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2008- 2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL HEALTH AND HOSPITALS NETWORK BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Ageing,
the Hon. Nicola Roxon, MP)
TABLE OF CONTENTS
NATIONAL HEALTH AND HOSPITALS NETWORK BILL 2010 3
OUTLINE 3
Financial Impact Statement 4
NATIONAL HEALTH AND HOSPITALS NETWORK BILL 2010 5
NOTES ON CLAUSES 5
CHAPTER 1 - PRELIMINARY 5
Clause 1: Short Title 5
Clause 2: Commencement 5
Clause 3: Object 5
Clause 4: Simplified Outline 5
Clause 5: Definitions 5
Clause 6: Vacancies 6
Clause 7: Crown to be bound 6
PART 2 - COMMISSION'S ESTABLISHMENT, FUNCTIONS AND POWERS 6
Clause 8 - Establishment of the Commission 6
Clause 9 - Functions of the Commission 6
Clause 10 - Additional provisions about standards, guidelines and
indicators 7
Clause 11 - Additional provisions about model national accreditation
schemes 7
Clause 12 - Constitutional limits 8
Clause 13 - Powers of the Commission 8
Clause 14 - Charging of fees 8
Clause 15 - Commission has privileges and immunities of the Crown. 8
Clause 16 - Ministerial directions 8
PART 3 - THE BOARD OF THE COMMISSION 8
Division 1 - Establishment and role of the Board 9
Clause 17 - Establishment 9
Clause 18 - Role 9
Division 2 - Members of the Board 9
Clause 19 - Membership 9
Clause 20- Appointment of Board Members 9
Clause 21 - Period of appointment for Board Members 9
Clause 22 - Acting Board members 9
Clause 23 - Remuneration 10
Clause 24 - Leave of absence 10
Clause 25 - Resignation 10
Clause 26 - Termination of appointment 10
Clause 27 - Other terms and conditions 10
Division 3 - Procedures of the Board 10
Clause 28 - Convening of meetings 10
Clause 29 - Presiding at meetings 11
Clause 30 - Quorum 11
Clause 31 - Voting at meetings 11
Clause 32 - Decisions without meetings 11
Clause 33 - Conduct of meetings 11
Clause 34 - Minutes 11
Division 4 - Delegation by the Board 11
Clause 35 - Delegation by Board 11
PART 4 - CHIEF EXECUTIVE OFFICER, STAFF AND CONSULTANTS 12
Division 1 -The Chief Executive Officer of the Commission 12
Clause 36 - Establishment 12
Clause 37 - Role 12
Clause 38 - Appointment 12
Clause 39 - Acting appointments 12
Clause 40 - Outside employment 13
Clause 41 - Remuneration 13
Clause 42 - Leave 13
Clause 43 - Disclosure of interests 13
Clause 44 - Resignation 13
Clause 45 - Termination of appointment 13
Clause 46 - Other terms and conditions 13
Division 2 - Staff and consultants 14
Clause 47 - Staff 14
Clause 48 - Persons assisting the Commission 14
Clause 49 - Consultants 14
PART 5 - COMMITTEES 14
Clause 50 - Committees 14
Clause 51 - Remuneration and allowances 14
PART 6 - REPORTING OBLIGATIONS OF THE COMMISSION 15
Clause 52 - Minister may require the Commission to prepare reports or
give information 15
Clause 53 - Annual Report 15
Clause 54 - Work Plan 15
PART 8 - MISCELLANEOUS 15
Clause 55 - CEO not subject to direction by the Board on certain matters
15
Clause 56 - Taxation 16
Clause 57 - Compliance with standards and guidelines 16
Clause 58 - Protection of patient confidentiality 16
Clause 59- Concurrent operation of State and Territory laws etc. 16
Clause 60 - Regulations 16
NATIONAL HEALTH AND HOSPITALS NETWORK BILL 2010
OUTLINE
The Bill provides for the establishment of the Australian Commission for
Safety and Quality in Health Care (the Commission) as a permanent,
independent statutory authority under the Commonwealth Authorities and
Companies Act 1997.
The legislation provides a framework for the establishment of the
Commission, including the expanded role for the Commission of setting
national clinical standards and strengthened clinical governance. It is
intended that these arrangements under this expanded role will be further
developed in consultation with the states and territories and subject to
finalising financial commitments.
