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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL HEALTH REFORM AMENDMENT (NATIONAL HEALTH PERFORMANCE AUTHORITY)
BILL 2011
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Ageing,
the Hon. Nicola Roxon, MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF
REPRESENTATIVES TO THE BILL AS INTRODUCED
TABLE OF CONTENTS
INTRODUCTION 2
FINANCIAL IMPACT 3
COMMENCEMENT 4
SCHEDULE 1 -AMENDMENTS 5
AMENDMENTS TO THE LONG AND SHORT TITLES 5
AMENDMENTS TO CHAPTER 1 - PRELIMINARY 6
AMENDMENTS TO CHAPTER 2 - AUSTRALIAN COMMISSION ON SAFETY AND QUALITY IN
HEALTH CARE 7
ADDITION OF CHAPTER 3 - NATIONAL HEALTH PERFORMANCE AUTHORITY 9
ADDITION OF CHAPTER 4 - MISCELLANEOUS 20
NOTES
In this Explanatory Memorandum, a reference to a section in bold italics
(section 60) is a reference to 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 of this Bill.
A reference to "the States" includes the Australian Capital Territory and
the Northern Territory, and a reference to "State" includes a reference to
either of the Territories.
NATIONAL HEALTH REFORM AMENDMENT (NATIONAL HEALTH PERFORMANCE AUTHORITY)
BILL 2011
INTRODUCTION AND OUTLINE
This Bill is intended to establish the National Health Performance
Authority ("Performance Authority") envisaged by the National Health and
Hospitals Network Agreement as settled by the Council of Australian
Governments (COAG) meeting in April 2010 and reconfirmed in the Heads of
Agreement - National Health Reform of 13 February 2011. Clause 68 of the
Heads of Agreement - National Health Reform provides that the Heads of
Agreement will lapse after all parties sign the National Health Reform
Agreement.
The National Health Reform Bill 2010 will establish the Australian
Commission on Safety and Quality in Health Care ("the Commission"). If it
is enacted it will become the National Health and Hospitals Network Act
2011. The current Bill amends that Act to change the title, divide the Act
into Chapters and add several new Chapters. Broadly the changes will
involve:
. changing the title of the Act to the National Health Reform Act 2011,
reflecting the outcomes of the COAG meeting of 13 February 2011;
. amending Chapter 1 to change the objects of the Act to include
reference to the Performance Authority, and to include a number of new
definitions related to the new authority;
. amending Chapter 2 dealing with the Commission to distinguish between
provisions relating to the members and Chief Executive Officer of the
Commission and the new authority, and to introduce provisions relating
to secrecy and disclosure of information by the Commission;
. adding a new Chapter 3 to establish the Performance Authority;
. adding a new Chapter 4 with miscellaneous machinery provisions.
The Bill includes the following provisions to address a number of issues
raised by States and Territories:
. a legislative acknowledgement of the role of state and territory
health ministers as health system managers of public hospitals and
Local Hospital Networks (LHN), and requiring the Performance Authority
to have regard to that role when performing its functions;
. requiring the agreement of the Council of Australian Governments
(COAG) before additional functions can be conferred on the Performance
Authority;
. requiring COAG agreement to the extension of the scope of the
Performance Authority's monitoring and reporting functions;
. the definitions of LHNs and public hospitals clarify that the Minister
cannot unilaterally determine what is a public hospital or LHN in a
state or territory;
. to provide that the Performance Authority is required to notify the
relevant state/territory health minister when preparing a report
showing poor performance by an LHN or public hospital for the primary
purpose of assisting the relevant state/territory health minister to
carry out their responsibilities as health system managers. The
Performance Authority would also be required to give a final draft
report to the relevant state/territory health minister following
notification of an assessment of possible poor performance by an LHN
or public hospital within their jurisdiction, and invite comments,
before finalising the report;
. allowing COAG to set out policy principles and requiring that the
Performance Authority must not act inconsistently with those
principles when performing its functions;
. empowering the Performance Authority to appoint the Chief Executive
Officer (CEO) of the Performance Authority following consultation with
the Minister, and a range of consequential amendments which transfer
the Minister's powers in relation to the CEO to the Performance
Authority;
. empowering the Performance Authority to terminate the CEO's
appointment if it is unsatisfied with his or her performance;
. providing that the Performance Authority may not delegate its powers
or functions under Part 3.7 of the Bill. This prevents a situation
where the Performance Authority could otherwise have delegated
responsibility for settling such matters as the leave entitlements of
the CEO to the CEO;
. explicitly requiring the Performance Authority to provide a copy of
the draft strategic plan to the states and territories when preparing
its strategic plan and inviting each state and territory health
minister to provide comments. The Performance Authority will be
explicitly required to have regard to any comments provided by state
and territory health ministers in response to the invitation;
. inserting a new clause in the secrecy and disclosure provisions in
Part 3.12 to enable the Performance Authority to disclose "protected
information" to state and Territory Ministers; and
. transitional provisions in the Bill which relate to the appointment of
the Performance Authority CEO to allow the Minister to appoint an
interim CEO in the first 6 months of operation of the Performance
Authority.
