Page 916 - Week 03 - Tuesday, 16 March 2010
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happened then was somehow in August 2009—very late in the process—the role of the public interest assessor was removed from the final bill. That removed our ability to have that joint consideration model between the national boards and the ACT Health Services Commissioner.
The IGA, and certainly the communique from one of the health ministers meetings in June 2009, states:
If a jurisdiction chooses to handle complaints under State or Territory law, this arrangement will be set out in that jurisdiction’s Bill C.
So to ensure the retention of a robust and fair complaints handling process for the protection of the ACT public, a number of modifications have had to be made to how bill C will operate in the ACT, and these have been included in the ACT’s bill C.
Since the ACT, along with Victoria, is one of only two Australian jurisdictions with human rights legislation, some modifications have been required to bill B to ensure that it complies with the ACT Human Rights Act 2004. Matters of Human Rights Act compliance have also been raised by the scrutiny of bills committee in their scrutiny report of February 2010.
The national law engages human rights, including the presumption of innocence, to not incriminate oneself and to not have arbitrary or unlawful interference with one’s privacy. Under the national law, a national board can decide whether a person is unsuitable to hold registration as a health professional on the basis of the individual’s criminal history. To enable these criminal history provisions to be a reasonable limitation on the protection from discrimination and the presumption of innocence in the Human Rights Act 2004, bill C contains provisions that require the national boards to turn their minds to relevant factors when considering an individual’s criminal history. These factors include the person’s particular criminal record, the inherent requirements of the particular job and the need for a tight correlation between these elements.
The national law also engages the right not to incriminate oneself. Investigator and inspector powers in the national law require a person to provide information or risk being prosecuted for a criminal offence. To resolve this issue, bill C contains a qualification that provides immunity against the use of compelled evidence for criminal prosecution.
Bill C allows that evidence which could have been discovered without the testimony of the individual would still be admissible. If, for example, a person was asked to disclose where particular documents are in an office, the immunity would not apply as the documents could have been found through warrant. If, however, the person discloses a particular conversation that only the person and another participated in, the testimony would be protected.
The national law includes provisions that require a person to attend an assessment following a notice of such an assessment. This raises the issue of fair trial. As the board is a quasi-judicial body and has powers that can affect a person, to ensure natural justice, bill C requires that notice of assessment be in an approved form which
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