The establishment of this body forms part of the National Health and
Hospitals Network Agreement between the Commonwealth and the States (with
the exception of Western Australia) and Territories endorsed on 20
April 2010.
The National Health and Hospitals Network Agreement provides that the
National Health and Hospitals Network will be a nationally unified and
locally controlled health system that will ensure future generations of
Australians enjoy world class, universally accessible health care.
The National Health and Hospitals Network Agreement provides that the
National Health and Hospitals Network will have a new Performance and
Accountability Framework, and the framework will include standards
developed by the Commission.
The implementation of the National Health and Hospitals Network will also
involve the following:
. provisions establishing the Independent Hospital Pricing Authority;
. provisions establishing the National Performance Authority;
. provisions amending the Federal Financial Relations Act 2009.
It is intended that this Act will be amended to include provisions to
establish the Independent Hospital Pricing Authority and the National
Performance Authority.
The continuation of the Commission, and expansion as an independent
national safety and quality body, will help reduce the harm caused by
preventable errors, improve quality and safety in the health system, reduce
health care costs resulting from unnecessary or ineffective treatment and
have a positive impact on community trust.
The Commission will formulate and monitor quality and safety standards and
work with clinicians to identify best practice clinical care, to ensure the
appropriateness of services being delivered in a particular health care
setting. The Commission will provide advice to the Commonwealth, State and
Territory Health Ministers about which of the standards are suitable for
implementation as national clinical standards. Local Hospital Networks
will be responsible for implementing relevant national clinical standards
once the relevant standards are agreed between the Commonwealth and States
and Territories.
The Commission does not have regulatory functions.
Throughout the Act it is intended that the process of consultation would
ordinarily include providing an opportunity for all relevant parties to
provide comments, a reasonable timeframe within which to provide those
comments and that those comments would be taken into consideration by the
consulting party.
The Commission will consist of:
. A Board of Directors comprising of a Chairperson and seven to nine
other members with substantial experience or knowledge and significant
standing in public administration in relation to health care, provision
of professional health care services, management of companies, or other
organisations, that are involved in the provision of health care
services outside of the hospital system, general management of either
public and private hospitals, financial management, corporate
governance, representation of the interests of consumers, improvement
of safety and quality or law.
. A Chief Executive Officer (CEO) who will be responsible for the day-to-
day administration of the Commission, and will report to the Board;
. Expert committees and consultants engaged to assist with the
performance of the Commission's functions as required; and
. The Commission staff.
Financial Impact Statement
| |2010/11 |2011/12 |2012/13 |2013/14 |Total |
| |($ million|($ million|($ million|($ million|($ million|
| |) |) |) |) |) |
|Department|0.7 |7.2 |11.6 |12.7 |32.2 |
|of Health | | | | | |
|National | |1.0 |1.0 |1.0 |3.0 |
|Health and| | | | | |
|Medical | | | | | |
|Research | | | | | |
|Council | | | | | |
|Total |0.7 |8.2 |12.6 |13.7 |35.2 |
The Commonwealth Government will provide $35.2 million over four years to
jointly fund, with the States and Territories, the continuation and
expansion of the Australian Commission on Safety and Quality in Health Care
(the Commission) to support improvements in safety and quality in health
care. The Commission, which has been operating within the Department of
Health and Ageing, will be established as a permanent and independent
agency.
NATIONAL HEALTH AND HOSPITALS NETWORK BILL 2010
NOTES ON CLAUSES
CHAPTER 1 - PRELIMINARY
Clause 1: Short Title
This is a formal provision which provides that the Act may be referred to
as the National Health and Hospitals Network Act 2010.
Clause 2: Commencement
This clause sets out that the Act commences on 1 July 2011.
Clause 3: Object
This clause makes it clear that the object of this Act is to implement the
National Health and Hospitals Network, in so far as the network involves
the establishment of the Australian Commission on Safety and Quality in
Health Care.
The notes to this clause make it clear that the National Health and
Hospitals Network was endorsed by Premiers of the States (other than
Western Australia) and Chief Ministers of the Territories, in Canberra on
20 April 2010, in the National Health and Hospitals Network Agreement. The
Agreement provides for a National Health and Hospitals Network that will be
a nationally unified and locally controlled health system that will ensure
future generations of Australians enjoy world class, universally accessible
health care. A new Performance and Accountability Framework that will
include standards developed by the Commission is established as part of the
Agreement.