The Government intends to introduce further legislation to amend the Act to
establish the Independent Hospital Pricing Authority after further
consultation with the States.
FINANCIAL IMPACT
In the 2010-11 Budget the Government allocated funding of $118.6 million
for the Performance Authority over four years as shown in the table below.
|Expense ($m) |
|2010-11 |2011-12 |2012-13 |2013-14 | |Performance Authority |22.3 |23.6
|29.4 |34.2 | |
The Government also decided to offset part of the cost of the new
arrangements by adjusting funding for the existing Hospital Accountability
and Performance Program to ensure there is no duplication. This offset
will provide a saving of $9.1 million ($5.1 million in 2011-12 and
$3.9 million in 2012-13), resulting in an estimated net cost of the
Performance Authority of $109.5 million over four years.
COMMENCEMENT
Clause 2 in the Bill provides that the Bill, apart from the schedules,
commences on the day the Bill receives Royal Assent.
Schedule 1, which contains the substance of the amendments and new
provisions in the Bill, commences on proclamation on a day which must be
later than the day on which section 3 (the first substantive section) of
the National Health and Hospitals Network Act 2011 commences. A contingent
commencement provision of this nature is required as the Act to be amended
has not yet achieved passage through Parliament.
However, if the Schedule is not proclaimed within six months of the later
of:
. the day after the Bill receives Royal Assent, or
. the day on which section 3 of the National Health and Hospitals
Network Act 2011 commences,
then the amendments commence on the next day.
The Government intends to set a date by proclamation which will allow the
members of the Performance Authority to be appointed (under section 4 of
the Acts Interpretation Act 1901) before the Authority comes into being.
SCHEDULE 1 -AMENDMENTS
National Health and Hospitals Network Act 2011
AMENDMENTS TO THE LONG AND SHORT TITLES
Items 1 and 2 amend the long title of the Act to remove the reference to
the National Health and Hospitals Network, and amend the short title to
National Health Reform Act 2011, consistent with the outcome of the COAG
meeting of 13 February 2011.
AMENDMENTS TO CHAPTER 1 - PRELIMINARY
A new objects section [section 3] and simplified outline [section 4] are
added by items 4 and 5 in Schedule 1 of the Bill. (Item 3 inserts a
Chapter heading for Chapter 1.)
A series of largely self-explanatory amendments to existing definitions and
insertions of new definitions are made to section 5 by items 6 to 35.
The definition of "local hospital network" inserted by item 15 includes a
capacity for the Minister to declare entities and facilities to be local
hospital networks even if they are not a body corporate established by a
State and known as a local hospital network. This is because some States
have indicated a desire to use different terminology, or establish local
hospital networks on a non-statutory basis. In at least one jurisdiction
the State proposes to treat a network of hospitals established by a
religious order on the same basis as hospital networks created under State
law. Without this amendment that network could not be treated as a local
hospital network under the Act.
Items 26 and 29 insert definitions of "private hospital" and "public
hospital" as facilities specified by the Minister in a legislative
instrument.
The definitions of a 'public hospital' and 'Local Hospital Network' (LHN)
provide further acknowledgement of the role of states and territories as
health system managers of public hospitals and LHNs by removing ambiguity
in these definitions which could have resulted in them being interpreted as
providing the Minister with a unilateral power to determine what was an LHN
or public hospital. The operation of these definitions requires that the
written agreement of the relevant state/territory health minister is
required before the Minister can make a legislative instrument that
characterises a body as a public hospital or LHN.
These definitions will mainly be used by the Performance Authority in
determining the scope of their work. However, they will also apply in
subsection 20(3), which sets out the qualifications for appointment of
members of the Commission Board, and provides for members with expertise in
the general management of public or private hospitals. To ensure the
validity of an appointment by the Minister of Commission Board members
using section 4 of the Acts Interpretation Act 1901 after Royal Assent to
the National Health and Hospitals Network Act 2011 but before this Schedule
comes into effect, transitional item 131 provides that the terms "private
hospital" and "public hospital" are taken to have had their ordinary
meanings.
