APPENDIX SIX - COMMITTEE MEMORANDUMS

GROUNDS FOR DISCIPLINARY PROCEEDINGS OF MEMBERS OF PROFESSIONAL BODIES

DATE: 20 March 1995

Recently, the Scrutiny of Acts and Regulations Committee had cause to examine regulations prescribing grounds for cancellation or suspension of persons registered under the Optometrists Registration Act 1958.

Concerns were raised about paragraph (c) of Regulation 202 which introduced a wide, undefined notion of behaviour which brought the profession of optometry "into disrepute".

The matter was followed up with the Minister for Health, and, in turn, the Optometrists Registration Board of Victoria. The Committee was given an undertaking that the Regulation would not impinge upon any optometrist's freedom of expression and that members of professions should have the right to make reasonable comment about their chosen field.

In the event, having canvassed the matter, the Scrutiny of Acts and Regulations Committee has approved the particular regulation. However, as a general finding, the Committee formed the view that it would not wish to be seen as encouraging the use of such and vague catch-all expressions.

The Committee recommends to all drafting officers that possible disqualification from professional practice be limited to specific grounds related to professional competence and conduct. Attached is a copy of the definition of "unprofessional conduct" contained in Section 3 of the Medical Practice Act 1994 which satisfies the Committee's concerns.

(Section 3, Medical Practice Act 1994)

"unprofessional conduct" means any or all of the following-

(a) professional conduct which is of a lesser standard that which the public might reasonably expect of a registered medical practitioner; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or

(c) professional misconduct; or

(d) infamous misconduct in a professional respect; or

(e) providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person's well being; or

(f) influencing or attempting to influence the conduct of a medical practice in such a way that patient care may be compromised; or

(g) the failure to act as a medical practitioner when required under an Act or regulations to do so; or

(h) a finding of guilt of -

(i) an indictable offence in Victoria, or an equivalent offence in another jurisdiction; or

(ii) an offence where the practitioner's ability to continue to practice is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the practitioner to continue practice because of the finding of guilt; or

(iii) an offence under this Act or the regulations; or

(iv) an offence as a medical practitioner under any Act or regulations.

ABOUT EXPLANATORY MEMORANDUMS

DATE: 24 May 1995

The Committee has recently examined an Explanatory Memorandum which simply listed the headings of the various regulations within the Statutory Rule. Nothing else was provided by way of explanation. The Committee advises that this is not adequate and that it will report adversely upon any future rule which is accompanied by an Explanatory Memorandum of such inadequate standard.

ABOUT OPEN-ENDED, CATCH-ALL PROHIBITIONS

DATE: 24 May 1995

The Committee recently had the responsibility of examining certain Statutory Rules which included some regulations which concluded with unqualified, catch-all provisions.

One of these read:

"[X] may determine that entry ... is to be prohibited ...

(...) for any other particular purpose or activity ..."

In the circumstances, and on receipt of a substantial letter from the Minister concerned, the Committee approved the regulations.

However, it wishes it to be clearly noted that, other than where good public policy reasons prevail, such non-specific but all-inclusive provisions will not meet with the Committee's approval.

Where there are good public reasons supporting the regulation, the Committee believes that they ought be stated in the Explanatory Memorandum, or where appropriate, in the RIS.

The Committee also believes that it is possible for new regulations to be made where unexpected or unforeseen circumstances occur, and at the very least open-ended provisions are able to be expressly qualified by the objective of the regulation.

ABOUT SECTION 10(3) CERTIFICATES OF INDEPENDENT ADVICE

ABOUT: Regulatory Impact Statements and certificates of adequacy under the Subordinate Legislation Act 1994

DATE: 26 February, 1997

The Committee advises that to assist it to evaluate Regulatory Impact Statements properly, it requests Government Departments and authorities to forward to the Committee a copy of the independent advice as to the adequacy of each Regulatory Impact Statement required to be obtained by section 10(4) of the Subordinate Legislation Act 1994.

Cooperation on the part of officers is warmly appreciated.

ABOUT THE USE IN EXPLANATORY MEMORANDUMS OF CLEAR TABLES SETTING OUT CHANGES TO FEES.

DATE: 5 March 1997

One of the major uses of subordinate legislation is to formalise changes to fees charged to members of the public for particular services. The Subordinate Legislation Subcommittee recommends highly to those responsible for preparing accompanying Explanatory Memorandums the use of a clear table setting out what the particular fee in question was and what it is to be after the Regulation comes into effect. In the usual case where the changes are within annual rate approved by the Treasurer in relation to the State Budget, the exact percentage increase is most helpful.

By way of illustration, something like the following might be employed:

Scrutiny of Acts and Regulations Committee
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