Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL HEALTH REFORM AMENDMENT (ADMINISTRATOR AND NATIONAL HEALTH FUNDING
BODY) BILL 2012
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health,
the Hon. Tanya Plibersek, MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF
REPRESENTATIVES TO THE BILL AS INTRODUCED
TABLE OF CONTENTS
INTRODUCTION AND OUTLINE 2
FINANCIAL IMPACT 2
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS 2
COMMENCEMENT 2
SCHEDULE 1 - AMENDMENTS 3
ADDITION OF NEW CHAPTER 5 - ADMINISTRATOR OF THE FUNDING POOL 3
ADDITION OF CHAPTER 6 - MISCELLANEOUS 10
TRANSITIONAL AND VALIDATION PROVISIONS 11
NOTES
In this Explanatory Memorandum, a reference to a Part or a section in bold
italics (eg Part 3.2 or section 186) is a reference to a Part or a section
as it will appear in the National Health Reform Act 2011 as amended by this
Bill.
A reference to an item in bold type (item 120) is a reference to an item in
Schedule 1 to this Bill.
A reference to "states" includes a reference to the Australian Capital
Territory and the Northern Territory.
NATIONAL HEALTH REFORM AMENDMENT (ADMINISTRATOR AND NATIONAL HEALTH FUNDING
BODY) BILL 2012
INTRODUCTION AND OUTLINE
This Bill once enacted establishes the Administrator of the National Health
Funding Pool and the National Health Funding Body ("Funding Body") as set
out in the National Health Reform Agreement ("the Agreement") agreed to by
the Council of Australian Governments (COAG) on 2 August 2011.
The Bill will amend the National Health Reform Act 2011 which establishes
the Australian Commission on Safety and Quality in Health Care, the
National Health Performance Authority, and the Independent Hospital Pricing
Authority (hereinafter "the Commission", "the Performance Authority" and
"the Pricing Authority") to include provisions regarding the appointment of
the Administrator and the Administrator's powers and functions, as well as
the establishment and function of the Funding Body.
Under the Agreement the Administrator is to be an individual appointed
under the laws of the Commonwealth and all states. The provisions in this
Bill setting out:
. how the Administrator is to be appointed; and
. how the Administrator may be suspended from office or have his or her
appointment terminated
appear in corresponding legislation that is being introduced or will
shortly be introduced in the states.
Some functions of the Administrator will be set out in Commonwealth law,
some in state law, and some will appear in both Commonwealth and state law.
Together, the laws will confer on the Administrator the functions set out
in the Agreement.
FINANCIAL IMPACT
The Government will allocate funding for the Administrator and the Funding
Body in the 2012-13 Budget.
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
In particular, article 12(1) of the 1966 International Covenant on
Economic, Cultural and Social Rights recognises "the right of everyone to
the enjoyment of the highest attainable standard of physical and mental
health". The Agreement, with its focus on improving access to and the
efficiency and sustainability of public hospital services, is an important
step towards ensuring this right can be enjoyed by all Australians.
The Administrator and the Funding Body to be established under the Bill are
integral to the new hospital funding arrangements in the Agreement.
COMMENCEMENT
Clause 2 provides that the Bill once enacted commences on the day the Act
receives Royal Assent.
SCHEDULE 1 - AMENDMENTS
The Schedule amends the National Health Reform Act 2011 (the Reform Act) to
provide for consequential and other amendments in view of the inclusion of
provisions relating to the Administrator and the National Health Funding
Body.
Sections 3 and 4 ("Object" and "Simplified Outline", respectively) of the
Reform Act are amended to include a reference to the Administrator and the
Funding Body (items 1-2).
Insertions of new definitions in relation to the Administrator, the Funding
Body and other related matters are made to section 5 by items 3 to 20.