The notes also make it clear that it is intended that this Act will be
amended to include provisions to establish the Independent Hospital Pricing
Authority and the National Performance Authority.
The Agreement includes significant reforms to the financing of the health
and hospital system requiring modifications to the current framework set
out in the Federal Financial Relations Act 2009 and this is also referred
to in the notes.
Clause 4: Simplified Outline
This clause provides a simplified outline of the Act, and describes the
features of the Act.
Clause 5: Definitions
This clause sets out definitions of terms that are relied on in other
provisions throughout the Bill. Noted below are some particularly
important definitions and some further contextual information:]
National Health and Hospitals Network Agreement means the National Health
and Hospitals Network Agreement endorsed by Premiers of the States (other
than Western Australia) and Chief Ministers of the Territories, in Canberra
on 20 April 2010, as amended from time to time.
Commission means the Australian Commission on Safety and Quality in Health
Care.
Participating State/Territory Health Minister means a State or Territory
Health Minister, whose governments' have signed an agreement undertaking to
make financial contributions to the Commission.
Health care safety and quality matters have been left broadly defined in
the legislation to give the Commission broad scope to identify and
prioritise matters which it considers can be addressed to provide the
greatest positive impact on safety and quality in Australia's health
system. It also allows for a health care safety and quality matter to be
specified in regulations.
Clause 6: Vacancies
This clause sets out the meaning of 'vacancy' as it applies to the
membership of the Board of the Commission including the Chair.
Clause 7: Crown to be bound
This clause provides that the Crown is to be bound by this Act. The
provision does not make the Crown liable to pecuniary penalty or to be
prosecuted for an offence.
PART 2 - COMMISSION'S ESTABLISHMENT, FUNCTIONS AND POWERS
Clause 8 - Establishment of the Commission
This clause establishes the Commission as a body corporate.
Subsection (1) establishes the Commission and subsection (2) provides that
it is a body corporate which must have a seal, may deal with property and
may sue or be sued. The Note to this subsection assists the reader by
making clear that the Commission is subject to the Commonwealth Authorities
and Companies Act 1997 and briefly describes the matters dealt with in that
Act.
Subsection (3) deals with the safe-keeping and use of the Commission's seal
and subsection (4) deals with the judicial treatment of the Commission's
seal on documents.
Clause 9 - Functions of the Commission
Subsection (1) sets out the functions of the Commission. The functions
provide a framework that will enable the Commission to undertake a range of
work within the areas of safety and quality in health care and anything
incidental to or conducive to the performance of those functions.
Functions of the Commission include; promoting, supporting and encouraging
the implementation (by the Commonwealth and the States and Territories) of
arrangements, programs and initiatives relating to health care safety and
quality matters; collecting, analysing interpreting and disseminating
information relating to health care safety and quality matters; formulating
standards, guidelines and indicators relating to health care safety and
quality matters; advising and reporting on safety and quality across health
settings; monitoring the implementation and impact of standards and
guidelines for health care safety and quality; formulating model national
accreditation schemes that provide for accreditation of organisations that
provide health care services and relate to safety and quality matters;
promoting, supporting, encouraging, conducting and evaluating training and
research for purposes in connection with the Commission's other functions.
The Minister also has the ability to confer additional functions on the
Commission having consulted with participating State / Territory Health
Ministers. This provision is included to ensure that the Commission can
respond to future health care safety and quality priorities in an
appropriate manner.
Subsections (3) - (7) make it clear that standards, guidelines, indicators,
model national schemes and written instruments given by the Minister, are
not legislative instruments.
The note to this clause refers to clause 57 which makes it clear that
compliance with standards and guidelines formulated by the Commission is
voluntary. However compliance with those standards or guidelines may be
made a term or condition of a grant or under a contract or other legally
enforceable agreement. They may also be applied or adopted by a State or
Territory law or a law of the Commonwealth. The National Health and
Hospitals Network Agreement provides that Local Hospital Networks will be
responsible for local implementation of national clinical standards to be
agreed between the Commonwealth and States on the advice of the Commission.