The definitions of "protected Commission information" and "protected
Performance Authority information" at items 27 and 28 are used in the
secrecy and information disclosure provisions relating to these bodies.
Amendments made to section 6 dealing with vacancies have the effect of
setting the minimum number of members of the Performance Authority at seven
(including the Chair and Deputy Chair) (items 36 to 39).
AMENDMENTS TO CHAPTER 2 - AUSTRALIAN COMMISSION ON SAFETY AND QUALITY IN
HEALTH CARE
A new section 7A is added setting out a simplified outline of the Chapter
(item 40 of Schedule 1 to the Bill).
A series of other mainly technical amendments are made by items 41 to 129
of Schedule 1 to the Bill to divide the Chapter into Parts and to change
references to Chair, Board, board member and CEO to "Commission Chair" etc,
to distinguish them from the Chair, members and CEO of the new Performance
Authority.
Item 125 repeals subsections 52(5) and (6) in the Act, which provide that
reports and information prepared by the Commission in response to a request
from the Minister are not legislative instruments. This is because the
provisions are unnecessary, as the documents are clearly not legislative
instruments.
Item 127 adds a new Part 2.7 dealing with secrecy and disclosure of
information in relation to the Commission. This Part provides that a
person that is or has been an official of the Commission (including
members, the CEO, staff and consultants) and has obtained information in
the course of their work relating to another person ("protected
information") commits an offence if they disclose or use the information,
unless the disclosure or use is authorised by Part 2.7 or is compliant with
another Commonwealth or a prescribed State law [subsections 54A(1) and
(2)].
It also provides that a person who is a member of a committee established
by the Commission under section 50 and who receives protected Commission
information under subsection 54C(1) commits an offence if they disclose or
use the information, unless the disclosure or use is for the purposes of
the Act, including the performance of the functions of the committee, or is
in the course of the person's service on the committee [subsections 54C(2)
and (3)].
The penalty for the offences (two years imprisonment or 120 penalty units
or both) is consistent with penalties for similar offences under 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.
An official of the Commission 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 54A(3)].
The exceptions from the offence set out in the Part include:
. disclosure or use for the purposes of the Act, for the performance of
the Commission's functions, or in the course of the official's
employment or service with the Commission [section 54B];
. disclosure to a Commission committee [section 54C];
. disclosure to the Minister [section 54D];
. disclosure to the Treasurer [section 54E];
. disclosure to the Secretary or an APS employee of the Department
authorised to receive it [section 54F];
. disclosure to a Royal Commission (in which case the Chair of the
Commission can impose conditions on the use of the information)
[section 54G];
. disclosure of information about the affairs of a person if the person
has consented [section 54K];
. disclosure of information that is already lawfully publicly available
[section 54L].
The conditions that may be imposed under section 54G are not a legislative
instrument as they are limited to the particular case, and are not a
general statement of the law.
There are two other exceptions. If the Chair of the Commission is
satisfied that particular protected information will assist one of a number
of specified agencies, bodies or individuals to perform or exercise their
powers or functions an authorised officer may disclose that information.
However, the recipient of the protected information must not use it for a
purpose other than that for which it was given [section 54H].
Similarly, if the Chair of the Commission is satisfied that particular
protected information will assist an agency, body or person to conduct
research an authorised officer may disclose that information, providing
that the information is not likely to enable the identification of a
particular patient [section 54J].
The Chair of the Commission may delegate any function or powers under this
Part to the Commission CEO, who must comply with any directions from the
Chair in exercising the delegation [section 54M].
ADDITION OF CHAPTER 3 - NATIONAL HEALTH PERFORMANCE AUTHORITY
Outline of Chapter
The Chapter (added by item 130 of Schedule 1 to the Bill) establishes the
National Health Performance Authority (the Performance Authority), and
provides for its functions, powers, membership, committees, staffing and
some elements of its procedures.
The Performance Authority is an important part of the national health
reform agenda, and will provide independent monitoring and reporting of the
performance of important elements of the health system.
Detailed Explanation
Part 3.1 - Introduction provides an outline of the Chapter [section 58].
The Bill inserts a new provision which acknowledges the role of state and
territory health ministers as health system managers in relation to LHNs
and public hospitals. The provision requires that the Performance
Authority is to have regard to this role of state and territory health
ministers in performing its functions in relation to LHNs and public
hospitals [section 58A].
Part 3.2 - Performance Authority's establishment, functions, powers and
liabilities
This Part establishes the Performance Authority as a statutory authority
[section 59] and sets out its functions [section 60].