A minor technical amendment is made to subsections 54A(3), 113(3) and
213(3) by items 21, 23 and 25 respectively to provide that the limitation
on officials of the Commission, the Performance Authority and the Pricing
Authority being required to disclose information to a court or tribunal
extends to persons who have previously been officials.
Consequential amendments are made by items 22, 24 and 26 to subsections
54H(1), 120(1), and 220(1) to allow the Commission, the Performance
Authority and the Pricing Authority to disclose protected information to
the Administrator or the Funding Body.
ADDITION OF NEW CHAPTER 5 - ADMINISTRATOR OF THE FUNDING POOL
Outline of Chapter
New Chapter 5 (inserted by item 27) establishes the Administrator and
provides for his or her appointment, functions, powers, and obligations. It
also establishes the Funding Body to assist the Administrator.
The Administrator is an important element of the National Health Reform
Agreement, which provides for Commonwealth payments to the states for
public hospital services, together with some state payments, to be paid
through a National Health Funding Pool operated by the Administrator.
Other state payments are to flow through State Managed Funds. The
Administrator is to report on the operation of the National Health Funding
Pool and State Managed Funds.
The Administrator is also required to calculate the amount of the
Commonwealth payments and advise the Treasurer to allow Commonwealth
payments to be made into the Pool.
Detailed Explanation
Part 5.1 - Introduction
This Part provides a simplified outline of the Chapter [section 228]. It
also provides that Part 5.2 is to be interpreted in accordance with
Schedule 7 to the Health Practitioner Regulation National Law [section
229]. This is because Part 5.2 establishing the office of the
Administrator and setting out its functions and obligations will appear in
the same way in the laws of all jurisdictions, and it is important that it
be interpreted in the same way in each case.
The Standing Council on Health will play an important role in appointing
the Administrator, and where necessary suspending or terminating the
appointment. Section 230 defines the Council, provides that for the
purposes of Part 5.2 it is made up of one member from the Commonwealth and
each state and territory, and specifies the need for requests and decisions
to be made in writing.
Part 5.2 - Administrator of the Funding Pool
This Part establishes the position of the Administrator and sets out the
Administrator's powers, functions and responsibilities.
The intention in the Agreement is that the Administrator will be appointed
under a law of the Commonwealth and each state, and that the functions and
powers of the Administrator will also be set out in laws of the
Commonwealth and each state. Each state will be seeking passage of
legislation that mirrors the provisions in this Part relating to the
appointment, suspension from office, and termination of appointment.
However, some of the functions of the Administrator will be set out only in
the laws of the states, others only in the law of the Commonwealth, and
some in both laws.
It is Parliament's intention that the provisions of this Act and
corresponding state legislation will result in a single person being
appointed as the Administrator in all jurisdictions, and that the
Administrator may exercise the functions of the Administrator in relation
to one, two, more or all jurisdictions concurrently. A reference in the Act
to a function conferred on the Administrator under the Act (other than in
subsection 238(1)) includes a reference to a function under a corresponding
law of a state [section 231].
The Minister is to appoint by instrument in writing a person as
Administrator after the Standing Council on Health (the Council) has agreed
on the person to be appointed, and the date, period and terms and
conditions of appointment. Before the Council decides on an appointment,
the Chair of the Council must give members an opportunity to nominate an
individual for appointment. The Administrator may be appointed for up to
five years, but is eligible for reappointment [section 232]. He or she is
to be paid the remuneration determined by the Remuneration Tribunal
[section 233].
The Chair of the Council is required to suspend the Administrator from
office in all jurisdictions by instrument in writing notified to all
Council members if requested to do so by the Minister, or by three state
Ministers. A Minister may only request the Chair to suspend the
Administrator if the Minister is satisfied that:
. the Administrator is unable to perform his or her functions
satisfactorily for any reason; or
. has failed to comply with his or her obligations or duties; or
. has been accused or convicted of an offence that carries a penalty of
imprisonment; or
. has or may become bankrupt [subsections 234(1) to 234(3)].