Clause 10 - Additional provisions about standards, guidelines and
indicators
Subsection (1) sets out that this section will apply to standards,
guidelines and indicators formulated by the Commission. Subsection (2)
provides that the Commission must consult with clinicians, bodies known as
lead clinician groups, heads of health departments of participating States
and Territories, any other persons or bodies who in the Commission's
opinion are stakeholders in relation to the particular standard, guideline
or indicator and the public prior to formulating standards, guidelines or
indicators. It is intended that the process of consultation would
ordinarily include providing an opportunity for all relevant parties to
provide comments, a reasonable timeframe within which to provide those
comments and that those comments would be taken into consideration by the
consulting party. Subsection (3) provides that the Commission is not
required to comply with the intended consultation process where the
Commission is of the opinion that there is an urgent need to formulate a
standard, guideline or indicator (e.g. an influenza pandemic) and it would
therefore not be practicable to undertake normal consultation processes.
Subsection (4) allows the Commission to apply, adopt or incorporate, with
or without modification, any matter contained in any other instrument or
writing into the standards, guidelines or indicators it formulates.
Subsection (4) provides that the Commission must collect, analyse and
interpret such information as it considers relevant prior to formulating a
standard, guideline or indicator. Subsections (5) - (7) allow the Minister
in consultation with each participating State/Territory Health Minister to
make, by legislative instrument, rules that must be complied with by the
Commission in formulating standards, indicators or guidelines.
Clause 11 - Additional provisions about model national accreditation
schemes
Subsection (1) sets out that this section will apply to a model national
accreditation scheme formulated by the Commission. Subsection (2) provides
that the Commission must consult with heads of health departments of
participating States and Territories, any other persons or bodies who in
the Commission's opinion are stakeholders in relation to the standard,
guideline or indicator and the public prior to formulating standards,
guidelines or indicators. It is intended that the process of consultation
would ordinarily include providing an opportunity for all relevant parties
to provide comments, a reasonable timeframe within which to provide those
comments and that those comments would be taken into consideration by the
consulting party. There is no provision allowing the Commission not to
undertake consultation processes in certain circumstances as there is no
situation in which a model accreditation scheme would be required to be
formulated urgently. Subsections (3) - (5) allow the Minister in
consultation with each participating State/Territory Health Minister to
make, by legislative instrument, rules that must be complied with by the
Commission in formulating standards, indicators or guidelines.
Clause 12 - Constitutional limits
This clause provides that the Commission may only perform its functions
within the limits of the Commonwealth's constitutional powers.
Clause 13 - Powers of the Commission
This clause empowers the Commission to do all things necessary or
convenient to perform its functions prescribed under clause 9, including
day-to-day operations, such as entering into contracts.
Clause 14 - Charging of fees
This clause specifies that the Commission is allowed to charge fees for
things done in the performance of its functions but only if the Minister,
in consultation with each participating State/Territory Health Minister,
has made rules to be complied with by the Commission when charging fees.
This is intended to cover the potential for the Commission to charge fees
(eg for provision of services to third parties). It is not intended to
allow the Commission to charge fees for service provided to any government
in the ordinary performance of its functions i.e. where a government is
contributing funding towards the operation of the Commission.
Clause 15 - Commission has privileges and immunities of the Crown.
This clause provides that the Commission will have the privileges and
immunities of the Crown in right of the Commonwealth.
Clause 16 - Ministerial directions
This clause enables the Minister to give directions to the Commission in
relation to the performance of its functions and the exercise of its powers
which the Commission must comply with. Such directions must be of a
general nature (subsection (2)) and must be consistent with this Act and
its regulations. The Minister must consult with each participating
State/Territory Health Minister before making a direction (subsection (3)).
PART 3 - THE BOARD OF THE COMMISSION
Division 1 - Establishment and role of the Board
Clause 17 - Establishment
This clause establishes the Board of the Commission.
Clause 18 - Role
This clause sets out the governing role of the Board, which is to ensure
the proper and efficient performance of the Commission's functions
(subsection (1)). The Board is empowered to carry out all things necessary
and convenient to be done in connection with the performance of its duties
(subsection (2)). Things done by the Board or with the Board's authority
will be taken to have been carried out by the Commission (subsection (3)).
Subsection (4) deals with the exercise of powers or functions which depend
upon an opinion, belief or state of mind of the Commission.
Division 2 - Members of the Board
Clause 19 - Membership
This clause provides for the Board to consist of a Chair, and not fewer
than seven but not more than nine other Board Members.
