(1)(b) , (c) and (d) and would, if applying to be registered or enrolled for the first time, be eligible to apply for that registration or enrolment; or(b) has adequate professional indemnification arrangements.(4) If the Board refuses to restore a person's name to the register or roll it must, as soon as practicable, give the person notice of –(a) the refusal and the reasons for the refusal; and(b) the person's right of appeal.(5) If the Board restores a person's name to the register or roll it must, on request, issue the person with a new practising certificate.
(1) A copy of an entry in the register or roll purporting to be signed by the Executive Officer is evidence that the entry was duly made.(2) A certificate purporting to be signed by the Executive Officer and stating any one or more of the following matters is evidence of the matters stated:(a) a person specified in the certificate was or was not a registered or enrolled nurse on a date or during a period specified in the certificate;(b) the registration or enrolment of a person specified in the certificate was subject to a condition specified in the certificate on a date or for a period specified in the certificate;(c) the registration or enrolment, right to practise or authorisation of a person specified in the certificate was suspended on a date or for a period specified in the certificate;(d) the name of a person specified in the certificate was removed from the register or roll on a date or for a period specified in the certificate;(e) a person specified in the certificate was or was not the holder of a practising certificate or an authorisation on a date or during a period specified in the certificate;(f) the authorisation of a person specified in the certificate was subject to a condition specified in the certificate on a date or for a period specified in the certificate.
PART 4 - Discipline
Division 1 - Complaints
(1) A person who is aggrieved by the conduct of a nurse may complain to the Board.(2) A complaint may be made and dealt with under this Part even though the person who is the subject of the complaint has ceased to be a registered or enrolled nurse and, for that purpose, a reference in this Act to a nurse includes a reference to a person who has ceased to be registered or enrolled.(3) A complaint may be made or dealt with even though the right to practise or authorisation of the person who is the subject of the complaint was suspended at the time of the matter complained of.
56. Specific matters in respect of which complaints may be made
(1) Without limiting the matters in respect of which a complaint may be made, a person may complain that a nurse –(a) has been registered or enrolled, or granted an authorisation, by reason of a false or misleading statement or declaration; or(b) no longer holds, or is no longer entitled to hold, a qualification by reason of which the nurse was registered or enrolled or granted an authorisation; or(c) lacks sufficient physical capacity, mental capacity or competence to practise; or(d) is not entitled on other grounds to be registered or enrolled or to hold an authorisation; or(da) has practised without a practising certificate; or(db) has practised in a restricted practice area without authorisation; or(e) is guilty of professional misconduct.(2) Without limiting the matters that may constitute professional misconduct, a nurse is guilty of such misconduct if the nurse –(a) contravenes a provision of this Act; or(b) contravenes a foreign nursing law; or(c) contravenes a provision of the Nursing Code; or(d) contravenes a condition subject to which the nurse is registered or enrolled; or(e) . . . . . . . .(f) . . . . . . . .(g) contravenes a condition of an authorisation; or(h) fails to pay, within the time specified for payment, a fine imposed on the nurse under section 64 (1) (d) ; or(i) fails to comply with a requirement made of that nurse under section 64 (1) (f) ; or(j) fails to honour an undertaking given to the Board or Tribunal; or(k) is negligent or incompetent in nursing practice; or(l) behaves in a fraudulent or dishonest manner in nursing practice.
(1) A complaint is to –(a) be made in writing; and(b) contain particulars of the matter complained of; and(c) identify, if possible, the nurse against whom the complaint is being made or set out such information relating to the identity of the nurse as is known to the complainant; and(d) identify the complainant; and(e) be lodged with the Executive Officer.(2) The Executive Officer must ensure that a person who wishes to make a complaint is given such reasonable assistance as is necessary to enable that person to make the complaint in accordance with this section.(3) On receipt of a complaint, the Executive Officer must –(a) record the date on which the complaint was received; and(b) place the complaint before the Board without undue delay.(4) The Board may require the complainant to provide further particulars of the complaint.
57A. Division is subject to Health Complaints Act
This Division has effect subject to Part 7 of the Health Complaints Act 1995 .
57B. Complaints must be investigated
(1) Except as provided by sections 59 , 60 and 61 the Board must investigate each complaint made to it.(2) The Board, on its own motion, may also investigate any matter that it considers could be grounds for a complaint against a registered or enrolled nurse.(3) Section 55(2) and (3) has the same application to the Board's power under subsection (2) as that section has to a complaint.
Division 1A - Investigation of complaints
58. Preliminary investigation of complaints, &c.
(1) The Board may direct a committee, inspector or other person to conduct a preliminary investigation of –(a) a complaint; or(b) a matter that it considers could be grounds for a complaint against a registered or enrolled nurse.(2) In a case to which subsection (1) applies, the Board must –(a) give a notice setting out full particulars of the complaint or matter to the nurse concerned; and(b) allow the nurse to make submissions to the committee, inspector or person conducting the preliminary investigation.(3) The committee, inspector or person conducting the preliminary investigation must give the Board and the nurse concerned a written report of the findings of the preliminary investigation and any opinions based on those findings.
59. Referral of complaints, &c.
(1) The Board, after it has considered a complaint and, if applicable, the report on the preliminary investigation, must determine whether to refer the complaint to the Tribunal.(2) A complaint need not be referred to the Tribunal if the Board considers that –(a) the complaint is without foundation; or(b) the complaint is frivolous or vexatious; or(c) the matter complained of is unsubstantial; or(d) the matter complained of may not be sufficiently serious to warrant an inquiry.(3) The Board, on its own motion and, if applicable, after considering the report on any preliminary investigation, may refer to the Tribunal any matter that it considers could be grounds for a complaint against a registered or enrolled nurse.(4) . . . . . . . .
60. Certain complaints to be dismissed
The Board must dismiss a complaint if it considers that –(a) the complaint is without foundation or frivolous or vexatious; or(b) the matter complained of is unsubstantial.
61. Procedure for less serious complaints
(1) In this section,matter means –(a) a matter giving rise to a complaint against a nurse; or(b) a matter that the Board considers could be grounds for a complaint against a nurse.(2) If the Board considers that a matter may not be sufficiently serious to warrant an inquiry, it may, by notice, require the nurse concerned to –(a) appear before it to give an explanation of the matter; or(b) provide it with a written explanation.(3) If the matter relates to the physical or mental capacity of the nurse, the Board may further require the nurse to have a medical examination on the same terms as a medical examination required by the Tribunal.(4) A notice under subsection (2)(a) is to–(a) . . . . . . . .(b) set out particulars of the matter; and(c) state that the nurse is entitled to make submissions when appearing before the Board but is not entitled to be represented; and(d) state that the appearance before the Board is not open to the public; and(e) inform the nurse that he or she may request that the matter be referred directly to the Tribunal; and(f) inform the nurse of the other circumstances in which the matter may be referred to the Tribunal; and(g) specify the date, time and place at which the nurse is required to appear.(4A) A notice under subsection (2)(b) is to –(a) contain the same information as is specified in subsection (4)(b) , (e) and (f) in relation to a notice requiring a personal appearance; and(b) specify a date by which the nurse is required to provide the Board with the written explanation.(5) A notice may contain such other information as the Board considers necessary or expedient.(6) The date specified under subsection (4) (g) or subsection (4A)(b) is to be not less than 14 days after the date of giving the notice.(7) The Board is not to take any further action in respect of a matter if, after considering the explanation of the nurse concerned, it is not satisfied that the matter has been substantiated.(8) If the Board is satisfied, after considering the explanation, that the matter has been substantiated but that it is not sufficiently serious to warrant an inquiry, the Board may do either or both of the following:(a) caution or reprimand that nurse;(b) accept an undertaking from the nurse to take or refrain from taking specified action.(9) The Board must refer a matter to the Tribunal if–(a) the nurse concerned fails to appear before the Board as required by a notice under subsection (2)(a) or, before the date of appearance specified in the notice, requests in writing that the matter be so referred; or(ab) the nurse concerned fails to provide the Board with a written explanation as required by a notice under subsection (2)(b) or, before the date on which the explanation is required to be provided, requests in writing that the matter be so referred; or(b) in the course of giving an explanation of the matter the nurse concerned requests, orally or in writing, that the matter be so referred; or(c) after or in the course of considering an explanation of the matter the Board determines that the matter is sufficiently serious to warrant an inquiry; or(d) in a case to which subsection (8) applies– the nurse concerned disputes that the matter has been substantiated.(10) A meeting of the Board convened for the purposes of this section is not open to the public.