These functions include monitoring and reporting on the performance of
local hospital networks, public and private hospitals, primary health care
organisations and other bodies that provide health care services, and
publishing such reports.
Other functions include formulating performance indicators, collecting,
analysing and interpreting performance information, and promoting,
supporting, encouraging, conducting and evaluating research. The Minister
may also specify functions for the Performance Authority, and request
advice about particular matters [paragraphs 60(1)(f) and (g)].
The Bill inserts a new requirement which provides that the Minister may
only confer additional functions on the Performance Authority under
proposed paragraph 60(1)(f) with the prior agreement of COAG. Subsection
60(3A) provides that COAG is to agree to the conferral of additional
functions by written resolution passed in accordance with procedures
determined by COAG.
The original Bill provided that the Minister may confer additional
functions on the Performance Authority without broader consultations.
Section 60 now better reflects the cooperative approach to health system
delivery and oversight encapsulated in the Heads of Agreement - National
Health Reform.
The Minister may make a legislative instrument setting out rules for the
Performance Authority in monitoring performance and preparing and
publishing reports [section 65].
Subsection 60(2) clarifies that hospital services provided in a hospital
are taken to be provided by a hospital. This ensures that services
provided by doctors who are not employed by a hospital are taken into
account in reporting on the hospital's performance.
Subsections 60(2A) and (2B) allow the scope of the Performance Authority's
functions to be amended by providing that subparagraph 60(1)(a)(v) only
applies to a particular body or organisation, or a class of bodies or
organisations, if COAG has agreed that it should by written resolution,
passed in accordance with procedures determined by COAG.
The original Bill provided that the Performance Authority's functions
include monitoring and reporting on the performance of LHNs, public and
private hospitals, primary health care organisations and other bodies or
organisations that provide health care services. The Performance Authority
is not currently limited as to what bodies or organisations its powers can
be amended to cover.
Subsection 60(3) clarifies that the Performance Authority may make use of
performance indicators and standards other than those it has formulated
itself in monitoring and reporting on performance. The performance
indicators it formulates may draw on any other specified material, as it
exists at a particular time or as it is varied [section 63]. This will
ensure that the Performance Authority can draw on the work of other bodies
working in the area, and avoid the administrative burden of reformulating
indicators as they are varied by other bodies.
The Minister may make a legislative instrument directing the Performance
Authority to formulate performance indicators about a particular matter
[section 66].
Subsection 60(4) clarifies that formulations of performance indicators by
the Performance Authority are not legislative instruments. This is because
they do not state the law, in that they do not impose duties or obligations
on any person.
Subsection 60(5) provides that instruments made by the Minister specifying
functions for the Performance Authority are not subject to the operation of
the Legislative Instruments Act 2003. While these instruments do impose
legal obligations on the Performance Authority, they are not general
statements of the law applying to any other person. It is expected that
the Minister will usually be making these instruments at the request of the
Australian Health Ministers' Conference or to give effect to COAG
agreements. It is not appropriate that instruments giving effect to
intergovernmental agreements to confer additional functions on the
Performance Authority should be subject to disallowance.
In carrying out its functions the Performance Authority is to have regard
to relevant intergovernmental agreements and COAG decisions, but may have
regard to other matters [section 61]. Once the National Health Reform
Agreement foreshadowed at the COAG meeting on 13 February 2011 is
concluded, this section will require the Performance Authority to have
regard to the Agreement.
If the Performance Authority prepares a report which shows poor performance
by a local hospital network, a public or a private hospital, a primary
health care organisations or another body that provides health care
services it must give a draft to the manager of the entity or facility and
invite written comments within 30 days before finalising the report. This
is intended to ensure that managers of health entities or facilities are
aware of any potential adverse reports by the Performance Authority, and
have an opportunity to provide mitigating information [section 62].
The Bill inserts new section 62 to set out new arrangements surrounding the
activities the Performance Authority will undertake in support of its
reporting function. The amendments clearly articulate the role of state
and territory health ministers as system managers in relation to LHNs and
public hospitals, and set out the primary object of the section to be one
of providing assistance to health ministers in carrying out their role as
health system managers in relation to LHNs and public hospitals.
Where the Performance Authority prepares a report which shows that an LHN
or public hospital is performing poorly, it must give a draft of the report
to the state/territory health minister. The provision allows the minister
30 days from receipt in which to respond to the Performance Authority. The
Performance Authority will be required to have regard to any comments
provided by a state/territory health minister.