Clause 20- Appointment of Board Members
This clause provides for the Minister to appoint Board members (subsection
(1)) by written instrument (subsection (2)), following consultation with
participating State/Territory Health Ministers (subsection (6)).
State/Territory Health Ministers may provide nominations for Board
appointments to the Minister for consideration by the Minister as part of
the consultation process prior to making appointments. Subsection (4)
provides that the Minister is to ensure that Commission Board Members
collectively possess a balance of skills, experience and knowledge in the
fields that are listed in subsection (3). The fields listed in subsection
(3) are intended to provide the Board with a broad range of skills and
expertise in relation to the performance of its functions.
All appointments are on a part-time basis (subsection (5)). Where the
Minister proposes to make an instrument under subsection (3(k)) which
specifies a particular field of expertise, he or she must consult with
participating State/Territory Health Ministers (subsection (6)). This is
intended to provide flexibility to ensure that Board members have the
additional skills and expertise that may be identified as necessary to
respond to future safety and quality priorities.
Clause 21 - Period of appointment for Board Members
This clause provides that Commission Board Members are to be appointed for
a period not exceeding five years. The Note to this clause makes reference
to subsection 33 (4A) of the Acts Interpretation Act 1901, which describes
that "In any Act, appoint includes re-appoint."
Clause 22 - Acting Board members
This clause provides for the Minister to appoint an Acting Chair
(subsection (1)), and Acting Board members (subsection (2)). This
provision is intended to ensure continuity of business where one or more
Board members cannot fulfil their duties for a period of time. Subsection
(3) specifies that appointments must be made by written instrument.
Subsection (4) provides that a person is not eligible for an acting
appointment if they would not be eligible for an appointment.
Subsection (5) deals with persons purporting to act under an appointment
and provides that such actions are not invalid if the prescribed
circumstances apply, such as cessation of the appointment or a defective
instrument of appointment.
The Note in this section assists the reader by providing a reference to the
appointment provisions in the Acts Interpretation Act 1901.
Clause 23 - Remuneration
This clause provides that the remuneration of Board members is to be
determined by the Remuneration Tribunal, or by the regulations if there is
no determination by the Remuneration Tribunal (subsection (1)). Subsection
(2) provides that members are to be paid allowances to be set out in the
regulations, and subsection (3) makes clear that this provision is subject
to the Remuneration Tribunal Act 1973.
Clause 24 - Leave of absence
This clause provides for the Minister to grant the Chair leave of absence
and determine the terms and conditions of the leave (subsection (1)), and
for the Chair to provide the same function for granting leave of absence to
other Board Members (subsection (2)). It also requires the Chair of the
Commission Board to notify the Minister if a leave of absence greater than
six months is granted (subsection (3)).
Clause 25 - Resignation
This clause provides for the resignation of Board members through written
resignation to the Minister (subsection (1)). Any such resignation is
effective from either the day the Minister receives the written notice or a
later date if specified in the resignation (subsection (2)).
Clause 26 - Termination of appointment
This clause provides for the Minister, following consultation with
participating State/Territory Health Ministers (subsection (3)), to
terminate the appointment of a Board Member due to the specified
circumstances in the legislation. Subsection (1) specifies the
circumstances in which the Minister may terminate an appointment for
physical or mental incapacity and subsection (2) specifies the circumstance
in which the Minister must terminate an appointment, including bankruptcy,
unexplained absenteeism, failure to comply (without reasonable excuse) with
specified sections of the Commonwealth Authorities and Companies Act 1997.
Clause 27 - Other terms and conditions
This clause provides for the Minister to determine other terms and
conditions of Board membership not otherwise covered in the Act.
Division 3 - Procedures of the Board
Clause 28 - Convening of meetings
This clause sets out that a minimum of three Board Meetings must be
convened each year (subsection (1)), and allows the Chair to convene such
additional meetings Board if he or she considers necessary (subsection
(2)). The Chair must convene a Board meeting if directed to do so by the
Minister.
Clause 29 - Presiding at meetings
This clause provides that the Chair of the Board is to preside at all
Commission Board meetings at which he or she is present (subsection (1)),
and where the Chair is not present, for a Board member elected by the Board
members present to preside (subsection (2)).
Clause 30 - Quorum
This clause provides that a quorum is established at a Board meeting if a
majority of Board members are present (i.e. if the total number of Board
members is 8 or 9 then 5 members must be present, if the total number of
Board members is 10 then 6 must be present). This ensures that the Board
can continue to function where some members are not able to attend
meetings, but prevents a small minority of members from making decisions.