The suspension is lifted after 60 days unless within that period the
Administrator:
. is removed or resigns under section 235; or
. a majority of the Council agree to terminate the suspension; or
. a majority of the Council agree to extend the suspension for a
specified period [subsection 234(4)].
The Chair is only to suspend the Administrator from office within 90 days
of the end of an earlier period of suspension at the request of a majority
of the Council [subsection 234(5)].
If a majority of the Council agree to remove the Administrator from office,
the Minister must remove the Administrator from office by instrument in
writing taking effect on a date agreed to by the Council [subsections
235(1) and (2)].
The Administrator may resign by notice in writing given to the Chair of the
Council, with effect from the date notified by the Chair to Council members
[subsections 235(3) and (4)].
The Chair of the Council may appoint a person to act as the Administrator
if the office is vacant or the Administrator is suspended or absent from
duty. The appointment must be from a panel of persons agreed by the
Council, and in accordance with any procedure agreed by the Council
[section 236].
The staff and facilities to assist the Administrator in performing his or
her functions are to be provided by the National Health Funding Body
established under Part 5.3. However, the Administrator is not entitled to
delegate any function conferred under the Act [section 237]. This does not
mean that the Administrator must personally physically make payments from a
State Pool Account, for example - rather that he or she must personally
authorise payments to be made. A staff member may assist the Administrator
in transmitting payment directions to the Reserve Bank. Similarly, the
Administrator does not have to calculate personally the amount of
Commonwealth funding payable to a state. It is sufficient if the
Administrator signs off as accurate and meeting the requirements of the Act
a calculation made by somebody else.
The functions of the Administrator appearing in the Commonwealth law are
set out in subsection 238(1) as advising the Treasurer on amounts to be
paid into State Pool Accounts by the Commonwealth, monitoring payments of
those amounts, and reporting publicly on payments into and out of the
accounts and on other matters as required under Division 2 of Part 5.2.
The functions of the Administrator appearing in laws of the states will be
advising the Treasurer on amounts to be paid into State Pool Accounts by
the Commonwealth, monitoring state payments into State Pool Accounts,
making payments from those accounts at the direction of the state Minister,
and reporting publicly on payments into and out of the accounts and on
other matters. However, under the Agreement (clauses B28f and B56) a state
Minister in directing the Administrator must ensure that payments result in
the distribution of Commonwealth funding in accordance with the advice
provided by the Administrator to the Commonwealth Treasurer under paragraph
238(1)(a) and notified to state Ministers under subsection 245(3). A
provision to this effect will appear in the laws of the states.
The Administrator and the officials of the Funding Body are not subject to
the control or direction of any Commonwealth Minister in exercising or
performing the functions [subsection 238(2)]. However, in exercising or
performing the functions the Administrator must comply with any directions
given by COAG [subsection 238(3)], given in accordance with a written
resolution of COAG passed in accordance with procedures that it has
determined. These directions must be notified in writing to and made
publicly available by the Administrator [subsection 238(4)]. These
directions are not legislative instruments because their effect is "to
approve a manner of doing an act", and as such they are exempt from the
Legislative Instruments Act 2003 because of regulations made under section
7 of that Act.
Division 2 in this Part deals with financial management and reporting by
the Administrator.
The Administrator is to develop and apply appropriate financial management
policies and procedures, keep proper records, and prepare financial
statements [section 239].
The Administrator is to provide to all jurisdictions and to publish monthly
reports on payments into and out of State Pool Accounts and State Managed
Funds, and on related activity levels [section 240].
Within four months of the end of the financial year the Administrator is to
provide to all jurisdictions and to publish an annual report, including
information on payments into and out of State Pool Accounts and State
Managed Funds, and on related activity levels. The report is to include a
financial statement combining the audited financial statements of each
State Pool Account, and must be tabled by the responsible Minister in each
jurisdiction [section 241].