Division 2 - The Professional Review Tribunal
62. Establishment and constitution of Tribunal, &c.
(1) The Professional Review Tribunal is established.(2) The Board is to appoint as permanent members of the Tribunal –(a) one legal practitioner of not less than 10 years' standing; and(b) one person, who is not a legal practitioner or nurse, to represent the interests of persons who use the services provided by nurses.(3) The permanent member appointed under subsection (2) (a) is chairperson of the Tribunal.(4) The Tribunal, in respect of each inquiry it conducts, is to consist of 5 members, being –(a) the 2 permanent members; and(b) 3 nurses, who are not members of the Board, appointed by the Board for the purposes of that inquiry.(5) A nurse appointed to the Tribunal for the purposes of an inquiry is known as a special member.(6) A special member is to be a nurse who is considered by the Board to have skill, knowledge or experience that is relevant to the inquiry in respect of which he or she is appointed.(7) The Board is to appoint one of its employees to act as secretary to the Tribunal.(8) A person who is a member of the Tribunal does not incur any personal liability for any act done or purported or omitted to be done by the person in good faith for the purpose of administering or executing this Act.(9) Schedule 3 has effect with respect to the powers and procedures of the Tribunal.(10) Schedule 4 has effect with respect to the membership of the Tribunal.(11) Schedule 5 has effect with respect to the proceedings of the Tribunal.
62A. Alternate permanent members of Tribunal
(1) For the purposes of this Part, the Board may appoint an alternate member for a permanent member of the Tribunal.(2) An alternate permanent member must have the same qualifications as the permanent member for whom he or she is an alternate.(3) An alternate permanent member is to act as a permanent member of the Tribunal only if the permanent member for whom he or she is an alternate dies or only while that permanent member –(a) is absent from a hearing or meeting of the Tribunal; or(b) is incapable of acting as a permanent member.(4) Where an alternate permanent member acts as a permanent member of the Tribunal –(a) he or she may exercise all the powers of the member for whom he or she is an alternate; and(b) all things done or omitted to be done by the alternate permanent member are as valid, and have the same consequences, as if they had been done or omitted to be done by the permanent member for whom he or she is an alternate.
The Tribunal must conduct an inquiry into each complaint that is referred to it by the Board and each matter that is referred to it by the Board under section 59 (3) .
Division 3 - Action following inquiry
64. Actions that may be taken by Tribunal
(1) On concluding an inquiry, the Tribunal may take such one or such number of the following actions as it considers appropriate having regard to the subject of the inquiry and its findings:(a) have the defendant's name removed from the register or roll;(b) have the defendant's authorisation cancelled;(c) have the defendant's right of practice or authorisation suspended, totally or partially, for a period not exceeding 12 months;(d) impose on the defendant a fine not exceeding 20 penalty units;(e) impose on the defendant a condition subject to which the defendant may continue to engage in general practice or practise in a restricted practice area;(f) require the defendant to take or refrain from taking specified action;(g) caution or reprimand the defendant;(h) dismiss the complaint or, in a case to which section 59 (3) applies, exonerate the defendant.(2) In the case of an inquiry relating to a matter referred to in section 56 (1) (b) , the Tribunal must, unless it dismisses the complaint or exonerates the defendant, take at least–(a) the action specified in subsection (1) (a) if the matter relates to registration or enrolment; or(b) the action specified in subsection (1) (b) if the matter relates to an authorisation.(3) If the Tribunal imposes a fine under subsection (1) (d) , it must specify a period within which the fine is to be paid.(3A) If the Tribunal imposes a condition on the defendant under subsection (1)(e) , the Board has the same powers in relation to that condition as it has under section 30(3) and (4) in relation to a condition imposed at the time of registration or enrolment.(4) For the purposes of subsection (1) (f) , but without limiting the generality of that subsection, the Tribunal may require the defendant to do either or both of the following:(a) be subject to periodic supervision or inspection by a specified person;(b) undertake a rehabilitation program.(5) The Tribunal, as an alternative to taking action against a defendant under subsection (1) , may accept an undertaking from the defendant to take or refrain from taking specified action, either generally or within a specified period of time.
65. Costs and expenses of inquiries
(1) The Tribunal may, in addition to exercising its powers under section 64 , order the defendant to pay such costs and expenses of or arising from the inquiry as the Tribunal thinks fit within such period of time as the Tribunal by the order allows.(2) Subsection (1) does not apply if the Tribunal decides to dismiss the complaint against the defendant or, in a case to which section 59 (3) applies, exonerate the defendant.(3) If the Tribunal decides to dismiss the complaint or, in a case to which section 59 (3) applies, exonerate the defendant, it may, if it considers it fair to do so, order the Board to pay the costs and expenses or any part of the costs and expenses incurred by the defendant in respect of the inquiry.(4) The Board must comply with an order of the Tribunal under subsection (3) .(5) Any costs or expenses ordered to be paid under subsection (1) are recoverable as a debt due to the Board.
(1) When the Tribunal has decided what action to take under section 64 , it must give the Board and the defendant notice of the decision and the reasons for the decision.(2) The notice to the defendant is to –(a) except in a case to which section 64(1)(h) applies, inform the defendant of his or her right of appeal; and(b) set out particulars of any order as to costs made by the Tribunal under section 65 .(3) A decision of the Tribunal under section 64 (1) (a) , (b) , (c) , (d) , (e) , (f) or (g) does not take effect until –(a) the expiration of the period within which the defendant may lodge an appeal against the decision; or(b) if the defendant lodges an appeal against the decision– the decision is affirmed or varied or the appeal is withdrawn.(4) The period referred to in subsection (3) (a) is taken to have commenced when notice of the Tribunal's decision is given to the defendant.(4A) If a decision of the Tribunal under section 64(1)(c) takes effect, the defendant –(a) in the case of a partial suspension of a right of practice – ceases to be entitled to practise in the areas of practice to which the partial suspension applies until the period of suspension expires; and(b) in the case of a partial suspension of an authorisation – ceases to be entitled to practise in the areas of the relevant restricted practice area to which the partial suspension applies until the period of suspension expires.(5) If the Tribunal's decision takes effect, the Board may do any or all of the following:(a) give notice of the decision to such nursing registration authorities, the Australian Nursing Council and other bodies as the Board considers appropriate to notify;(b) give notice of the decision to the Secretary;(c) cause notice of the decision to be published in any professional publication related to nursing practice;(d) cause notice of the decision to be published in any newspaper;(e) cause notice of the decision to be published in the Gazette.