Clause 31 - Voting at meetings
This clause provides for Commission Board decisions to be made on a
majority basis (subsection (1)), with the Chair of the Commission Board
having the casting vote in the event that votes are equal (subsection (2)).
Clause 32 - Decisions without meetings
This clause provides for decisions of the Commission Board to be made
without a formal meeting in certain circumstances (subsection (1)). A
decision without a meeting cannot be made unless the Board has determined a
method by which such a decision is to be made (such as advice in writing
from Board members) (subsection (2)). A Board member is not entitled to
vote in a decision without a meeting if that Board member would not have
been entitled to vote on that proposal in a meeting of the Board
(subsection (3)).
Clause 33 - Conduct of meetings
This clause provides that the Commission may regulate proceedings at its
meetings as it thinks fit subject to this Act and the Commonwealth
Authorities and Companies Act 1997. The Note to this clause assists the
reader by providing a reference to the provision of the Acts Interpretation
Act 1901 which deals with members' participation in meetings.
Clause 34 - Minutes
This clause specifies that the Commission Board is to keep records of its
meetings.
Division 4 - Delegation by the Board
Clause 35 - Delegation by Board
This clause specifies that the Board is able to delegate any, or all of its
functions and powers to a Board member, the Chief Executive Officer or an
SES officer who is a member of the staff of the Commission (subsection
(1)). This delegation of functions and powers must be in writing.
Subsection (2) specifies that when the delegate is performing his or her
delegated functions and powers, that he or she must comply with any written
directions provided by the Board.
PART 4 - CHIEF EXECUTIVE OFFICER, STAFF AND CONSULTANTS
Division 1 -The Chief Executive Officer of the Commission
Clause 36 - Establishment
This clause specifies that there is to be a Chief Executive Officer (CEO)
of the Commission.
Clause 37 - Role
This clause sets out the role of the CEO, being the day-to-day
administration of the Commission (subsection (1)), and empowers the CEO to
do all things necessary or convenient in performing the role (subsection
(2)). The CEO must act in accordance with policies and directions from the
Board (subsection (3)).
Clause 38 - Appointment
This clause provides for the first CEO of the Commission to be appointed by
the Minister in consultation with participating State/Territory Health
Ministers (subsection (1)(a)). In any other case, the CEO will be
appointed by the Commission Board (subsection (1)(b)). In the case of
subsection (1)(b) applying, then the Commission Board must consult with the
Minister and the Minister must consult with each participating State and
Territory Health Minister before an appointment is made under this clause
(subsection (3)).
Appointment is to be made by written instrument (subsection 4) and will be
on a full-time basis (subsection 5). Subsection 6 specifies that the CEO
is not to be appointed for a period exceeding five years, and that the
Commission CEO is not permitted to be a Commission Board Member (subsection
(7)).
The Note to this clause makes reference to subsection 33 (4A) of the Acts
Interpretation Act 1901, which describes that "In any Act, appoint includes
re-appoint."
Clause 39 - Acting appointments
This clause provides for the Commission Board to appoint an acting CEO
during vacancies or absences by the existing CEO (subsection (1)). This
provision is intended to ensure continuity of business where the CEO cannot
fulfil his/her duties for a period of time. Acting appointments under this
clause are to be made by written instrument (subsection (2)).
Subsection (3) deals with persons purporting to act under an appointment
and provides that such actions are not invalid if the prescribed
circumstances apply, such as cessation of the appointment or a defective
instrument of appointment.
The Note in this section assists the reader by providing a reference to the
appointment provisions in the Acts Interpretation Act 1901.
Clause 40 - Outside employment
This clause specifies that the CEO is not to engage in paid employment
outside the CEO role without the approval by the Chair of the Commission
Board (subsection (1)) and that the Chair must notify the Minister if
providing such approval (subsection (2)).
Clause 41 - Remuneration
This clause provides that the remuneration of the CEO is to be determined
by the Remuneration Tribunal, or by the regulations if there is no
determination by the Remuneration Tribunal (subsection (1)).
Subsection (2) provides that members are to be paid allowances to be set
out in the regulations, and subsection (3) makes clear that this provision
is subject to the Remuneration Tribunal Act 1973.
