An Act to regulate the public health system of New South Wales; to repeal the Area Health Services Act 1986 and the Public Hospitals Act 1929; to amend various other Acts; and for other purposes.
Chapter 1 Preliminary
Introduction—
This Chapter contains provisions that are helpful in understanding the Act as a whole. It also contains some machinery provisions.
1 Name of Act
This Act is the Health Services Act 1997.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of the Act have the meanings set out in the Dictionary.Note—Expressions used in this Act (or a particular provision of this Act) that are defined in the Interpretation Act 1987 have the meanings set out in that Act.
4 Objects of Act
The objects of this Act are—(a) to establish a system of local health districts for the whole of the State to deliver health services and to enable their recognition as health networks for the purposes of the National Health Reform Agreement, and(b) to constitute statutory health corporations to deliver health services and health support services other than on the basis of a specified area, and(c) to recognise as affiliated health organisations certain non-government institutions and organisations that provide health services and health support services within the State that contribute significantly to the public health system, and(c1) to enable the recognition of some statutory health corporations and affiliated health organisations as health networks for the purposes of the National Health Reform Agreement, and(d) to re-affirm the adoption of the Medicare Principles and Commitments as guidelines for the delivery of public hospital services (within the meaning of section 23E of the Health Insurance Act 1973 of the Commonwealth) and to facilitate the collection of fees from patients of public health organisations in respect of services received by them that are not required to be provided free of charge under the Medicare Agreement, and(e) to regulate the conditions of contracts of visiting medical officers appointed by public health organisations, and(f) to facilitate transfers of staff within the public health system and to avoid unnecessary staff redundancies, and(g) to require visiting practitioners and staff in the public health system to disclose any charge or conviction for a serious sex or violence offence or of a misconduct finding (such as findings of professional misconduct or unsatisfactory professional conduct), and(h) to specify the action that may be taken in relation to convictions for serious sex or violence offences committed by visiting practitioners or staff in the public health system, and(i) to make provision for the funding of public health organisations, and(j) to facilitate the efficient and effective administration of the public health system generally by providing mechanisms for such matters as inquiries, inspections and transfers of resources.s 4: Am 2006 No 2, Sch 2 [1] [2]; 2010 No 97, Sch 1.1 [1] [2]; 2011 No 4, Sch 1.2 [2]; 2012 No 36, Sch 1 [1].
5 Notes
Introductions to Chapters and other notes included in this Act are explanatory notes and do not form part of this Act.s 5: Am 2004 No 92, Sch 2 [2]; 2015 No 58, Sch 3.41 [1].
Chapter 2 Structure of the public health system
ch 2, introduction: Rep 2006 No 2, Sch 2 [3].
6 What is the public health system?
For the purposes of this Act, the public health system consists of—(a) all the local health districts, and(b) all the statutory health corporations, and(c) all the affiliated health organisations in respect of their recognised establishments and recognised services, and(d) the Health Secretary in respect of the provision of ambulance services under Chapter 5A and the provision of services under Part 1A of Chapter 10.s 6: Am 2004 No 87, Sch 2 [1]; 2006 No 2, Sch 2 [4]; 2010 No 97, Sch 1.1 [3].
7 What is a public health organisation?
A public health organisation is—(a) a local health district, or(b) a statutory health corporation, or(c) an affiliated health organisation in respect of its recognised establishments and recognised services.
8 What is a local health district?
(1) A local health district is a local health district constituted under section 17 and specified from time to time in Schedule 1.(2) The principal reason for constituting local health districts is to facilitate the conduct of public hospitals and health institutions and the provision of health services for residents of the areas of the State in respect of which the districts are constituted.s 8: Am 2010 No 97, Sch 1.1 [4], 1.2 [2].
9 Primary purposes of local health districts
(cf AHS Act s 19)
The primary purposes of a local health district in its area are as follows—(a) to provide relief to sick and injured persons through the provision of care and treatment,(b) to promote, protect and maintain the health of the community.
10 Functions of local health districts
(cf AHS Act ss 19 and 20)
The functions of a local health district are as follows—(a) generally to promote, protect and maintain the health of the residents of its area,(b) to conduct and manage public hospitals, health institutions, health services and health support services under its control,(c) to give residents outside its area access to such of the health services it provides as may be necessary or desirable,(d) to achieve and maintain adequate standards of patient care and services,(e) to ensure the efficient and economic operation of its health services and health support services and use of its resources,(f) generally to consult and co-operate (as it considers appropriate) with any one or more of the following—(i) the Health Care Complaints Commission constituted under the Health Care Complaints Act 1993,(ii) health professionals practising in its area,(iii) other individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the promotion, protection and maintenance of health,(f1) to co-operate with other local health districts and the Health Secretary in relation to the provision of services involving more than one public health organisation or on a State-wide basis,(g) to investigate and assess health needs in its area,(h) to plan future development of health services in its area, and, towards that end—(i) to consult and plan jointly with the Ministry of Health and such other organisations as it considers appropriate, and(ii) to support, encourage and facilitate the organisation of community involvement in the planning of those services, and(iii) to develop strategies to facilitate community involvement in the planning of those services and to report on the implementation of those strategies in annual reports and to the Minister,(i) to establish and maintain an appropriate balance in the provision and use of resources for health protection, health promotion, health education and treatment services,(j) to provide services to persons with whom it has contracted or entered into an agreement under section 37 (2),(k) to administer funding for recognised establishments and recognised services of affiliated health organisations where that function has been delegated to it by the Minister under section 129,(l) to provide training and education relevant to the provision of health services,(m) to undertake research and development relevant to the provision of health services,(n) to make available to the public information and advice concerning public health and the health services available within its area,(o) to carry out such other functions as are conferred or imposed on it by or under this or any other Act or as may be prescribed by the regulations.s 10: Am 2001 No 56, Sch 2.21; 2010 No 97, Sch 1.1 [5]; 2015 No 58, Sch 3.41 [2].