Division 4 - Suspension
67. Suspension of right of practice or authorisation
(1) The Board may suspend the right of practice or authorisation of a nurse for such period not exceeding 12 months as the Board in the circumstances considers appropriate if –(a) the nurse contravenes a condition subject to which the nurse is registered or enrolled or a condition of an authorisation; or(b) the nurse's right of practice under a foreign nursing law has been suspended for a reason relating to the nurse's professional conduct or physical or mental capacity; or(c) the nurse fails to pay, within the time specified for payment, a fine imposed under section 64 (1) (d) ; or(d) the nurse fails to comply with a requirement made of that nurse under section 64 (1) (f) ; or(e) the nurse fails to honour an undertaking given to the Board or Tribunal; or(f) the nurse contravenes a provision of the Nursing Code; or(g) the Board reasonably considers the suspension necessary for the purposes of inquiring into a complaint made against that nurse or inquiring into a matter that could be the subject of a complaint against that nurse; or(h) the Board considers that it is in the public interest to suspend the registration.(1A) The suspension may be –(a) a total suspension of the right of practice or authorisation; or(b) a partial suspension of the right of practice or authorisation, being suspension that applies only to certain areas of the practice of nursing specified by the Board.(2) The power of the Board to suspend a nurse's right of practice or authorisation under this section is in addition to the power of the Tribunal to have that nurse's right of practice or authorisation suspended under section 64 (1) (c) .(3) If the Board decides to suspend a nurse's right of practice or authorisation it may afford that nurse an opportunity to be heard but it is not required to do so.(4) If the Board decides to suspend a nurse's right of practice or authorisation it must make an appropriate note of the suspension and the reasons for the suspension in the register or roll and give the nurse notice of –(a) the suspension and the reasons for the suspension; and(ab) in the case of a partial suspension – the areas of practice to which the suspension applies; and(b) the nurse's right of appeal.(5) When the giving of the notice is effected in the case of a total suspension of a right of practice or authorisation, the nurse ceases to be entitled to practise or ceases to hold the authorisation, as the case may be, until the period of suspension specified in the notice expires or the suspension is revoked by the Board.(5A) When the giving of the notice is effected in the case of a partial suspension of a right of practice or authorisation, the nurse's entitlement to practise in the areas of practice specified in subsection (4)(ab) is suspended until the period of suspension specified in the notice expires or the suspension is revoked by the Board.(5B) Subsections (5) and (5A) have effect subject to any orders of the Supreme Court made on appeal.(6) A nurse whose right of practice or authorisation has been totally or partially suspended must, if directed in writing to do so by the Board, return the nurse's practising certificate to the Board within 7 days after being given that direction or within such longer period as the Board may allow.Penalty: Fine not exceeding 15 penalty units and a daily fine not exceeding 1·5 penalty units.(7) In a case to which subsection (6) applies, the Board –(a) if the suspension is a total suspension of a right of practice– may retain the certificate for the period of the suspension; and(b) if the suspension is of any other kind– must as soon as practicable issue the nurse concerned with an amended certificate or a fresh certificate with amended particulars.(8) If the Board suspends a nurse's right of practice or authorisation under this section it has and may exercise, if it considers that it is in the public interest to do so, the same power to give notice of the suspension as it has under section 66(5) in relation to a decision to which that section applies.(a) . . . . . . . .(b) . . . . . . . .(c) . . . . . . . .(d) . . . . . . . .(e) . . . . . . . .
If the Board suspends a nurse's right of practice or authorisation under section 67 it may, at any time and for any reason it considers sufficient, revoke the suspension.
Division 5 - Inspectors
(1) The Board may appoint an employee of the Board or another person to be an inspector for the purposes of –(a) investigating compliance with this Act or the Nursing Code; or(b) investigating complaints or matters that could be the subject of complaints.(2) The Board is to issue an inspector with an identity card, in a form approved by the Board, being a card bearing at least a recent photograph of the inspector, the inspector's name and signature and the common seal of the Board.(3) A person must, within 5 days of ceasing to be an inspector, return that person's identity card to the Board.Penalty: Fine not exceeding 5 penalty units.
(1) In this section –premises includes a vehicle or vessel;investigation means an investigation carried out by an inspector under section 69 (1) .(2) An inspector may, on production of his or her identity card –(a) enter any premises at any time with the consent of the occupier of those premises or enter any premises where a health service is provided if that place is open for entry; and(b) exercise all or any of the powers specified in section 71 with the consent of the occupier of those premises.(3) If an inspector considers on reasonable grounds that there is, or is likely to be, on any premises a document or thing that is, or is likely to be, relevant to an investigation being carried out by the inspector, and that it is not possible or reasonable in the circumstances to rely on the power in subsection (2) , the inspector may apply to a magistrate for a warrant.(4) A magistrate to whom an application under subsection (3) is made may issue a warrant if satisfied that –(a) the document or thing referred to in the application is, or is likely to be, relevant to the inspector's investigation; and(b) there are reasonable grounds for believing that the document or thing is, or is likely to be, on the premises referred to in the application; and(c) it will not be possible or reasonable in the circumstances for the inspector to rely on the power in subsection (2) .(5) Schedule 6 has effect with respect to a warrant issued under this section.(6) A warrant issued under this section may be made subject to any conditions the magistrate considers appropriate.(7) Subject to subsection (6) , a warrant issued under this section authorises the inspector named in the warrant to enter and search the premises specified in the warrant and exercise such of the powers specified in section 71 as are not expressly excluded by the magistrate who issued the warrant.(8) A person must not give, agree to give or offer to an inspector a gift, reward or other inducement to do or abstain from doing anything in relation to an investigation.Penalty: Fine not exceeding 25 penalty units.
71. Specific investigative powers of inspectors
(1) Subject to and for the purposes of section 70 (2) (b) and (7) , an inspector may exercise the following powers:(a) inspect and search the premises generally;(b) require the person apparently in charge of the premises to produce for inspection any document held at the premises;(c) inspect and take notes of or extracts from any such document;(d) make a copy of any such document;(e) ask questions of and require answers from persons on the premises;(f) take photographs;(g) open and inspect containers or packages which the inspector reasonably suspects are used for the purpose of, or in connection with, the provision of nursing services;(h) examine or test any equipment held on the premises;(i) require a person registered or enrolled or claiming to be registered or enrolled to produce a certificate of registration or enrolment or a practising certificate;(j) if the inspector reasonably suspects that this Act or the Nursing Code has been contravened, seize and, on furnishing a receipt, remove anything that in the reasonable opinion of the inspector is evidence of the contravention;(k) remove, on furnishing a receipt, any document found on the premises to the custody and control of the Board for as long as the Board considers necessary or expedient.(2) If the Board is satisfied that for legitimate reasons a person needs access to a document that has been removed from premises to the custody and control of the Board under subsection (1) (k) , the Board in its discretion may –(a) grant the person reasonable access to the document or to a copy of the document; or(b) provide the person with a copy or certified copy of the document; or(c) retain a copy of the document and return the original to the premises.
PART 5 - Appeals
(1) A person may appeal to the Supreme Court if the person is aggrieved by a decision of the Board to –(a) refuse to register or enrol the person; or(b) impose a condition on the person's registration or enrolment under section 27 (2) , whether or not the condition has been modified; or(c) remove the person's name from the register or roll, other than under section 51(1)(b)(ii) , (iii) or (iiia) ; or(d) refuse to restore the person's name to the register or roll under section 53 ; or(e) suspend the person's right of practice or authorisation under section 67 ; or(f) refuse to issue that person with a new practising certificate under section 50(5) or (6) ; or(g) refuse to grant the person an authorisation to practise in a restricted practice area; or(h) cancel, unless the person holds interim registration, the person's authorisation to practise in a restricted practice area.(1A) A person may appeal to the Supreme Court if the person is aggrieved by a decision of the Tribunal to take an action under section 64 in respect of that person.(2) The Board may appeal to the Supreme Court against –(a) a decision of the Tribunal under paragraph (h) of section 64 (1) ; or(b) any other decision of the Tribunal under section 64 (1) if the Board considers that the action to be taken pursuant to the decision is inadequate in the circumstances.(3) An appeal is to be made within 14 days after notice of the Board's or Tribunal's decision is given to the affected person.
(1) On hearing an appeal against a decision of the Board or Tribunal, the Supreme Court may –(a) affirm the decision; or(b) vary the decision; or(c) quash the decision.(2) If the Court quashes the decision it may, according to the circumstances of the case –(a) substitute for the decision it has quashed any decision that the Board or Tribunal would have had jurisdiction to make in those circumstances; or(b) remit the matter to the Board or Tribunal, with or without directions, for further hearing or consideration or for rehearing or reconsideration.(3) The Court may make any further order that it considers just in the circumstances of the case.
PART 6 - Offences
Division 1 - Public and professional safeguards. . . . . . . .