Clause 42 - Leave
This clause provides for the CEO's recreation leave entitlements to be
determined by the Remuneration Tribunal (subsection (1)). It also provides
that the Chair of the Commission Board may grant, and determine the
conditions of, other leave of absence (subsection (2)) and requires the
Commission Board Chair to notify the Minister if granting the CEO leave of
more than two months (subsection (3)).
Clause 43 - Disclosure of interests
This clause requires the CEO to inform the Commission Board Chair, in
writing, of all material personal interests that conflict or may conflict
with the performance of the duties of the CEO.
Clause 44 - Resignation
This clause provides for the CEO to resign by giving a written resignation
to the Chair (subsection (1)). Such resignation is effective from either
the day the Commission Board Chair receives the written notice or a later
date specified in the resignation (subsection (2)). The Commission Board
Chair is required to notify the Minister if the CEO resigns (subsection
(3)).
Clause 45 - Termination of appointment
This clause provides for the Commission Board, to terminate the appointment
of the CEO due to specified circumstances, including incapacity and non-
approved absenteeism. The Commission Board may terminate the appointment
of the CEO for physical or mental incapacity or for unsatisfactory
performance as determined by the Board (subsection (2)). Subsection (3)
requires that the Commission Board must consult with the Minister, who then
must also consult with the participating State/Territory Health Ministers
before terminating the appointment under subsections (1) or (2).
Subsection (4) specifies the circumstances in which the Board must
terminate the appointment, including; bankruptcy, unexplained absenteeism,
failure to comply (without reasonable excuse) with specified sections of
the Commonwealth Authorities and Companies Act 1997. Subsection (5)
requires that the Commission Board must notify the Minister and each
participating State/Territory Health Minister if the Board has terminated
the appointment of the CEO.
Clause 46 - Other terms and conditions
This clause provides for the Commission Board to determine other terms and
conditions of the CEO's office not otherwise covered in the Act.
Division 2 - Staff and consultants
Clause 47 - Staff
This clause provides that the staff of the Commission are to be engaged as
public servants under the conditions that are specified under the Public
Service Act 1999 (subsection (1)). This is intended to ensure a smooth
transition for the Commission and its staff, which has been operating since
2006 as part of the Department of Health and Ageing, to its new
arrangements as an independent body. Subsection (2) specifies that both
the Commission CEO and Commission staff constitute a Statutory Agency, and
that the Commission CEO is the head of that Statutory Agency for the
purposes of that Act.
Clause 48 - Persons assisting the Commission
This clause provides that the Commission can arrange for the services of
employees of Commonwealth Agencies (as defined in the Public Service Act
1999) (para (a)), employees of the Commonwealth or State and Territory
Governments (paras (b) and (c)) and/or employees of State or Territory
authorities (para (d)), to be made available to the Commission to enable it
to perform any of its functions.
Clause 49 - Consultants
This clause provides that the Commission may engage consultants to assist
in the performance of its functions.
PART 5 - COMMITTEES
Clause 50 - Committees
This clause provides for the Commission to establish committees to provide
advice or assistance to the Commission in the performance of its functions
(subsection (1)). The membership of such committees may contain Commission
Board Members, those who are not Commission Board Members, or a mixture of
those who are and are not Commission Board Members (subsection (2)).
Subsection (3) provides that the Commission may determine the terms of
reference, appointment terms and conditions and procedures for such a
committee.
Clause 51 - Remuneration and allowances
Subsection (1) specifies that this clause applies if a committee of the
Commission is established under Clause 50 of the Act.
Subsection (2) specifies that members of a committee established under
Clause 50 of the Act will be paid in accordance to a determination made by
the Remuneration Tribunal. If there is no determination, then a member of
a Committee of the Commission will be paid in accordance with the level of
remuneration that is prescribed in the regulations.
Subsection (3) specifies that a member of a committee of the Commission is
not entitled to be paid remuneration in the case that a member of a
committee holds an office or appointment; or is employed on a full-time
basis by either a State; a statutory corporation established for a public
purpose under State law (that is not a tertiary institution); or is a
company limited by guarantee (where the interests and rights of members in
or in relation to the company are beneficially owned by a State); or a
company where all stocks and shares are owned by a State or public
statutory corporation.
Subsection (4) specifies that committee members are to be paid allowances
prescribed by the regulations, and subsection (5) specifies that this
clause is subject to the Remuneration Tribunal Act 1973.