After each financial year the Administrator is to prepare a financial
statement for each State Pool Account and a combined financial statement
[section 242]. The statements for State Pool Accounts are to be audited by
the Auditor-General of the relevant state [section 243].
The Auditor-General may carry out a performance audit of the exercise of
performance of the functions of the Administrator. If the Auditor-General
plans an audit he or she must notify all other Auditors-General to allow
other Auditors-General wishing to conduct an audit at the same time to co-
ordinate the conduct of the audits [section 244]. To avoid doubt,
subsection 244(4) provides that the Auditor-General is to conduct the audit
in accordance with the Auditor-General Act 1997.
As the Administrator is required to report on State Managed Funds which he
or she will not operate, state National Health Reform laws will require
Ministers to provide information to the Administrator about payments into
and out of the Funds and the services and functions they funded.
The Administrator must provide to the Minister any information requested by
the Minister in the time set by the Minister, and must also provide to the
Minister for each jurisdiction a copy of advice provided to the Treasurer
about the basis on which the Administrator has calculated the payments to
be paid into State Pool Accounts by the Commonwealth. The Administrator
may provide information relating to a jurisdiction to the Minister for the
jurisdiction. Information relating to a jurisdiction that is made
available by the Administrator to another jurisdiction may only be released
by the second jurisdiction in accordance with arrangements approved by the
Minister for the first jurisdiction [section 245].
Reports, financial statements and information statements under sections
240, 241, 242 and 245 are to be prepared in accordance with any directions
given by COAG under subsection 238(3) [section 246].
Division 3 in this Part [sections 247 to 250] sets out the Constitutional
limits for the Administrator's functions [section 247] and provides for the
conferral of functions and powers on the Funding Body and officers of the
Commonwealth under state law.
Section 248 provides that a state National Health Reform law (a law of a
state giving effect to the Agreement - see item 11) may confer powers or
functions or impose duties on the Funding Body or another Commonwealth
officer, except to the extent to which the conferral or imposition would
contravene constitutional doctrines or exceed the legislative power of the
Commonwealth. It also provides that the Act is not intended to limit the
operation of a state law conferring functions or powers or imposing duties
to the extent to which that law can operate concurrently with the Act, nor
to limit the conferral of functions or powers or the imposition of duties
on the Funding Body or officer as a person appointed under a state law.
Section 249 provides that if a state National Health Reform law purports to
impose a duty on the Funding Body or another Commonwealth officer, the duty
is taken not to be imposed by the Act or any other Commonwealth law to the
extent to which imposition of the duty is within the powers of the state
and the imposition under the state law is consistent with the
constitutional doctrines restricting the duties that may be imposed on the
Funding Body or officer. However, if it is necessary to ensure the validity
of the purported imposition that it is imposed by a law of the
Commonwealth, it is taken to be imposed by the Act, and Parliament intends
to rely on all powers under the Constitution to support the imposition. The
duty is taken to be imposed by the Act only to the extent to which it is
within the legislative powers of the Commonwealth and is consistent with
the constitutional doctrines restricting the duties that may be imposed on
the Funding Body or officer.
Section 250 sets out that a state law imposes a duty if it confers a power
or function on the Funding Body or officer and the circumstances in which
the power or function is conferred oblige the Funding Body or officer to
exercise the power or perform the function.
The references in sections 248 to 250 to an officer of the Commonwealth are
intended to cover officers who may have powers or functions under the
Archives Act 1983, the Australian Information Commissioner Act 2010, the
Freedom of Information Act 1982, the Ombudsman Act 1976, or the Privacy Act
1988, which will be applied as state legislation under the state National
Health Reform Laws.
Part 5.3 - National Health Funding Body
The Funding Body is established under section 251, with the function of
assisting the Administrator in the performance of the Administrator's
functions including the Administrator's functions under corresponding state
laws [section 252].