(1) A person who is not a registered or enrolled nurse must not hold himself or herself out, or allow himself or herself to be held out, as being a registered or enrolled nurse or as being in any way authorised or qualified to practise nursing.Penalty: Fine not exceeding 20 penalty units and a daily fine not exceeding 2 penalty units.(2) A person who does not hold a practising certificate must not hold himself or herself out, or allow himself or herself to be held out, as being in any way entitled to practise nursing.Penalty: Fine not exceeding 20 penalty units and a daily fine not exceeding 2 penalty units.(3) A person who does not hold an authorisation to practise in a restricted practice area must not hold himself or herself out, or allow himself or herself to be held out, as being in any way authorised to practise in that restricted practice area.Penalty: Fine not exceeding 20 penalty units and a daily fine not exceeding 2 penalty units.
76. Unauthorised use of certain titles
A person who is not a registered or enrolled nurse must not practise a profession or trade under any one or more of the following titles:. . . . . . . .(a) nurse;(b) registered nurse;(c) enrolled nurse;(d) certified nurse;(e) licensed nurse;(f) qualified nurse;(g) authorised nurse;(h) midwife;(i) psychiatric nurse;(j) such other title as may be prescribed.Penalty: Fine not exceeding 10 penalty units and a daily fine not exceeding 1 penalty unit.
78. Failure to notify Board of civil claims
(1) A nurse must, within 14 days after any proceedings claiming damages or other compensation for alleged negligence in nursing practice are commenced against that nurse, give the Board notice of the proceedings including particulars of the claim.Penalty: Fine not exceeding 10 penalty units.(2) A nurse must, within 14 days after any proceedings claiming damages or other compensation for alleged negligence by the nurse in nursing practice are withdrawn or settled, or a court or other tribunal makes an order in respect of any such proceedings, give the Board notice of the withdrawal, settlement or order.Penalty: Fine not exceeding 10 penalty units.
Division 2 - General offences
(1) A person must not make or produce, or cause to be made or produced, a false or misleading statement, either orally or in writing, in connection with –(a) an application, assessment or inquiry; or(b) a preliminary investigation into a complaint; or(c) an investigation carried out by an inspector.Penalty: Fine not exceeding 20 penalty units.(2) A person must not forge or change –(a) a certificate of registration or enrolment; or(b) an interim certificate of registration or enrolment; or(c) a practising certificate; or(d) an interim practising certificate.Penalty: Fine not exceeding 20 penalty units.(3) A person must not forge or change a degree, diploma or other evidence of qualifications for registration under this Act.Penalty: Fine not exceeding 20 penalty units.
A person must not obstruct, hinder, threaten or intimidate another person –(a) in the exercise by that other person of a power conferred by this Act; or(b) in the performance of a duty imposed on that other person by this Act.Penalty: Fine not exceeding 20 penalty units.
81. Offences relating to assessments and inquiries, &c.
(1) A person must not, without reasonable excuse –(a) fail to attend an assessment or inquiry as required by summons; or(b) fail in an assessment or inquiry to comply with the requirement to affirm or be sworn; or(c) fail to produce a document when required by a committee of assessors or the Tribunal to do so; or(d) fail to answer questions required by a committee of assessors or the Tribunal to be answered.Penalty: Fine not exceeding 20 penalty units and a daily fine not exceeding 2 penalty units.(2) A person may be required by a committee of assessors or the Tribunal to answer a question or produce a document notwithstanding that the answer to the question or the contents of the document may tend to incriminate that person.(3) If in an assessment or inquiry a person objects to answering a question or producing a document on the grounds that to do so may tend to incriminate that person, the answer to the question or the contents of the document are not admissible in evidence in any other proceedings in respect of that person, other than proceedings in respect of an offence under section 79 or in respect of an appeal under Part 5 .
82. Failure to comply with orders
(1) A person must not –(a) fail to leave the hearing of an assessment when ordered to do so by the committee conducting the assessment; or(b) fail to leave the hearing of an inquiry when ordered to do so by the Tribunal; or(c) fail to leave a meeting of the Board when ordered to do so by the Board.Penalty: Fine not exceeding 20 penalty units.(2) A person must not –(a) report or otherwise disclose any proceedings of a committee of assessors or the Tribunal contrary to an order of that committee or the Tribunal; or(b) report or otherwise disclose any information in respect of the proceedings of a committee of assessors or the Tribunal contrary to an order of that committee or the Tribunal.(3) A person must not –(a) report or otherwise disclose any proceedings of a meeting of the Board contrary to an order of the Board; or(b) report or otherwise disclose any information in respect of a meeting of the Board contrary to an order of the Board.
PART 7 - Miscellaneous
Division 1 - Obligations to provide information
83. Medical practitioners' notices relating to fitness to practise
(1) In this section, prescribed instrument means –(a) an initial order, a continuing care order or a community treatment order under the Mental Health Act 1996 ; or(b) . . . . . . . .(c) a medical recommendation within the meaning of the Alcohol and Drug Dependency Act 1968 .(2) A registered medical practitioner who signs a prescribed instrument in respect of a person who the registered medical practitioner knows or believes to be a registered or enrolled nurse must, as soon as practicable after so signing, give notice to the Board of that fact.Penalty: Fine not exceeding 20 penalty units.
84. Provision of information by bodies corporate
(1) A body corporate that provides nursing services or causes or allows nursing services to be provided in its name or on its behalf must, if the Board by notice requires it to do so, give the Board any or all of the following within the time provided by the notice:(a) a copy of its memorandum and articles of association;(b) any information required by the notice concerning its membership, shareholdings, officers or employees;(c) any other information required by the notice concerning that body corporate's structure, management or operations.Penalty: Fine not exceeding 40 penalty units and a daily fine not exceeding 4 penalty units.(2) A registered or enrolled nurse must, if the Board by notice requires that nurse to do so, give the Board, within the time provided by the notice, such information as is specified in the notice regarding any body corporate of which that nurse is a member.Penalty: Fine not exceeding 20 penalty units and a daily fine not exceeding 2 penalty units.
85. Employer notices of misconduct or incapacity
A person who employs a nurse must provide a written report to the Board, and that nurse, of circumstances where the nurse's employment is terminated or suspended because of alleged or actual misconduct or physical or mental incapacity.Penalty: Fine not exceeding 20 penalty units.
Division 2 - Administrative and legal
(1) A document may be given to the Board, the Tribunal or a committee –(a) by leaving it at, or sending it by post to, the Board's address; or(b) by sending it by way of facsimile transmission to the Board's facsimile number.(2) A document may be given to another person by –(a) in the case of an individual –(i) handing it to the person; or(ii) leaving it at, or sending it by post to, the person's postal or residential address or place of business or employment last known to the giver of the document; or(iii) sending it by way of facsimile transmission to the person's facsimile number; and(b) in the case of another person –(i) leaving it at, or sending it by post to, the person's principal or registered office or principal place of business; or(ii) sending it by way of facsimile transmission to the person's facsimile number.(3) A document that is posted to a person is taken not to have been given to the person until the time when it would be delivered in the ordinary course of post.
(1) The common seal of the Board is to be kept and used as authorised by the Board.(2) All courts and persons acting judicially must take judicial notice of the imprint of the common seal on a document and presume that it was duly sealed by the Board.
In any proceedings, unless evidence is given to the contrary, proof is not required of –(a) the constitution of the Board, the Tribunal or a committee; or(b) any resolution or decision of the Board, the Tribunal or a committee; or(c) the appointment of any member of the Board, the Tribunal or a committee; or(d) the presence of a quorum at any meeting of the Board, the Tribunal or a committee.
89. Evidence of facts found in other proceedings
A finding of fact relating to the conduct of a nurse made by a court or other tribunal in any proceedings to which that nurse is a party, whether in this State or elsewhere, is evidence of that fact in any proceedings under this Act.
90. Appropriation of fees, penalties and fines
(1) All fees payable and all penalties imposed and recovered under this Act are to be paid to the Board.(2) A fee payable under this Act may be recovered as a debt due to the Board.(3) A fine imposed on a person under section 64 (1) (d) may be recovered as a debt due to the Board.