PART 6 - REPORTING OBLIGATIONS OF THE COMMISSION
Clause 52 - Minister may require the Commission to prepare reports or give
information
Subsection (1) allows the Minister, by written notice to require the
Commission to prepare a report about the performance of one or more of the
Commission's functions and give copies of the report to the Minister within
a specified timeframe. Subsection (2) allows the Minister, in writing, to
require the Commission to prepare a document setting out specified
information relating to the performance of the Commission's functions and
give copies of the document to the Minister within a specified timeframe.
Subsection (3) provides that the Commission must comply with such
requirements. Subsection (4) allows the Minister to publish such reports
or documents. Subsections (5) and (6) make it clear that such reports or
documents are not legislative instruments.
Clause 53 - Annual Report
This clause provides that each report on the Commission under section 9 of
the Commonwealth Authorities and Companies Act 1997 for a financial year
must include; an assessment of the performance and impact of the
performance of each of the Commission's functions for that financial year
and an assessment of the safety and quality of health care services
provided during that financial year.
Clause 54 - Work Plan
Subsections (1) - (3) provide that the Commission must prepare a rolling 3
year work plan each financial year and give it to the Minister who must
give a copy of the plan to each participating State / Territory Health
Minister. Subsections (4) - (6) require the Commission to prepare a draft
of the work plan at the end of 31 October each financial year and give it
to the Minister who must give it to each participating State / Territory
Health Minister, inviting them to provide written submissions about the
work plan within 90 days of being invited to do so (or within another
specified time). The Commission must have regard to these submissions in
preparing their final work plan. It is intended that participating States
/ Territories should have input into the future work priorities of the
Commission. The Minister can, by written instrument, change the timing for
preparing the draft work plan - this is not a legislative instrument
(subsection (7)).
PART 8 - MISCELLANEOUS
Clause 55 - CEO not subject to direction by the Board on certain matters
This clause makes clear that the CEO is not subject to direction by the
Board in relation to the performance of his/her functions or exercise of
powers under the Public Service Act 1999.
Clause 56 - Taxation
This clause specifies that the Commission is not subject to taxation under
any Commonwealth, State or Territory law.
Clause 57 - Compliance with standards and guidelines
This clause specifies that standards that are formulated under Clause
9(1)(e) of the Act and guidelines formulated under Clause 9(1)(f) are
voluntary (subsection (1)). However, subsection (2) specifies that
compliance against a standard or guideline that is formulated under Clause
9(1)(e) or Clause 9(1)(f) of the Act may be imposed as a term or condition
on receiving a grant; or in the case of a contract or other legally
enforceable agreement (subsection (2)).
This Act does not prevent a standard or guideline that is formulated under
Clause 9(1)(e) or Clause 9(1)(f) of the Act from being applied or adopted
under a law of a State or Territory, or any other law of the Commonwealth
apart from this Act.
Clause 58 - Protection of patient confidentiality
The clause specifies that the Commission must not publish or disseminate
information if it will lead to the identification of a particular patient
(subsection (1)). Subsection (2) provides that subsection (1) does not
apply if publication or dissemination of information takes place with the
consent of:
- Patients who are aged at least 18 years; or
- In the case that the patient has died, who is survived by a person
(surviving partner) who was:
. The patient's partner immediately before the patient died;
. Living with the patient immediately before the patient died.
- In any other case where an individual is authorised under the regulations
to provide consent to the publication or dissemination of the
information.
Subsection (4) specifies that a person is taken to have been living with
his or her partner if, at a particular time, they were not living together
at that particular time due to:
- A temporary absence from each other; or
- Illness or infirmity of either or both of them.
This clause is intended to ensure that the Commission does not, in the
performance of its functions, disseminate any information that could be
used to identify a particular patient without obtaining proper consent.
Clause 59- Concurrent operation of State and Territory laws etc.
This clause specifies that State and Territory laws are not excluded from
concurrently operating with this Act.
Clause 60 - Regulations
This clause provides for the Governor-General to make regulations required
or permitted by the Act or which are necessary or convenient for carrying
out or giving effect to the Act.
For example, this Bill enables regulations to be made in relation to:
- The functions of the Commission.
- Remuneration of Commission Board members, including allowances.
- Remuneration of the CEO of the Commission, including allowances.