See also: [Non-government Bill: Mr David Shoebridge, MLC] Human Tissue Amendment (Trafficking in Human Organs) Bill 2016 Miscellaneous Acts Amendment (Marriages) Bill 2018
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: blood product means a product or extract derived or extracted from blood by any process of manufacture.child means a person who has not attained the age of 18 years and who is not married.designated officer means:
(a) in relation to a hospital, a person appointed for the time being under section 5 (1) (a) to be a designated officer for the hospital, or (b) in relation to a forensic institution, a person appointed for the time being under section 5 (3) to be a designated officer for the forensic institution. designated specialist , in relation to a hospital, means a person appointed for the time being under section 5 (1) (b) to be a designated specialist for the hospital.donor , in relation to blood, means the person from whom the blood has been removed.exempt supplier :
(a) in relation to the supply of blood or a blood product, means:
(i) the Australian Red Cross Society, or (ii) the governing body of a hospital, or (iii) any other body declared by the regulations to be an exempt supplier for the purposes of this Act, or (a1) in relation to the supply of blood products that are therapeutic goods within the meaning of the of the Commonwealth and that are registered goods within the meaning of that Act—a body that supplies those goods, or Therapeutic Goods Act 1989 (a2) in relation to the supply of blood products that are therapeutic goods within the meaning of the of the Commonwealth and that are exempt goods for the purposes of Part 3–2 of that Act—a body that supplies those goods in compliance with the conditions (if any) of the relevant exemption. Therapeutic Goods Act 1989 (b) exercise a function includes perform a duty.forensic institution means:
(a) an institution that is under the control of a public health organisation (within the meaning of the ), or Health Services Act 1997 (b) an accredited pathology laboratory under the of the Commonwealth, or Health Insurance Act 1973 (c) an institution that is under the control of the Health Administration Corporation, at which post-mortem examinations of human bodies are carried out, but does not include a hospital. function includes a power, authority or duty.governing body means:
(a) in relation to a hospital:
(i) in the case of a public hospital that is controlled by a public health organisation within the meaning of the —the public health organisation, or Health Services Act 1997 (ii) in the case of a public hospital within the meaning of the that is controlled by the Crown (including the Minister or the Health Administration Corporation)—the Crown, or Health Services Act 1997 (iii) in the case of a private health facility within the meaning of the —the licensee of the facility, or Private Health Facilities Act 2007 (b) in relation to a forensic institution:
(i) in the case of a forensic institution that is controlled by a public health organisation within the meaning of the —the public health organisation, or Health Services Act 1997 (ii) in the case of an accredited pathology laboratory under the of the Commonwealth—the person in charge of the laboratory (however designated), or Health Insurance Act 1973 (iii) in the case of a forensic institution that is controlled by the Health Administration Corporation—the Health Secretary. Health Secretary means the Secretary of the Ministry of Health.hospital means:
(a) a public hospital within the meaning of the , or Health Services Act 1997 (b) a private health facility within the meaning of the . Private Health Facilities Act 2007 inspector means a person appointed as an inspector under Part 7A.medical, dental or surgical treatment means any medical, dental or surgical treatment carried out by, or under the supervision of, a medical practitioner or dentist with respect to a living person in the interests of the health of the person.next of kin means:
(aa) in relation to a child who is living—a person referred to in paragraph (aa) of the definition of senior available next of kin , and(a) in relation to a deceased child—a person referred to in paragraph (a) of the definition of senior available next of kin , and(b) in relation to any other deceased person—a person referred to in paragraph (b) of that definition. non-regenerative tissue means tissue other than regenerative tissue.premises includes any means of vehicular transport.prescribed contaminant means an organism or substance declared by the regulations to be a prescribed contaminant for the purposes of this Act.record includes book, account, deed, writing, document and any other source of information compiled, recorded or stored in written form, or on micro-film, or by electronic process, or in any other manner or by any other means.regenerative tissue means tissue that, after injury or removal, is replaced in the body of a living person by natural processes of growth or repair.regulation means a regulation made under this Act.senior available next of kin means:
(aa) in relation to a child who is living:
(i) a parent of the child, or (ii) if no person referred to in subparagraph (i) is available—a person who is a guardian of the child, and (a) in relation to a deceased child:
(i) a parent of the child, (ii) where a parent of the child is not available—a brother or sister of the child, being a brother or sister who has attained the age of 18 years, or (iii) where no person referred to in subparagraph (i) or (ii) is available—a person who was a guardian of the child immediately before the death of the child, and (b) in relation to any other deceased person:
(i) a person who was a spouse of the deceased person immediately before the deceased person’s death, (ii) where the deceased person, immediately before death, had no spouse or where the deceased person had a spouse but the person who was then the deceased person’s spouse is not available—a son or daughter (if any) of the deceased person, being a son or daughter who has attained the age of 18 years, (iii) where no person referred to in subparagraph (i) or (ii) is available—a parent of the deceased person, or (iv) where no person referred to in subparagraph (i), (ii) or (iii) is available—a brother or sister of the deceased person, being a brother or sister who has attained the age of 18 years. spouse means:
(a) a husband or wife, or (b) a de facto partner, but where more than one person would so qualify as a spouse, means only the last person so to qualify. Note— “De facto partner” is defined in section 21C of the . Interpretation Act 1987 supply means supply by way of sale, exchange or gift, and includes receive, keep or store for the purpose of supply.tissue includes an organ, or part, of a human body and a substance extracted from, or from a part of, the human body.Note— The contains definitions and other provisions that affect the interpretation and application of this Act. Interpretation Act 1987 (2) In this Act:
(a) a reference to a parent of a person includes a reference to the following:
(i) a step-parent of the person, (ii) an adoptive parent of the person, (iii) the Minister administering the , if the Minister has sole parental responsibility in respect of the person (whether under that Act or otherwise), Children and Young Persons (Care and Protection) Act 1998 (b) a reference to a son or daughter of a person includes a reference to any person of whom the person is a parent, (c) a reference to a brother or sister of a person includes a reference to any person who is a son or daughter of a parent of the person, and (d) (2A) In this Act, except in so far as the context or subject-matter otherwise indicates or requires, a reference to tissue includes a reference to:
(aa) blood, (a) ova and semen, and (b) foetal tissue.
(1) A reference in this section, in relation to a consent given in accordance with a provision of this Act, to the donor:
(a) in a case in which the consent is given in respect of a child—is a reference to the child, and (b) in any other case—is a reference to the person who gave the consent. (2) Where a medical practitioner has given a certificate in accordance with section 9, 11 or 11A and the person by whom the consent the subject of the certificate was given indicates:
(a) if the donor is a patient in a hospital:
(i) to a designated officer for the hospital, (ii) to a medical practitioner who is attending the donor in a professional capacity, or (iii) to a nurse employed at the hospital, or (b) if the donor is not a patient in a hospital—to a medical practitioner who is attending the donor in a professional capacity, that the consent is revoked, subsections (3), (4) and (5) have effect.
(1) Where a medical practitioner has given a certificate in accordance with section 11 and the child in relation to whom the certificate has been given indicates:
(a) if the child is a patient in a hospital:
(i) to a designated officer for the hospital, (ii) to a medical practitioner who is attending the child in a professional capacity, or (iii) to a nurse employed at the hospital, or (b) if the child is not a patient in a hospital—to a medical practitioner who is attending the child in a professional capacity, that the child is no longer in agreement with the proposed removal and transplantation of tissue, subsections (2), (3) and (4) have effect.
(1) In this section: certificate means a certificate relating to the medical suitability of the donor, being a certificate in a form prescribed by the regulations.
(1) If:
(a) a person has become infected with a prescribed contaminant, or a disease that is attributable to a prescribed contaminant, and (b) the contaminant was or may have been transmitted to that person as a result of a transfusion of blood or a blood product or of any other treatment involving the use of blood or a blood product, the provisions of subsection (3), (4) or (5) apply according to the circumstances of the case. (2) The regulations may make provision for or with respect to prescribing defences (in addition to those provided for in subsections (4) and (5)) as defences to proceedings of the kind referred to in subsections (4) and (5).
(1) A person, other than an exempt supplier, must not carry on a business of supplying homologous blood or blood products. Maximum penalty: 100 penalty units.
(1) If a corporation contravenes, whether by act or omission, any provision of this Part or a regulation made for the purposes of this Part, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.
(1) If, on the application of the Health Secretary, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute one or more of the following:
(a) a contravention of section 21, (b) attempting to contravene section 21, (c) aiding, abetting, counselling or procuring a person to contravene section 21, (d) inducing, or attempting to induce, whether by threats or promises or otherwise, a person to contravene section 21, (e) being, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of section 21, (f) conspiring with others to contravene section 21, the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) If an application is made to the Supreme Court for an injunction under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in subsection (1) pending the determination of the application.