91. No right of recovery by unregistered or unenrolled person, &c.
(1) A person is not entitled to recover a fee or other remuneration for a nursing service that he or she has provided on his or her own account unless he or she –(a) was registered or enrolled, and the holder of a practising certificate, at the time the service was provided; and(b) if the service provided was in a restricted practice area – held an authorisation to practise in that restricted practice area at the time the service was provided.(2) A body corporate that provides nursing services is not entitled to recover a fee or other remuneration for or in connection with a nursing service provided in its name or on its behalf unless the service was provided by a nurse who –(a) was registered or enrolled, and the holder of a practising certificate, at the time the service was provided; and(b) if the service provided was in a restricted practice area – held an authorisation to practise in that restricted practice area at the time the service was provided.(3) In an action for the recovery of a fee or other remuneration for a nursing service it is sufficient to state in the particulars of claim or demand the words "for nursing services".
92. Punishment of conduct constituting an offence
If conduct that constitutes an offence against this Act is also grounds for action under section 61 , 64 or 67 –(a) the taking of the action is not a bar to conviction and punishment for the offence; and(b) conviction and punishment for the offence is not a bar to the taking of the action under this Act.
93. Offences by bodies corporate
(1) If a body corporate commits an offence against this Act, each person concerned in the management of that body corporate is taken also to have committed the offence and may be convicted of the offence unless the person proves that the act or omission constituting the offence took place without that person's knowledge or consent.(2) A person referred to in subsection (1) may be convicted of an offence against this Act whether or not the body corporate is charged with or convicted of the offence.
94. Act does not prohibit certain practices
Nothing in this Act prohibits –(a) a person from rendering assistance in an emergency; or(b) a registered nurse from engaging in psychiatric nursing without an authorisation to do so if that nurse is under the supervision of a registered nurse who does hold such an authorisation; or(c) a person who is registered or enrolled under a foreign nursing law from assisting in the retrieval of organs or tissue for transplanting to a person elsewhere, from retrieving or escorting a patient to or from the State or from assisting in similar emergencies or special circumstances; or(d) a midwifery student under the supervision of a registered medical practitioner or midwife from providing care to a woman in childbirth; or(e) a student in an accredited course in nursing from engaging in nursing practice under supervision in accordance with and for the purposes of that course.
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , the regulations may prescribe any matters necessary for or incidental to the conduct of the elections referred to in section 6 (1) (b) .(3) Regulations made under this Act may –(a) apply generally or be limited in their application by reference to specified exemptions or specified factors; and(b) apply differently according to differentfactors, limitations or restrictions of a specified kind; and(c) authorise any matter to be from time to time determined, applied or regulated by the Board or Tribunal; and(d) apply, adopt or incorporate, with or without modification, any publication as in force from time to time.(4) Regulations made under this Act may –(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and(b) in respect of any such offence, provide for the imposition of a fine not exceeding 25 penalty units and, in the case of a continuing offence, a further fine not exceeding 2·5 penalty units for each day during which the offence continues.(5) Regulations made under this Act may contain provisions of a savings or transitional nature consequent on the enactment of this Act.(6) A provision of a regulation made pursuant to subsection (5) may, if the regulation so provides, take effect on the date referred to in section 2 (2) or a later date.
Division 3 - Consequential and transitional
The Nursing Act 1987 is repealed.
The Acts specified in Schedule 7 are amended as set out in that Schedule.
98. Savings and transitional provisions
The savings and transitional provisions set out in Schedule 8 have effect.
Until fees are prescribed for the purposes of this Act, the fees specified in Schedule 9 are the fees that are payable under this Act in respect of the various matters to which they respectively relate.. . . . . . . .
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Community and Health Services; and(b) the Department responsible to the Minister for Community and Health Services in relation to the administration of this Act is the Department of Community and Health Services.
SCHEDULE 1 - Provisions with Respect to Membership of Board
1. Term of office(1) A member is appointed for such term, not exceeding 3 years, as is specified in the member's instrument of appointment.(2) . . . . . . . .(3) A member may serve any number of terms but may not serve more than 2 terms in succession.
2. Holding other officeThe holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office is not disqualified from –(a) holding that office and also the office of a member; or(b) accepting any remuneration payable to a member.
3. Remuneration of membersA member is entitled to be paid such remuneration, including travelling and subsistence allowances, as the Minister determines.
4. Vacation of office(1) A member vacates office if the member –(a) dies; or(b) resigns; or(c) is removed from office under subclause (2) or (3) ; or(d) ceases to be qualified for office by virtue of subclause (4) .(2) The Governor may remove a member from office if the member –(a) is absent from 3 consecutive meetings of the Board without the permission of the other members of the Board; or(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or(c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for a period exceeding 12 months; or(d) fails, without reasonable excuse, to comply with the member's obligation under clause 5 of Schedule 2 ; or(e) is convicted of an offence against this Act.(3) The Governor may remove a member from office if satisfied that the member is unable to perform the duties of the office competently.(4) A member referred to in section 6 (1) (a) or (b) vacates office if he or she ceases to be registered or enrolled.
5. Chairperson may resign but remain a memberThe chairperson may resign from that office but remain a member.
6. Filling of vacanciesIf the office of a member becomes vacant, the Governor may appoint a person to the vacant office for the remainder of the term of the member who vacated the office.
7. Validity of proceedings, &c.(1) An act or proceeding of the Board or of a person acting under the direction of the Board is not invalid by reason only that at the time when the act or proceeding was done, taken or commenced there was a vacancy in the membership of the Board.(2) An act or proceeding of the Board or of a person acting under the direction of the Board is valid even if –(a) the appointment of a member of the Board was defective; or(b) a person appointed as a member of the Board was disqualified from acting as, or incapable of being, such a member.
SCHEDULE 2 - Provisions with Respect to Meetings of Board
1. Convening of meetingsA meeting of the Board may be convened by the chairperson or by any 3 members.
2. Procedure at meetings(1) Four members form a quorum at any duly convened meeting of the Board.(2) Any duly convened meeting of the Board at which a quorum is present is competent to transact any business of the Board.(3) Questions arising at a meeting of the Board are to be determined by a majority of votes of the members present and voting.(4) In the event of an equality of votes on a question arising at a meeting of the Board, the question stands adjourned until its next meeting.
3. Who presides at meetings(1) The chairperson is to preside at all meetings of the Board at which the chairperson is present.(2) If the chairperson is not present at a meeting of the Board, a member elected by the members present is to preside at that meeting.
4. MinutesThe Board must keep accurate minutes of its meetings.
5. Disclosure of interest(1) If a member has or acquires an interest (whether pecuniary or otherwise) that would conflict with the proper performance of the member's functions in relation to a matter being considered or about to be considered by the Board, the member must disclose the nature of that interest at a meeting of the Board.(2) A disclosure under subclause (1) is to be recorded in the minutes and the member must not, unless the Board exclusive of that member determines otherwise –(a) be present during any deliberations of the Board in relation to that matter; or(b) take part in any decision of the Board in relation to that matter.
6. Meetings to be open to public(1) In this clause, meeting does not include a meeting convened for the purposes of section 59 or 61 .(2) Except as provided in subclause (3) , a meeting of the Board is to be open to the public.(3) The Board may do either or both of the following at a meeting if it considers that there are compelling grounds to do so:(a) make an order excluding any person from the meeting;(b) make an order prohibiting the reporting or other disclosure of all or any of the proceedings at the meeting or prohibiting the reporting or other disclosure of particular information in respect of the meeting.(4) Without limiting the range of grounds that may be relevant for the purposes of subclause (3) , the Board may exercise its power under that subclause if –(a) it is dealing with privileged information or information that has been communicated to the Board in confidence; or(b) it is dealing with information concerning the personal affairs, finances or business arrangements of an applicant or of a registered or enrolled nurse; or(c) the disclosure of the proceedings or the information may be unfairly prejudicial to the reputation of a registered or enrolled nurse or any other person.