The original Bill required the Performance Authority to provide a draft
report indicating poor performance by an entity to the manager of a
relevant entity, to allow contextual information to be provided which might
vary an assessment of performance. This has been amended resulting in the
consultation arrangements better reflecting the role of states and
territories as health system managers for public hospitals and LHNs.
After relevant state/territory health ministers have been provided the
opportunity to comment on a draft performance report, the Performance
Authority will be required to distribute a final draft to relevant
state/territory health ministers and provide a further 15 days in which to
comment. Again, the Performance Authority will be required to have regard
to any comments received from a state/territory health minister.
The Performance Authority will also be required to provide the manager of
an LHN or hospital with a copy of a report at least 15 days before
completion if that report will indicate poor performance on the part of the
LHN or hospital. The final draft report is provided for information only,
and does not carry with it an opportunity for the manager of an LHN or
hospital to provide feedback to the Performance Authority.
Amendment has been made in the original Bill that replaces a provision
which requires the Performance Authority to distribute a copy of a draft
report to the entity manager of the poorly performing LHN or hospital.
This is because the appropriate conduit for feedback on a report of poor
performance of an LHN or hospital in a state or territory is through the
relevant health minister as system manager. It is expected that state and
territory health ministers will organise matters within their own
administrative arrangements to ensure appropriate flows of communication
between LHNs, hospitals and the health minister.
Subsection (7) of section 62 will provide the Performance Authority with a
broad opportunity to consult with such persons and bodies as it considers
appropriate when preparing its reports. In the primary care space, this
will allow the Performance Authority to consult directly with Medicare
Locals, or with the Commonwealth Government as system manager of Medicare
Locals, if a report is to indicate poor performance.
Subsection (7) will also allow the Performance Authority to consult with
states and territories in relation to matters which do not involve public
hospitals or LHNs. For example, some states are involved in delivering
primary healthcare services in more remote locations. This subsection will
ensure that the Performance Authority can discuss a report of poor
performance with the relevant health minister.
Subsection (8) clarifies the operation of subsection (7) by removing the
obligation on the Performance Authority to provide natural justice directly
to LHNs and public hospitals which are likely to be the subject of a report
of poor performance. This reflects the lines of communication preferred by
state and territory health ministers, and the role of those ministers as
health system managers. As previously noted, it is expected that state and
territory health ministers will organise matters within their own
administrative arrangements to ensure appropriate flows of communication
between LHNs, hospitals and the health minister in relation to potential
reports of poor performance.
The removal of any obligation to provide procedural fairness is a
requirement given previous decision of the High Court which would otherwise
impose an obligation on the Performance Authority to provide procedural
fairness regardless of whether the other provisions of the legislation
attempted to limit the path of communications to that between the
Performance Authority and state/territory ministers.
The Constitutional limits for the Performance Authority's functions are set
out in section 64.
The Bill inserts section 66A, which provides that COAG may make written
policy principles about the performance of the Performance Authority's
functions. In turn, the Performance Authority is required to perform its
functions in a manner that is not inconsistent with the policy principles.
The Performance Authority will be required to publish the policy principles
on its website.
This provision ensures that COAG retains an ability to set parameters
around the operations of the Performance Authority in a way which is
binding and which does not rest in the hands of a single jurisdiction.
The policy principles are not legislative instruments.
The Performance Authority is given the power to do all things necessary or
convenient to be done in performing its functions. As a Commonwealth body
it contracts, holds assets and incurs liabilities, and receives money on
behalf of the Commonwealth, and has the privileges and immunities of the
Crown in right of the Commonwealth [sections 67 to 69].
Part 3.3 - Constitution and membership of the Performance Authority
This part establishes the Performance Authority as a body corporate with a
seal, able to deal with property and sue and be sued. Judicial bodies and
officers are to take judicial notice of the seal [section 70].
The Performance Authority is to consist of a Chair, a Deputy Chair and five
other members [section 71].
The Minister is responsible for appointing all the Board members, including
the Chair. The Deputy Chair must be appointed with the agreement of the
State Premiers. The five other members must be appointed with the
agreement of the Prime Minister and the State Premiers. At least one member
of the Performance Authority must have substantial experience or knowledge
of, and significant standing in, regional or rural health care. Members of
the Performance Authority can be appointed on either a full-time or part-
time basis [section 72].
A member can be appointed for up to a maximum five year period [section
73], but may be re-appointed.
The Minister may appoint persons to act as Chair, Deputy Chair or member of
the Performance Authority during vacancies or when appointed members are
absent [section 74].