(1) If a designated officer for a hospital is satisfied, after making such inquiries as are reasonable in the circumstances in relation to a person who has died in the hospital or whose dead body has been brought into the hospital, that:
(a) the person had, during the person’s lifetime, given his or her consent in writing to the removal after that person’s death of tissue from that person’s body for the purpose of:
(i) its transplantation to the body of a living person, or (ii) its use for other therapeutic purposes or for medical purposes or scientific purposes, and (b) the consent had not been revoked, the designated officer may, by instrument in writing, authorise the removal of tissue from that person’s body in accordance with the terms and any conditions of the consent.
(1) If the body of a deceased person (other than a deceased child) is at a place other than a hospital, the removal of tissue from the body of the deceased person for the purpose of its transplantation to the body of a living person, or its use for other therapeutic purposes or for medical purposes or scientific purposes, is authorised if:
(a) the deceased person had, during the person’s lifetime, given his or her consent in writing to the removal of tissue from the person’s body for that purpose, and (b) the consent had not been revoked.
(1) A principal care officer must not give consent under section 23A or grant an authority under section 24A if:
(a) it appears to the officer, after making such inquiries as are reasonable in the circumstances, that the deceased child had, during the child’s lifetime, expressed an objection to the removal of tissue from the child’s body and had not withdrawn that objection, or (b) the officer has not undertaken the consultation and obtained the approvals required by the following subsections.
(1) This section applies to a person in respect of whose death a coroner has jurisdiction to hold an inquest under the . Coroners Act 2009 (2) A designated officer for a hospital, a senior available next of kin or a principal care officer shall not authorise the removal of tissue from the body of a person to whom this section applies unless a coroner has given consent to the removal of the tissue. Maximum penalty: 40 penalty units or imprisonment for 6 months, or both.
(1) Where:
(a) a person has died in a hospital or the body of a deceased person has been brought into a hospital, and (b) at the time when the person died or at any time thereafter the person’s respiration or the circulation of the person’s blood was being maintained by artificial means, a designated officer for the hospital shall not give an authority under this Part in respect of the person unless each of 2 medical practitioners (not including the designated officer) has certified in writing:
(c) that the medical practitioner carried out a clinical examination of the person while the person’s respiration or the circulation of the person’s blood was being maintained by artificial means, and (d) that, at the time of that examination, irreversible cessation of all function of the person’s brain had, in the opinion of the medical practitioner, already occurred. Maximum penalty: 40 penalty units or imprisonment for 6 months, or both.
(1) An authority under this Part is sufficient authority for a medical practitioner other than:
(a) a medical practitioner referred to in section 26 (1), or (b) where the authority was given by a medical practitioner, the medical practitioner by whom the authority was given, to remove tissue from the body of the deceased person referred to in the authority for the purpose or purposes specified in the authority.
(1) If the body of a deceased person (other than a deceased child) is at a place other than a hospital, the post-mortem examination of that person’s body is authorised if:
(a) the deceased person had, during the person’s lifetime, given his or her consent in writing to the post-mortem examination of the person’s body after the person’s death, and (b) the consent had not been revoked.
(1) This section applies to a person in respect of whose death a coroner has jurisdiction to hold an inquest under the . Coroners Act 2009 (2) A designated officer for a hospital or a senior available next of kin shall not authorise the post-mortem examination of the body of a person to whom this section applies unless a coroner has given consent to the examination. Maximum penalty: 40 penalty units or imprisonment for 6 months, or both.
(1) If a coroner has jurisdiction to hold an inquest under the in respect of the death of a person, a designated officer for a hospital or forensic institution must not authorise the use of any tissue removed from the person’s body under section 31A unless a coroner has given consent to the use of the tissue. Coroners Act 2009 Maximum penalty: 40 penalty units or imprisonment for 6 months, or both.
(1) A person must not enter into, or offer to enter into, a contract or arrangement under which any person agrees, for valuable consideration, whether given or to be given to any such person or to any other person:
(a) to the sale or supply of tissue from any such person’s body or from the body of any other person, whether before or after that person’s death or the death of that other person, as the case may be, or (b) to the post-mortem examination of any such person’s body after that person’s death or of the body of any other person after the death of that other person. Maximum penalty: 40 penalty units or imprisonment for 6 months, or both.