7. General procedures(1) Subject to this Schedule, the procedure for convening the Board and conducting its business is as determined by the Board.(2) The Board may permit members to participate in a particular meeting by a telephone or other means of communication.(3) A member who participates in a meeting under a permission granted under subclause (2) is taken to be present at the meeting.(4) The Board may allow a person to attend a meeting for the purpose of advising or informing it on any matter.
8. Report to MinisterThe Board, if requested to do so by the Minister, must furnish the Minister with any information the Minister may require in relation to the proceedings of the Board.
SCHEDULE 3 - Powers and Procedures of Committees of Assessors and the Tribunal
Sections 25 (3) and 62 (9)
1. InterpretationIn this Schedule –committee means a committee of assessors;proceedings includes assessments and inquiries.
2. PowersA committee or the Tribunal may –(a) summon any person to appear before it to give evidence and produce any document specified in the summons; and(b) require any person appearing before it to produce any document; and(c) require any person appearing before it to give evidence on oath or affirmation; and(d) require any person appearing before it to answer questions; and(e) proceed with and determine any proceedings notwithstanding the absence of a person who has been summoned to appear; and(f) adjourn the hearing of any proceedings from time to time and from place to place.
3. Requirements of summons(1) A summons to a nurse who is the subject of an inquiry is to –(a) set out particulars of the matter that the inquiry relates to; and(b) state that the nurse is entitled to be represented by a legal practitioner or other person in the inquiry; and(c) state that the proceedings will be open to the public unless the Tribunal orders otherwise; and(d) specify the date, time and place at which the nurse is required to appear.(2) The summons may contain such other information as the Tribunal considers necessary or appropriate.(3) The date specified in subclause (1) (d) is to be not less than 14 days after the date on which the summons is served.
4. ProceduresA committee or the Tribunal –(a) must conduct its proceedings with as little formality and with as much expedition as a proper consideration of the matter before it permits; and(b) is not bound by the rules of evidence; and(c) may inform itself on any matter in any way it considers appropriate; and(d) must observe the rules of natural justice.
5. Medical examinations(1) In this clause, medical examination includes an examination of the physical, psychological and mental capacities of a person.(2) A committee or the Tribunal, by notice, may require an applicant or defendant to have a medical examination at the Board's expense.(3) Notwithstanding subclause (2) , the Tribunal must not require a defendant to have a medical examination unless, having regard to the relevant inquiry, it is reasonable to require that examination.(4) A notice under subclause (2) is to specify –(a) the name of the practitioner who is to carry out the medical examination; and(b) the date, time and place of the medical examination.(5) The time and place specified for a medical examination must be reasonable.(6) The practitioner who carries out the medical examination must provide the committee or the Tribunal, and the person examined, with a written report of the results of that examination.
6. Proceedings to be open to public(1) Except as provided in subclause (2) , the proceedings of a committee or the Tribunal are to be open to the public.(2) Where a committee or the Tribunal is hearing any proceedings the committee or Tribunal may, on the application of a party to the proceedings or on its own motion, do either or both of the following if it considers that there are compelling grounds to do so:(a) make an order excluding any person from the hearing;(b) make an order prohibiting the reporting or other disclosure of all or any of the proceedings or prohibiting the reporting or other disclosure of particular information in respect of the proceedings.(3) Without limiting the range of grounds that may be relevant for the purposes of subclause (2) , a committee or the Tribunal may exercise its power under that subclause if –(a) it is dealing with privileged information or information that has been communicated to it in confidence; or(b) it is dealing with information concerning the personal affairs, finances or business arrangements of an applicant or of a registered or enrolled nurse; or(c) the disclosure of the proceedings or the information may be unfairly prejudicial to the reputation of a registered or enrolled nurse or any other person.
7. Representation, &c.(1) An applicant is entitled to attend an assessment and to be represented by a legal practitioner or any other person.(2) The costs of such representation are to be met by the applicant.(3) A defendant is entitled to attend an inquiry and to be represented by a legal practitioner or any other person.(3A) In an inquiry, the Board is entitled to be represented by a legal practitioner or any other person.(4) The Board, at its own expense, may appoint a legal practitioner to assist a committee or the Tribunal in conducting any proceedings.(5) The Secretary may –(a) become a party to any proceedings; and(b) be represented in the proceedings by an employee of the Department.
SCHEDULE 4 - Provisions with Respect to Membership of Tribunal
1. InterpretationIn this Schedule –meeting includes proceedings being conducted by the Tribunal;member means a member of the Tribunal, and includes the chairperson.
2. Term of office, &c.(1) A permanent member is to be appointed for such period, not exceeding 2 years, as is specified in the member's instrument of appointment.(2) A permanent member may serve any number of terms but may not serve more than 2 terms in succession.(3) A special member is to be appointed for the duration of the inquiry to which the member's appointment relates.(4) There is no limit to the number of times a person may be appointed as a special member.
3. Holding other officeThe holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office is not disqualified from –(a) holding that office and also the office of a member; or(b) accepting any remuneration payable to a member.
4. Remuneration of members(1) A permanent or special member is entitled to be paid such remuneration, including travelling and subsistence allowances, as the Board in either case determines and any such remuneration is to be paid by the Board.(2) A member who is a State Service officer or State Service employee is not entitled to remuneration under subclause (1) except with the approval of the Minister administering the State Service Act 2000 .
5. Vacation of office(1) A member, including an alternate permanent member, vacates office if he or she–(a) dies; or(b) resigns; or(c) is removed from office under subclause (2) or (3) ; or(d) ceases to be qualified for office by virtue of subclause (4) , (5) or (6) .(1A) A member who is an alternate permanent member is also taken to have vacated office if –(a) the appointment of the permanent member for whom he or she is an alternate expires and is not renewed; or(b) the permanent member for whom he or she is an alternate vacates office under this clause, except by reason of death; or(c) in a case where the alternate permanent member is acting in office following the death of the permanent member for whom he or she is an alternate, a new permanent member is appointed to replace the deceased permanent member.(2) The Board may remove a member from office if the member –(a) being a permanent member, is absent from a meeting of the Tribunal convened to deal with a particular inquiry without the permission of the other members of the Tribunal as it is constituted for the purposes of that inquiry; or(b) being a special member, is absent from a meeting of the Tribunal convened to deal with the inquiry to which the special member's appointment relates without the permission of the other members of the Tribunal as it is constituted for the purposes of that inquiry; or(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or(d) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for a period exceeding 12 months; or(e) fails, without reasonable excuse, to comply with the member's obligations under clause 6 of Schedule 5 ; or(f) is convicted of an offence against this Act.(3) The Board may remove a member from office if satisfied that the member is unable to perform the duties of the office competently.(4) The permanent member appointed under section 62 (2) (a) vacates office if he or she ceases to be a legal practitioner.(5) The permanent member appointed under section 62 (2) (b) vacates office if he or she becomes a nurse or legal practitioner.(6) A special member vacates office if he or she ceases to be registered or enrolled.
6. Filling of vacancies(1) If the office of a permanent member becomes vacant, the Board may appoint a person to the vacant office for the remainder of that member's term of office.(2) The person appointed to a vacant office pursuant to subclause (1) is –(a) in the case of the office referred to in section 62 (2) (a) – to be a legal practitioner of not less than 10 years' standing; and(b) in the case of the office referred to in section 62 (2) (b) – not to be a nurse or legal practitioner.
7. Validity of proceedings, &c.An act or proceeding of the Tribunal or of a person acting under the direction of the Tribunal is valid even if –(a) the appointment of a member of the Tribunal was defective; or(b) a person appointed as a member of the Tribunal was disqualified from acting as, or incapable of being, such a member.
SCHEDULE 5 - Provisions with Respect to Proceedings of Tribunal
1. Convening the TribunalThe Tribunal, as constituted for the purposes of an inquiry, may be convened by –(a) the chairperson; or(b) any 2 members.