Part 3.4 - Terms and conditions for members of the Performance Authority
Persons appointed to the Performance Authority are to receive remuneration
as determined by the Remuneration Tribunal, and allowances as prescribed in
the regulations [section 75]. Full-time members are entitled to recreation
leave as determined by the Tribunal, and other leave as determined by the
Minister, and
part-time members may be granted leave of absence by the Chair [section
79].
Members are required to disclose to the Minister all interests that
conflict or may conflict with their role as a member [section 76]. A
member must also inform other Performance Authority members as soon as they
become aware of an interest in a matter being considered by the Performance
Authority, and may not be present or take part in consideration of the
matter unless the other members determine otherwise. The affected member
must not be present or take part in deliberations surrounding a question of
their participation in matters which involve a conflict of interest
[section 77]. Full-time members of the Performance Authority may not take
other paid employment except with the approval of the Minister, and part-
time members may not take part in paid employment if it may conflict with
their appointment [section 78].
Members may resign by writing to the Minister [section 80], and the
Minister may terminate a Performance Authority member's appointment
[section 81].
The Minister may determine terms and conditions for Performance Authority
members in relation to matters not dealt with in the Act [section 82].
Part 3.5 - Decision-making by the Performance Authority
The Performance Authority is to hold the meetings necessary to perform its
functions, and the Chair may convene a meeting at any time [section 83].
The Performance Authority may determine the conduct of meetings subject to
this Part, and meetings must be minuted [sections 88 and 89].
The Chair, or if the Chair is absent, the Deputy Chair, is to preside at
meetings. If both are absent, the members present must appoint a member to
preside. Four members constitute a quorum, and a question is decided by a
majority of members present and voting. The person presiding at the meeting
has a casting vote as well as a deliberative vote [sections 84 to 86].
The Performance Authority may make a decision outside a meeting if it has
decided on a method for making such decisions in relation to particular
matters. Members who would not have been entitled to take part in such a
decision at a meeting, because of a conflict of interest, are not entitled
to take part in an out of meeting decision [section 87]. This ensures the
Performance Authority is able to operate flexibly and respond rapidly.
Part 3.6 - Delegation by the Performance Authority
The Performance Authority may delegate any or all of its powers and
functions (other than dealing with legislative instruments or advising the
Minister) to a member, the CEO, or an SES or acting SES employee. The
delegate must comply with any directions from the Performance Authority
[section 90].
Part 3.7 - Chief Executive Officer of the Performance Authority
There is to be a Chief Executive Officer (CEO) for the Performance
Authority (referred to as the Performance Authority CEO) responsible for
the day to day administration of the Performance Authority, acting in
accordance with the policies and directions of the Performance Authority
[sections 91 and 92].
However, the Performance Authority cannot direct the Performance Authority
CEO in performing functions or exercising powers under the Financial
Management and Accountability Act 1997 and Public Service Act 1999 [section
126].
The Performance Authority is to appoint the Performance Authority CEO after
consulting the Minister [section 93].
Item 132 in the transitional provisions in Part 2 of Schedule 1 of the Bill
provides that the Minister may appoint an acting CEO by written instrument
within the 6-month period beginning at the commencement of this item, so
long as no previous appointment has been made. This provision enables the
Minister to appoint an acting CEO to undertake functions in accordance with
the Act to allow commencement of the Performance Authority's activities
while the members locate a suitable permanent CEO.
The Performance Authority may determine other terms and conditions not
specified in the Act [section 101] with the written agreement of the
Minister. The Performance Authority CEO must not engage in other paid
employment without approval from the Performance Authority [section 95] and
material personal interests that conflict or may conflict with her or his
position must be disclosed to the Minister and the Performance Authority
[section 98].
The Performance Authority CEO's remuneration and recreation leave
conditions will be determined by the Remuneration Tribunal and allowances
will be set in the regulations [sections 96 and 97].
The Bill provides that the Performance Authority may not delegate any of
its functions with respect to Part 3.7 [paragraph 90(3)(c)]. Previously,
section 90 of the Bill empowers the Performance Authority to delegate by
writing any or all of its powers and functions (apart from those dealing
with legislative instruments or providing advice to the Minister) to a
Performance Authority member, the CEO, or an SES or acting SES employee.
As a consequence of government amendments set out under clauses (9) to (25)
to the Bill, the Performance Authority would otherwise have been empowered
under section 90 to delegate its powers to determine terms and conditions
in relation to the CEO's employment to the CEO. Paragraph 90(3)(c)
addresses this issue.
The Bill provides that the Performance Authority is to appoint the
Performance Authority CEO after consulting with the Minister [section 93].