There is to be a Chief Executive Officer (CEO) for the Funding Body
(referred to as the Funding Body CEO) responsible for the day to day
administration of the Funding Body [sections 253 and 254].
The Funding Body CEO is appointed by the Minister by written instrument
after consultation with the Administrator. The Funding Body CEO holds
office on a full-time basis and for the period specified in the instrument
of appointment which must not exceed five years, but can be reappointed
[section 255].
The Minister is authorised to appoint an acting Funding Body CEO in
specified circumstances (eg a vacancy in the office) after consultation
with the Administrator [section 256].
The requirement for the Minister to consult with the Administrator before
appointing the Funding Body CEO or acting CEO under subsections 255(2) and
256(2) applies only if the Administrator has been appointed. This is
designed to allow the appointment of the CEO or acting CEO to ensure the
Funding Body can begin operations, even if the formal processes for
appointment of the Administrator have not been finalised.
The Funding Body CEO must not engage in other paid employment without the
approval of the Minister [section 257]
The Funding Body CEO is to be paid remuneration that is determined by the
Remuneration Tribunal and is to be paid allowances that are prescribed in
the regulations. If no determination of that remuneration by the
Remuneration Tribunal is in operation, the Funding Body CEO is to be paid
that remuneration that is prescribed by the regulations [section 258].
The Remuneration Tribunal is to determine the recreation leave entitlements
of the Funding Body CEO, and the Minister may grant the Funding Body CEO
other leave of absence [section 259].
The Funding Body CEO must disclose to the Minister and the Administrator,
in writing, all pecuniary or other interests that the CEO has or acquires
that conflict or may conflict with the performance of his or her duties
[section 260].
The Funding Body CEO may resign his or her appointment by giving the
Minister a written resignation, taking effect on the day of receipt by the
Minister or on a later day specified in the resignation [section 261].
The Minister may terminate the Funding Body CEO's appointment, after
consultation with the Administrator, for misbehaviour, physical or mental
incapacity, or if the Minister is satisfied that the CEO's performance has
been unsatisfactory [subsections 262(1) to (3)]. The Minister must
terminate the Funding Body CEO's appointment in the event of bankruptcy,
frequent absence without leave, concealing a conflict of interest or
engaging in unapproved employment [subsection 262(4)].
The Minister may determine other terms and conditions of appointment for
the Funding Body CEO in relation to matters not specified in the Act after
consultation with the Administrator [section 263].
Division 3 in this Part sets out arrangements for staff, officers assisting
the Funding Body, and consultants, as well as for the Funding Body's annual
report.
Funding Body staff are to be engaged under the Public Service Act 1999, and
for the purposes of that Act, the Funding Body CEO and staff together
constitute a Statutory Agency, and the Funding Body CEO is the head of that
Statutory Agency [section 264].
The Funding Body may also use other Commonwealth and or state public
servants and employees in connection with the performance of the functions
of the Administrator [section 265]. Similarly, consultants having suitable
qualifications and experience may also be engaged on terms and conditions
determined by the Funding Body CEO [section 266].
The Funding Body CEO must prepare an annual report after the end of each
financial year on the operations of the Funding Body and provide it to the
Minister for presentation to Parliament.
The Funding Body CEO must also give a copy to responsible Ministers for the
states and territories [section 267].
Part 5.4 - Secrecy
A person commits an offence if that person is or has been the
Administrator, has obtained information in the course of their work
relating to another person ("protected information") and discloses or use
the information [subsection 268(1)].
The penalty for the offence (two years imprisonment or 120 penalty units or
both) is consistent with penalties for similar offences under other parts
of the Reform Act and other health legislation such as the National Health
Act 1953, Health Insurance Act 1973 and Private Health Insurance Act 2007
and reflects the potential seriousness of improper use or disclosure of
protected information.