2. Constitution of Tribunal and effect of vacancies(1) Subject to this clause and clause 6 , the Tribunal is not competent to take any action in respect of an inquiry unless each of the 2 permanent members, and each of the 3 special members appointed for the purposes of that inquiry, is present.(2) If one of the special members constituting the Tribunal for the purposes of an inquiry vacates office for any reason before the inquiry is completed, the inquiry may be continued and completed by the remaining 4 members.(3) If more than one of the special members constituting the Tribunal for the purposes of an inquiry vacates office for any reason before the inquiry is completed, the inquiry is terminated.(4) If an inquiry is terminated by virtue of subclause (3) , the Tribunal may be reconstituted for the purposes of conducting a new inquiry on the same matter.(5) For the purposes of this clause, an inquiry is taken to have been completed once the Tribunal has made a decision under section 64 .
3. Voting(1) Questions arising for determination by the Tribunal are to be determined by a majority of votes of the members present and voting.(2) In the event of an equality of votes on a question arising for determination by the Tribunal, the question stands adjourned until it is next convened.(3) The vote of a special member is equal to the vote of a permanent member.
4. ChairpersonThe chairperson is to preside over all proceedings of the Tribunal.
5. MinutesThe Tribunal must keep –(a) accurate minutes of its meetings; and(b) a verbatim record of each hearing it conducts in the course of an inquiry.
6. Disclosure of interest(1) If a member has or acquires an interest (whether pecuniary or otherwise) that would conflict with the proper performance of the member's functions in relation to a matter being considered or about to be considered by the Tribunal, the member must disclose the nature of that interest at a meeting of the Tribunal.(2) A disclosure under subclause (1) is to be recorded in the minutes and the member must not, unless the Tribunal exclusive of that member determines otherwise –(a) be present during any deliberations of the Tribunal in relation to that matter; or(b) take part in any decision of the Tribunal in relation to that matter.
7. General proceduresSubject to this Schedule and Schedule 3 , the procedure for convening the Tribunal and conducting its business is as determined by the Tribunal.
SCHEDULE 6 - Provisions with Respect to Warrants
1. Applications for warrants(1) An application for a search warrant is to be made in writing.(2) A magistrate is not to issue a warrant unless –(a) the application for the warrant sets out the grounds for seeking the warrant; and(b) the applicant for the warrant has given the magistrate, either orally or in writing, any further information the magistrate requires concerning the grounds for seeking the warrant; and(c) the information given by the applicant is verified before the magistrate on oath or by affidavit.
2. Record of proceedings before magistrateA magistrate who issues a warrant is to cause a record to be made of all relevant particulars of the grounds the magistrate has relied on to justify the issue of the warrant.
3. Duty to show warrants(1) In this clause, occupier includes a person in charge of premises.(2) An inspector executing a warrant is to produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier.
4. Assistance in executing warrantsA person may execute a search warrant using such assistance as the person considers necessary.
5. Expiry of warrantsA warrant ceases to have effect –whichever first occurs.(a) on the date specified in the warrant as the date on which it ceases to have effect; or(b) if it is withdrawn before that date by the magistrate who issued the warrant; or(c) when it is executed; or(d) if the person to whom it is issued ceases to be an inspector –
6. Reports to magistrates on execution of warrants, &c.(1) The inspector to whom a warrant is issued is to furnish a report in writing to the magistrate who issued the warrant –(a) stating whether or not the warrant has been executed; and(b) if the warrant has been executed – setting out briefly the result of the execution of the warrant, including a brief description of anything seized; and(c) if the warrant has not been executed – setting out briefly the reasons why the warrant has not been executed.(2) A report with respect to a warrant is to be made within the period of 10 days immediately after the execution of the warrant or the expiry of the warrant, whichever first occurs.
7. Death, absence, &c., of magistrate who issued warrantIf the magistrate who issued a warrant has died, has ceased to be a magistrate, or is absent, a report required to be furnished to that magistrate is to be furnished to another magistrate.
8. Defects in warrantsA warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.
SCHEDULE 7 - Consequential AmendmentsThe amendments effected by this Schedule have been incorporated into the authorised version of the following Acts:
(a) Health (Regional Boards) Act 1991 ;(b) HIV/AIDS Preventive Measures Act 1993 ;(c) Human Tissue Act 1985 ;(d) Jury Act 1899 ;(e) Perinatal Registry Act 1994 ;(f) Physiotherapists' Registration Act 1951 ;(g) Podiatrists Registration Act 1995 ;(h) Poisons Act 1971 ;(i) Prison Act 1977 ;(j) Public Health Act 1962 ;(k) Road Safety (Alcohol and Drugs) Act 1970 ;(l) Therapeutic Goods and Cosmetics Act 1976 ;(m) Workers Rehabilitation and Compensation Act 1988 .
SCHEDULE 8 - Savings and Transitional Provisions
1. InterpretationIn this Schedule –commencement day means the day proclaimed under section 2 (2) ;former Board means the Nursing Board of Tasmania as constituted under the repealed Act ;repealed Act means the Nursing Act 1987 ;State service employee means an employee within the meaning of the Tasmanian State Service Act 1984 ;transferred employee means a person who becomes an employee of the Board by the operation of this Schedule.
2. BoardThe appointment of a person who was a member of the former Board immediately before the commencement day is terminated but that person may, if qualified, be appointed or elected as a member of the Board under this Act.
3. Transfer of employees and rights(1) On the commencement day –(a) the Board becomes the employer of the State service employees who, immediately before the commencement day, substantively occupied the following State service positions under the Tasmanian State Service Act 1984 :(i) SSP 260045;(ii) SSP 630968;(iii) SSP 630975;(iv) SSP 260107; and(b) each of those State service employees is taken to have been employed under section 13 ; and(c) each of those State service employees ceases to be a State service employee and the Tasmanian State Service Act 1984 ceases to apply to that employee.(2) A transferred employee –(a) is taken to have been employed by the Board for the same remuneration as he or she was receiving immediately before the commencement day; and(b) except where an award otherwise provides, retains all existing and accruing rights relating to leave as if service as an employee of the Board were a continuation of his or her service under the Tasmanian State Service Act 1984 ; and(c) may claim those rights against the Board.(3) Notwithstanding section 13 (7) –(a) the Board is a State authority for the purposes of the Retirement Benefits Act 1993 in relation to a transferred employee; and(b) the Board is taken to have elected under section 13 (6) in respect of a transferred employee to participate in the superannuation schemes provided by and under that Act.
4. Executive OfficerThe transferred employee who, immediately before the commencement day, was the Registrar of Nurses under the repealed Act is to act as, and may exercise all the powers of, the Executive Officer under this Act.
5. ValidationAll acts, matters or things done or omitted to be done by, or done or suffered in relation to, the former Board before the commencement day have, on and after that day, the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the Board.
6. ProceedingsAny proceedings that, immediately before the commencement day, might have been brought or continued by or against the former Board may be brought or continued by or against the Board.
7. Assets and liabilitiesOn the commencement day, all assets and liabilities of the former Board vest in and become assets and liabilities of the Board.
8. Bank accounts(1) A bank account kept in the name of the former Board immediately before the commencement day is taken to be a bank account of the Board.(2) The Treasurer must, within 30 days of the commencement day, pay to the Board an amount equal to the aggregate amount that, immediately before that day, stood to the credit of the accounts, if any, kept in the Special Deposits and Trust Fund in the name of or for the purposes of the former Board or otherwise for the purposes of the repealed Act .
9. Continuation of register and roll(1) The register kept by the Registrar of Nurses under section 8 (2) of the repealed Act is taken to be part of the register for the purposes of this Act.(2) The roll kept by the Registrar of Nurses under section 8 (3) of the repealed Act is taken to be part of the roll for the purposes of this Act.
10. Accredited coursesAn approved course within the meaning of the repealed Act is, unless the Board determines otherwise, taken to be an accredited course in nursing education for the purposes of this Act.
11. Application for registration or enrolmentAn application for registration or enrolment made under the repealed Act and not determined by the former Board immediately before the commencement day is to be determined by the Board as if it were an application for registration or enrolment under this Act.