The original Bill provided for the Minister to appoint the CEO after
consulting with the Performance Authority, as is common for Financial
Management and Accountability Act agencies. However, in view of the
constitution and role of the Performance Authority, with members nominated
by COAG and exercising functions across the Commonwealth, states and
territories, the Government believes it more appropriate for the CEO to be
appointed by the Performance Authority, after consultation with the
Minister.
The Bill (as a consequence of the amendments) empowers the Performance
Authority rather than the Minister to:
. appoint an acting CEO [section 94];
. provide approval for the CEO to engage in other paid
employment[section 95];
. grant leave to the CEO, other than recreation leave, and determine the
terms and conditions as to remuneration or otherwise, and other terms
and conditions not specified in the Act; [section 97]
. accept the CEO's resignation [section 99];
. after consulting with the Minister, terminate the CEO's appointment in
the event of misbehaviour, incapacity, bankruptcy, frequent absence
without leave, concealing a conflict of interest or engaging in
unapproved employment [section 100].
Subsection 100(1A) provides that the Performance Authority may terminate
the CEO's appointment if it is satisfied that his or her performance has
been unsatisfactory. This provision ensures consistency with subsection
45(2) of the National Health and Hospitals Network Act 2011.
Part 3.8 - Staff and Consultants
Performance Authority staff are to be engaged under the Public Service Act
1999, and the Performance Authority CEO and staff together constitute a
Statutory Agency under that Act [section 102].
The Performance Authority may also utilise the services of other
Commonwealth and State public servants or employees [section 103].
Similarly, consultants may also be engaged to assist the Performance
Authority [section 104]. The use of personnel engaged by the Performance
Authority, but not directly employed by the Performance Authority, will
enable it to meet different work cycles and scheduling demands, and is
likely to be particularly useful during the establishment phase.
Part 3.9 - Committees
The Performance Authority may establish committees to provide advice or
assistance to the Performance Authority in the performing its functions.
The committees may be made up wholly of Performance Authority members,
wholly of persons who are not members, or a combination of members and non-
members. The Performance Authority may determine terms of reference and
procedures for a committee [section 105] and may assist the subcommittee by
providing information and making available resources and facilities
[section 107].
Persons appointed to a committee are to receive remuneration as determined
by the Remuneration Tribunal, and allowances as prescribed in the
regulations. However, members are not entitled to remuneration if they are
employed full-time by a State government [section 106].
Part 3.10 - Reporting obligations of the Performance Authority
The Minister may require the Performance Authority to prepare reports and
documents on particular matters, and may publish these [section 108]. The
Performance Authority is also required to keep the Minister informed of its
work, and provide reports, documents and information regarding its
operations to the Minister as appropriate [section 109].
If the Performance Authority gives advice to the Minister about a
particular matter under paragraph 60(1)(g) the Authority must publish on
its website within twelve months a statement that advice about a matter was
provide to the Minister, and when it was provided [section 110]. This is
intended to provide transparency around the sorts of advice that are sought
and provided. It is not intended to require the Performance Authority to
publish the substance of the advice, as this may include confidential
material.
The Performance Authority is to prepare and provide to the Minister an
annual report for presentation to the Parliament [subsection 111(1)] The
Performance Authority is also required, as soon as practicable after 30
September next following the end of the financial year, to prepare and
give to the Minister for presentation to the Parliament, a report
consisting of a compilation of the reports prepared by the Performance
Authority under paragraph 60(1)(a) (matters relating to performance of
bodies providing health care services such as local hospital networks and
public hospitals) [subsection 111(2)]. The Minister is required to
present the report described in subsection 111(2) to the Parliament as soon
as practicable [subsection 111(3)].
Part 3.11 - Planning
The Performance Authority is required to prepare and provide to the
Minister a strategic plan covering the next three years at least once every
three years. The plan must set out the strategies and policies the
Performance Authority will follow to achieve its objectives, as well as any
other matters required by the Minister. The first plan must be prepared in
the first year of the Authority's operations.
The Performance Authority must keep the Minister informed of changes to the
plan, and any matters that might impact on achieving its objectives.
The Minister may give the Performance Authority guidelines on the matters
to be covered by the plan, and the matters that should be reported as
affecting achievement of the Authority's objectives. These guidelines are
not legislative instruments, as they are administrative in character
[section 112].
Subsection 112(3), will explicitly require the Performance Authority to
invite each state and territory health minister to provide comments on the
Performance Authority's draft strategic plan before it is finalised. The
purpose of this provision is to ensure that all jurisdictions will have an
opportunity to comment on the Performance Authority's proposed activities
and guide the formation of its objectives over the life of the plan.