Under subsection 13.3(3) of the Criminal Code a defendant being prosecuted
for this offence and wishing to rely on an exception is required to
demonstrate that disclosure was covered by one of the exceptions to the
offence. It would be difficult for the prosecution to bear the burden of
demonstrating that the disclosure was not covered by one of the exceptions,
whereas a person disclosing information should reasonably be aware of the
basis for their disclosure.
A person who is or has been the Administrator is not to be required to
produce or disclose protected information to a court or tribunal except
where it is necessary for giving effect to the Act [subsection 268(3)].
A number of exceptions from the prohibition of disclosure or use of
protected information are set out in subsection 268(2) and include
disclosure or use that is:
. authorised by the Act or a National Health Reform law of a state or
territory [paragraph 268(2)(a)];
. in compliance with a law of the Commonwealth or a law of a state or
territory [paragraph 268(2)(b)];
. for the purposes of this Act or a National Health Reform law of a
state or territory [paragraph 268(2)(c)];
. for the purposes of the performance of the functions of the
Administrator under this Act or a National Health Reform law of a
state or territory [paragraph 268(2)(d)];
. in the course of the Administrator's employment or services as the
Administrator [paragraph 268(2)(e)];
. in accordance with a direction given by COAG under subsection 238(3)
[paragraph 268(2)(f)];
. to the Treasurer of the Commonwealth or a state or territory, or to
the responsible Minister for the Commonwealth or a state or territory
[paragraph 268(2)(g)];
and disclosure:
. of information about a person if the person has consented [paragraph
268(2)(h)]; and
. of information that is already publicly available [paragraph
268(2)(i)].
A person commits an offence if that person is or has been an official of
the Funding Body, has obtained information in the course of their work
relating to another person ("protected information") and discloses or uses
the information, unless the disclosure or use is authorised by Division 2
of Part 5.4 or is compliant with another Commonwealth or a prescribed state
law [subsections 269(1) and (2)].
The penalty for the offence (two years imprisonment or 120 penalty units or
both) is consistent with penalties for similar offences under other parts
of the Reform Act and other health legislation such as the National Health
Act 1953, Health Insurance Act 1973 and Private Health Insurance Act 2007
and reflects the potential seriousness of improper use or disclosure of
protected information.
Under subsection 13.3(3) of the Criminal Code a defendant being prosecuted
for this offence and wishing to rely on an exception is required to
demonstrate that disclosure was covered by one of the exceptions to the
offence. It would be difficult for the prosecution to bear the burden of
demonstrating that the disclosure was not covered by one of the exceptions,
whereas a person disclosing information should reasonably be aware of the
basis for their disclosure.
A person who is or has been an official of the Funding Body is not to be
required to produce or disclose protected information to a court or
tribunal except where it is necessary for giving
effect to the Act [subsection 269(3)].
The exceptions from the prohibition for disclosure of protected information
set out in Division 2 include:
. disclosure or use for the purposes of the Act by an official of the
Funding Body, for the performance Funding Body's functions, or in the
course of the official's employment or service as an official of the
Funding Body [section 270];
. disclosure by an official of the Funding Body to the Minister or the
Treasurer [section 271];
. disclosure by an official of the Funding Body to a state or territory
Health Minister [section 272];
. disclosure by an official of the Funding Body to the Secretary of the
Department of Health and Ageing or the head of the Health Department
of a state or territory [section 273];
. disclosure by an official of the Funding Body to a Royal Commission
(in which case the CEO of the Funding Body can impose conditions on
the use of the information) [section 274];
. disclosure to specified bodies, agencies or persons where the
Administrator or the CEO of the Funding Body is satisfied that the
protected information will enable or assist those bodies or agencies
or persons perform or exercise any of its functions or powers
[section 275];
. disclosure to an agency, body or person where the Administrator or the
CEO of the Funding Body is satisfied that the particular protected
information will assist the agency, body or person to conduct research
[section 276] ;
. disclosure of information about the affairs of a person if the person
has consented [section 277]; and
. disclosure of information that is already publicly available [section
278].