12. Continuation of registration and enrolment(1) A person who, immediately before the commencement day, was registered under the repealed Act is taken to be registered under and subject to this Act on the same conditions and with the same limitations, if any, as applied to the person's registration under the repealed Act .(2) A person who, immediately before the commencement day, was enrolled under the repealed Act is taken to be enrolled under and subject to this Act on the same conditions and with the same limitations, if any, as applied to the person's enrolment under the repealed Act .(3) Subclauses (1) and (2) apply to a registration or enrolment even if, immediately before the commencement day, that registration or enrolment was suspended under the repealed Act but those subclauses are not to be taken as revoking or reducing any period of suspension to which that former registration or enrolment was subject immediately before that day.
13. Interim registration or enrolment(1) Notwithstanding the repeal of the repealed Act by this Act, a provisional registration or enrolment that was in force under the repealed Act immediately before the commencement day remains in force as an interim registration or enrolment under this Act until the first of the following events occurs:(a) the person so holding the interim registration or enrolment applies for and is granted registration or enrolment as a nurse under this Act;(b) the interim registration or enrolment is cancelled by the Board;(c) the expiration of a period of 3 months from the day on which the interim registration or enrolment was granted, as provisional registration or enrolment, under the repealed Act .(2) For the purposes of subclause (1) , the provisional practising certificate issued under section 14 (3) of the repealed Act in respect of the provisional registration or enrolment is, notwithstanding anything to the contrary in this Schedule, taken to continue in force until the first of the events referred to in subclause (1) occurs.
14. Practising certificate(1) A practising certificate held by a registered or enrolled nurse immediately before the commencement day is taken to be a practising certificate issued to the person under this Act for the unexpired period of the certificate.(2) Subclause (1) applies to a practising certificate even if, immediately before the commencement day, that practising certificate was suspended under the repealed Act but that subclause is not to be taken as revoking or reducing any period of suspension to which that former practising certificate was subject immediately before that day.(3) If a certificate referred to in subclause (1) expires before the due date referred to in section 50 , the Board may issue a new certificate for the period that commences immediately after the expiry and ends on the due date.(4) The Board may set and charge a fee, not exceeding the fee specified in item 3 of Schedule 9 , for issuing the temporary practising certificate.(5) The Board may waive the whole or any part of the set fee.(6) If the practising certificate referred to in subclause (1) is endorsed with the category of midwifery nursing, the holder of the certificate is, on the commencement day –(a) entitled to practise generally under and subject to this Act; and(b) taken to hold an authorisation to practise in the restricted practice area of midwifery under and subject to this Act.(7) If the practising certificate referred to in subclause (1) is endorsed with the category of psychiatric nursing, the holder of the certificate is, on the commencement day –(a) entitled to practise generally under and subject to this Act; and(b) taken to hold an authorisation to practise in the restricted practice area of psychiatric nursing under and subject to this Act.(8) If the practising certificate referred to in subclause (1) is endorsed with categories of nursing other than midwifery nursing or psychiatric nursing, the holder of the certificate is, on the commencement day –(a) entitled to practise generally under and subject to this Act on the same conditions and with the same limitations as applied to the person's entitlement to practise under the repealed Act ; but(b) not authorised or entitled to practise in a restricted practice area.(9) Subclauses (6) , (7) and (8) have effect subject to subclause (2) .
15. Registered or enrolled person without practising certificate may apply for that certificate under this Act(1) A person who is taken to be registered or enrolled on the commencement day by virtue of this Schedule and who did not, immediately before that day, hold a practising certificate under the repealed Act may apply in writing to the Board for a practising certificate under this Act.(2) On receipt of an application under subclause (1) the Board must, within 14 days, having regard to such matters as the Board considers necessary or appropriate, issue the person or refuse to issue the person with a practising certificate.(3) The Board must, as soon as practicable, give notice of its decision to the applicant.(4) A person whose application under subclause (1) is refused may, within 14 days of receiving the notice, appeal to the Supreme Court against the Board's decision.(5) At the hearing of an appeal the Supreme Court may confirm the decision of the Board or order the Board to issue the applicant with a practising certificate.
16. Complaints as to health or capacity(1) If a complaint made under section 17 (1) of the repealed Act had not, by the commencement day, been referred to a committee of assessors under section 17 (2) of the repealed Act , the complaint is taken to be a complaint to the Board under this Act.(2) If a complaint made under section 17 (1) of the repealed Act had, by the commencement day, been referred to a committee of assessors under section 17 (2) of the repealed Act –(a) the complaint is taken to be a complaint to the Board under this Act; and(b) the committee of assessors as constituted under the repealed Act continues in existence and must make a determination and submit a report to the Board in accordance with section 17 of the repealed Act ; and(c) as soon as the report is submitted to the Board the committee of assessors is dissolved; and(d) on receipt of the report, the Board may take such action under this Act as it thinks fit having regard to the welfare and safety of patients.
17. Other complaints(1) If, immediately before the commencement day, an inquiry had begun into a complaint made under section 24 (1) of the repealed Act but had not been concluded, the Board may –(a) terminate the inquiry and regard the complaint as a complaint to the Board made under this Act; or(b) continue and conclude the inquiry as if this Act had not been enacted.(2) In making a determination under subclause (1) , the Board may have regard to such matters as it considers appropriate but must have particular regard to –(a) how far the inquiry had progressed by the commencement day; and(b) fairness tothe person who is the subject of the inquiry; and(c) cost and inconvenience to the Board, the person who is the subject of the inquiry or other persons; and(d) any submissions made to the Board by or on behalf of the person who is the subject of the inquiry.(3) In a case to which subclause (1) (b) applies, the Board, upon the conclusion of the inquiry, may take such action under this Act as it considers appropriate having regard to the findings of the inquiry.(4) A complaint may be made or dealt with under this Act in respect of an act or omission of a nurse notwithstanding that the act or omission actually or allegedly occurred before the commencement day.
18. Determination imposing fineWhere a fine imposed on a person pursuant to section 27 (2) (e) of the repealed Act had not been paid, or paid in full, immediately before the commencement day, that fine, or the unpaid balance of that fine, is due and payable to, and may be recovered as a debt due to, the Board.
19. Appeals(1) An appeal instituted under section 35 of the repealed Act and not determined by the commencement day may be continued and determined as if this Act had not been enacted.(2) Where pursuant to subclause (1) , the Supreme Court orders in respect of an appeal under section 35 (a) of the repealed Act that an application for registration or enrolment under the repealed Act be granted, that registration or enrolment is, for the purposes of this Schedule, taken to have been in force immediately before the commencement day.(3) Where pursuant to subclause (1) , the Supreme Court orders in respect of an appeal under section 35 (b) of the repealed Act that an application for the renewal of a practising certificate under the repealed Act be granted, that practising certificate is, for the purposes of this Schedule, taken to have been a practising certificate in force immediately before the commencement day.(4) Where pursuant to subclause (1) , the Supreme Court orders in respect of an appeal under section 35 (c) or (d) of the repealed Act that some action or determination be substituted for an action or determination of the former Board, the court may, if it considers it fair and appropriate to do so having regard to the repeal of the repealed Act and the enactment of this Act, order that the substituted action or determination be one that the Board or Tribunal could take or make under this Act had the appeal been instituted under this Act.
SCHEDULE 9 - Interim Fees
$ | ||
1. | Application for registration or enrolment: section 21 (1) (c) | 50 |
2. | Application for authorisation: section 33(1)(c) | 15 |
3. | Practising certificate fee: sections 21 (1) (c) and 50 (2) (a) | 80 |
4. | Reinstatement fee: section 50 (4) | 20 |
5. | Restoration fee: section 53 (1) | 50 |
6. | Fee for replacement certificate: section 41(2) | 10 |
7. | Fee to inspect register or roll: section 47 (1) | 10 |
8 | Fee to obtain copy of or extract from register or roll: section 47(2) | 5 per page |
9. | Fee to obtain copy of notice: section 48 (2) | 5 per page |
SCHEDULE 10