(1) An inspector may at any reasonable time enter and inspect any premises for the purpose of ascertaining whether or not a provision of this Act, or any regulation made under this Act, is being or has been complied with or contravened. (2) While on premises entered under this section or under the authority of a search warrant under section 33G, an inspector may do one or more of the following:
(a) inspect:
(i) all tissue and blood products kept on those premises, or anything the inspector reasonably believes to be tissue or blood products, and (ii) all containers that the inspector reasonably believes to contain or to have contained tissue or blood products, and (iii) all equipment kept on the premises that the inspector reasonably believes to be or to have been used for processing, packing or storing tissue or blood products, (b) take and remove for analysis or testing a sample of any tissue or blood product kept on the premises, or anything the inspector reasonably believes to be tissue or blood products, (c) inspect any records kept on those premises and require any person whom the inspector reasonably believes to have custody or control of those records to produce them for inspection, (d) require any person on those premises to answer questions or otherwise furnish information in relation to a contravention of a provision of this Act or the regulations, (e) make and take away copies of the whole or any part of any records or other information, (f) take away and retain, for such period as may be reasonably necessary, any records or other information, or any part of them, in order to make copies of them, (g) take away and retain any records or other information, if the inspector concerned reasonably believes that the records or information are evidence of an offence against this Act or a regulation made under this Act, until proceedings for the offence have been disposed of, (h) seize and detain:
(i) any tissue or blood product, or anything the inspector reasonably believes to be tissue or a blood product, in relation to which the inspector reasonably believes an offence against this Act or against a regulation under this Act is being or has been committed, and (ii) any container in which any such tissue or blood product, or other thing, is kept, and (iii) any equipment which the inspector reasonably believes is being or has been used in connection with any such offence, (i) place anything seized as referred to in paragraph (h) in a container, or in a room, compartment or cabinet located on the premises where they were seized, and mark, fasten and seal that container or, as the case may be, the door or opening providing access to that room, compartment or cabinet, (j) take such photographs, films, audio, video and other recordings as the inspector considers necessary.
(1) An inspector may, by notice in writing given to a person, require the person to furnish to the inspector such information or records (or both) as the inspector requires by the notice, being information that relates to the question of whether or not a provision of this Act, or any regulation made under this Act, is being or has been complied with or contravened.
(1) An inspector may apply to an authorised officer for a search warrant for premises if the inspector believes on reasonable grounds:
(a) that a provision of this Act or the regulations is being or has been contravened on the premises, or (b) that there is on the premises evidence of a contravention of a provision of this Act or the regulations.
(1) A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person by an inspector under this Act is guilty of an offence. (2) A person who furnishes any information or does any other thing in purported compliance with a requirement made by an inspector under this Act, knowing that it is false or misleading in a material respect, is guilty of an offence.
(1) Any person claiming to be entitled to any seized item may, within 10 days after the date on which the seizure took place, make an application to the District Court for an order disallowing the seizure. (2) An application made under subsection (1) must not be heard unless the applicant has previously served a copy of the application on the Health Secretary. (3) The Health Secretary is entitled to appear as respondent at the hearing of an application made under subsection (1). (4) The District Court must, on the hearing of an application made under subsection (1), make an order disallowing the seizure:
(a) if it is proved by or on behalf of the applicant that the applicant would, but for the seizure, be entitled to the seized item and if it is not proved by or on behalf of the respondent beyond all reasonable doubt that an offence was being or had been at the time of the seizure, committed in relation to the seized item, or (b) if, in the opinion of the Court, there are exceptional circumstances justifying the making of an order disallowing the seizure.
(1) If:
(a) no application for disallowance of the seizure of a seized item has been made within the period allowed by section 33I (1), or (b) any such application has been made within that period and the application has been refused or withdrawn before a decision in respect of the application has been made, the seized item is forfeited to the Crown and may be destroyed or disposed of in such manner as the Health Secretary directs. (2) Subsection (1) does not apply in respect of any seized item that has been disposed of or destroyed as referred to in subsection (3) or (7). (3) If the Health Secretary is satisfied that there has been no failure to comply with or contravention of this Act or the regulations in relation to any seized item, the Health Secretary must immediately cause the seized item to be delivered to such person as appears to the Health Secretary to be entitled to it.