An instrument imposing a condition on release of information to a Royal
Commission made under subsection 274(2) is not a legislative instrument
because it relates only to a particular release and does not determine the
law or alters the content of the law.
ADDITION OF CHAPTER 6 - MISCELLANEOUS
This Chapter includes several provisions relating to privacy and
confidentiality, a statement of the relation between this Act and state
laws, the non-application of the Commonwealth Authorities and Companies Act
1997 and a regulation making power. The provisions largely exist already as
Chapter 5 in the Act, which is being repealed and remade to allow for
easier numbering of provisions.
The Commission, the Pricing Authority, the Performance Authority, the
Administrator or the Funding Body must not publish or disseminate
information likely to lead to the identification of a particular patient
without consent [subsections 279(1) and (2)]. Consent may be given by:
. the patient, if the patient is aged 18 or more; or
. if the patient is dead, the patient's surviving partner who was his or
her partner immediately before the patient died and living with him or
her immediately before he or she died; or
. a person authorised under the regulations to give consent to the
publication or dissemination of the information [subsection 279(3)].
For the purposes of subsection 279(3), a person is taken to have been
living with his or her partner at a particular time if they were not living
together at that time only because of a temporary absence from each other
or illness or infirmity of either both of them [subsection 279(4)].
The Reform Act is intended to operate concurrently with state or territory
law to the extent possible [section 280].
The Agreement provides that the Performance Authority and the Pricing
Authority are to be covered by the Financial Management Act 1997.
Section 281 gives effect to this intention by providing that the
Commonwealth Authorities and Companies Act 1997 does not apply to the
bodies.
Regulations can be made by the Governor-General, prescribing matters
required or permitted to be prescribed under the Act, or necessary or
convenient to give effect to the Act [subsection 282(1)].
In particular, the regulations may modify the operation of a number of
Commonwealth Acts in relation to things done by or in relation to the
Administrator, the Funding Body CEO or the Funding Body. These regulations
may only be made with the agreement all members of the Standing Council on
Health as it is constituted for the purposes of Part 5.2 [subsections
^282(2) and (3)].
These provisions are necessary to ensure that the Administrator is subject
to only one set of administrative law and related requirements. As an
officer appointed severally by the Commonwealth and all eight states, the
Administrator would potentially be required to comply with nine different
sets of archives, freedom of information, ombudsman and privacy regimes.
The simple solution of the states adopting the Commonwealth legislation as
it stands would not be acceptable to the states, as Commonwealth
legislation would not contain appropriate references to state entities.
For example, if the Administrator was to be given a copy of state Cabinet
material, this would not fall under the absolute exemption from disclosure
afforded to Commonwealth Cabinet documents under the Freedom of Information
Act 1982.
It is envisaged that the regulations will modify the Commonwealth Acts so
that they could apply effectively as laws of the states, conferring
appropriate rights and obligations on state responsible Ministers and
referring appropriately to state entities.
TRANSITIONAL AND VALIDATION PROVISIONS
Item 28 deals with circumstances in which not all jurisdictions have passed
a National Health Reform law.
Sub-item (1) provides that if, on the commencement of Part 5.2 relating to
the Administrator, another jurisdiction has not enacted corresponding
provisions, then the responsible Minister for that jurisdiction for the
purposes of those provisions is the Minister for Health. It is necessary
to identify in the legislation the Minister for Health for transitional
purposes to enable that Minister to act in relation to the Administrator.
This would include, for example, participating in the appointment of an
Administrator.
Sub-item (2) provides that any action undertaken by a Commonwealth or State
Minister before the commencement of the Part relating to the Administrator
that would have been valid if that Part and the corresponding provisions of
the other jurisdictions had been in force at the time is taken to be valid.
This would allow for the appointment of an Administrator in all
jurisdictions even where a particular jurisdiction had not enacted the
legislation.
Index]
[Search]
[Download]
[Bill]
[Help]