States will have 30 days to provide any comments on the strategic plan, and
the Performance Authority will be required to have regard to any comments
received from State and Territory ministers.
Part 3.12 - Secrecy
A person that is or has been an official of the Performance Authority
(including members, the CEO, staff and consultants) and has obtained
information in the course of their work relating to another person
("protected information") commits an offence if they disclose or use the
information, unless the disclosure or use is authorised by Part 4.12 or is
compliant with another Commonwealth or a prescribed State law
[subsections 113(1) and (2)].
In addition, a person who is a member of a committee established by the
Commission under section 105 and who receives protected Commission
information under subsection 115(1) commits an offence if they disclose or
use the information, unless the disclosure or use is for the purposes of
the Act, including the performance of the functions of the committee, or is
in the course of the person's service on the committee [subsections 115(2)
and (3)].
The penalty for the offence (two years imprisonment or 120 penalty units or
both) is consistent with penalties for similar offences under 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.
An official of the Performance Authority 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 113(3)].
The exceptions from the offence set out in the Part include:
. disclosure or use for the purposes of the Act, for the performance of
the Authority's functions, or in the course of the official's
employment or service with the Authority [section 114];
. disclosure to a committee established by the Performance Authority
[section 115];
. disclosure to the Minister [section 116];
. disclosure to the Secretary or an APS employee of the Department
authorised to receive it [section 118];
. disclosure to a Royal Commission (in which case the Chair of the
Performance Authority can impose conditions on the use of the
information) [section 119];
. disclosure of information about the affairs of a person if the person
has consented [section 122];
. disclosure of information that is already lawfully publicly available
[section 123].
Section 116A provides that the Performance Authority may disclose protected
Performance Authority information to the Health Minister of a State or
Territory. The purpose of this provision is to ensure that the States and
Territories have access to protected information on the same basis as the
Commonwealth Health Minister. This provision does not oblige an official
of the Performance Authority to disclose protected Performance Authority
information to a State or Territory health minister. Accordingly, the
Performance Authority has discretion on whether to disclose protected
information.
Where the Performance Authority has been requested to provide protected
Performance Authority information by a State or Territory which relates to
information originating from a different jurisdiction, it is expected that
the Performance Authority will consult with the affected state or territory
before disclosing such information.
It is no longer envisaged that the Performance Authority will be required
to disclose protected information to the Treasurer.
The conditions that may be imposed under section 119 are not a legislative
instrument as they are limited to the particular case, and are not a
general statement of the law.
There are two other exceptions. If the Chair of the Performance Authority
is satisfied that particular protected information will assist one of a
number of agencies, bodies or individuals to perform or exercise their
powers or functions an authorised officer may disclose that information.
However, the recipient of the protected information must not use it for a
purpose other than that for which it was given [section 120].
Similarly, if the Chair of the Performance Authority is satisfied that
particular protected information will assist an agency, body or person to
conduct research an authorised officer may disclose that information,
providing that the information is not likely to enable the identification
of a particular patient [section 121].
The Chair of the Performance Authority may delegate any function or powers
under this Part to the Performance Authority CEO, who must comply with any
directions from the Chair in exercising the delegation [section 124].
Part 3.13 - Other matters
The Minister may by legislative instrument give general directions to the
Performance Authority in relation to the performance of its functions and
the exercise of its powers [section 125]. The Government intends to use
this power to ensure that the Performance Authority carries out the any
detailed tasks specified in the National Health Reform Agreement once it is
concluded.
To the extent to which reports prepared or published by the Performance
Authority under the Act contain personal information, the disclosure or use
of this personal information is taken to be authorised by law for the
purposes of the Privacy Act 1988 [section 127]. However, section 128 in
Chapter 4 (see below) prevents the Performance Authority from publishing
information that is likely to enable the identification of a particular
patient without consent.
ADDITION OF CHAPTER 4 - MISCELLANEOUS
This Chapter includes a provision relating to privacy and confidentiality,
a statement of the relation between this Act and State laws, and a
regulation making power.
The Commission or the Performance Authority must not publish or disseminate
information likely to lead to the identification of a particular patient
without consent. Consent may be given by
. the patient, if the patient is aged 18 or more; or
. the patient's surviving partner, if the patient is dead; or
. a person authorised under the regulations to give consent [section
128].
The Act is intended to operate concurrently with State law to the extent
possible [section 129].
Regulations can be made prescribing matters required or permitted to be
prescribed under the Act, or necessary or convenient to give effect to the
Act [section 130].
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