(1) A person must not:
(a) authorise the removal of tissue from the body of a deceased child for any purpose (other than for the purpose of its transplantation to the body of a living person) if the child was, immediately before his or her death, in the care of the State, or (b) authorise the post-mortem examination of the body of a deceased child if the child was, immediately before his or her death, in the care of the State, or (c) authorise the use of tissue removed during the post-mortem examination of the body of a deceased child for any purpose (other than the purposes of the post-mortem examination) if the child was, immediately before his or her death, in the care of the State. Maximum penalty: 40 penalty units or imprisonment for 6 months, or both.
(1) A person shall not remove tissue from the body of any other person (whether living or deceased) except in accordance with a consent or authority that is, under this Act, sufficient authority for the removal of the tissue by the firstmentioned person. Maximum penalty: 40 penalty units or imprisonment for 6 months, or both. (1A) A person must not use any tissue that is removed from the body of a living person in the course of medical, dental or surgical treatment carried out in the interests of the health of the person for any purpose (other than for the purposes of treating the person) except in accordance with an authority that is, under this Act, sufficient authority for the firstmentioned person to use the tissue for that purpose. Maximum penalty: 40 penalty units or imprisonment for 6 months, or both.
(1) This section applies:
(a) where a consent has been given pursuant to this Act—to a medical practitioner who has given a certificate in relation to the consent, (b) where an authority has been given pursuant to this Act by a designated officer for a hospital—to the designated officer, (c) where tissue other than blood has been removed from the body of a person (whether living or deceased)—to the medical practitioner who removed the tissue and, if the tissue was removed at a hospital, to each person who was employed at the hospital when the tissue was removed or who has since been employed at the hospital, (ca) where blood has been removed from the body of a person (whether living or deceased):
(i) by a medical practitioner, (ii) by an employee or member of the Australian Red Cross Society or of a body prescribed for the purpose of this subparagraph, or (iii) by any other person of a class prescribed for the purpose of this subparagraph, to:
(iv) the medical practitioner, any person who was the employer or partner of that practitioner when the blood was removed and any person who was an employee of that practitioner when the blood was removed or who has since been employed by that practitioner, (v) the Australian Red Cross Society or body so prescribed and any person who was an employee or member of that Society or body when the blood was removed or who has since been employed by that society or body, or (vi) that other person, any person who was the employer or partner of that other person when the blood was removed and any person who was an employee of that other person when the blood was removed or has since been employed by that other person, (cb) where blood has been removed from the body of a person (whether living or deceased) at a hospital or at premises prescribed, or at premises of a class prescribed, for the purposes of this paragraph—to any person who was employed at the hospital or premises when the blood was removed or who has since been employed at the hospital or premises, (d) where tissue has been transplanted into the body of a person—to the medical practitioner who performed the transplantation and, if the tissue was transplanted at a hospital, to each person who was employed at the hospital when the transplantation was performed or who has since been employed at the hospital, and (e) where it is proposed that tissue be transplanted into the body of a person—to a medical practitioner who proposes to perform the transplantation and, if the tissue is to be transplanted at a hospital, to each person who is employed at the hospital or who is subsequently employed at the hospital.
(1) In this section: approved health provider means:
(a) (b) a private health facility licensed under the , or Private Health Facilities Act 2007 (c) an accredited pathology laboratory under the of the Commonwealth (other than any such laboratory that is under the control of a public health organisation within the meaning of the Health Insurance Act 1973 ), or Health Services Act 1997 (d) any health provider of a class prescribed by the regulations. blood product does not include a product that is declared by the regulations not to be a blood product for the purposes of this section.blood supplier means:
(a) the Australian Red Cross Society, or (b) any other person or body prescribed by the regulations. (2) The object of this section is to encourage approved health providers that use blood or blood products supplied by blood suppliers:
(a) to make the best use of available resources of blood and blood products, and (b) to adopt an appropriate level of financial and performance accountability in relation to the use of those resources, by enabling the Health Secretary to recover the costs incurred by the State in connection with the supply of blood and blood products to those health providers. (3) If an approved health provider is supplied with any blood or blood products by a blood supplier, the health provider is required to pay the Health Secretary the costs incurred by the State in connection with the supply of the blood or blood products.
(1) The Governor may make regulations not inconsistent with this Act for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(Section 40)