11 What is a statutory health corporation?
(1) A statutory health corporation is a statutory health corporation constituted under section 41 and specified from time to time in Schedule 2.(2) The principal reason for constituting statutory health corporations is to enable certain health services and health support services to be provided within the State other than on an area basis.Note—Statutory health corporations are intended to replace the system of incorporated hospitals and corporatised boards of directors of associated organisations established under Part 4 and Division 2 of Part 5A of the Public Hospitals Act 1929 respectively.
12 Functions of statutory health corporations
(cf PH Act ss 27A and 29I)
A statutory health corporation has the following functions—(a) to conduct public hospitals or health institutions or to provide health services or health support services (or any combination of these),(b) to conduct such public hospitals and health institutions and provide such health services or health support services as the Minister determines from time to time under section 53,(c) to achieve and maintain an adequate standard in the conduct of any public hospital or health institution, or the provision of a health service or health support service, under its control,(d) to ensure the efficient and economic operation of any such public hospital, health institution, health service or health support service,(e) to carry out such other functions as are conferred or imposed on it by or under this or any other Act or as may be prescribed by the regulations.
13 What is an affiliated health organisation?
(1) An affiliated health organisation is an organisation or institution that is an affiliated health organisation under section 62.(2) An organisation or institution is an affiliated health organisation only in relation to any of its recognised establishments or recognised services.Note—The Dictionary defines a recognised establishment of an affiliated health organisation to mean a hospital or health institution of the organisation that is listed in column 2 of Schedule 3 next to its name. It also defines a recognised service of an affiliated health organisation to mean a health service or health support service of the organisation that is listed in column 2 of Schedule 3 next to its name.(3) The principal reason for recognising affiliated health organisations is to enable certain non-profit, religious, charitable or other non-government organisations and institutions to be treated as part of the public health system where they control hospitals, health institutions, health services or health support services that significantly contribute to the operation of that system.Note—Affiliated health organisations are intended to replace the system of separate institutions and associated organisations recognised under Part 5AA and section 29B (1) (a) of the Public Hospitals Act 1929, respectively.
14 Functions of affiliated health organisations
(cf PH Act s 29AD)
The functions of an affiliated health organisation are as follows—(a) to achieve and maintain an adequate standard in the conduct of its recognised establishments and the provision of its recognised services,(b) to ensure the efficient and economic operation of those establishments and services,(c) to carry out such other functions as are conferred or imposed on it by or under this or any other Act or as may be prescribed by the regulations.
15 What is a public hospital?
A public hospital is—(a) a hospital controlled by a local health district, or(b) a hospital controlled by a statutory health corporation, or(c) a hospital that is a recognised establishment of an affiliated health organisation, or(d) a hospital controlled by the Crown (including the Minister or the Health Administration Corporation).Note—Clause 2 of Part 2 of the Dictionary provides that a reference in this Act to a hospital controlled by a public health organisation or any other body or person includes a reference to a hospital that is conducted by or on behalf of such an organisation, body or person.
16 (Repealed)
s 16: Am 2004 No 87, Sch 2 [2]; 2004 No 92, Sch 1 [1]. Rep 2006 No 2, Sch 2 [5].
Chapter 3 Local health districts
ch 3, introduction: Am 2004 No 92, Sch 2 [4] [5]. Rep 2006 No 2, Sch 2 [3].
Part 1 Constitution of local health districts
17 Constitution of local health districts
(1) There are constituted by this section such local health districts as are specified from time to time in column 1 of Schedule 1.(2) A local health district is a body corporate with the corporate name specified in column 1 of Schedule 1.s 17: Subst 2011 No 4, Sch 1.1 [1].
18 Areas in respect of which local health districts constituted
(cf AHS Act ss 4 and 7)
(1) The area in respect of which a local health district is constituted is—(a) if the area comprises a local government area (or part of a local government area) or a local government area constituted as a city (or a part of such a city)—the local government area (or part of a local government area) or city (or part of a city) described in column 2 of Schedule 1 in relation to the local health district, or(b) if the area comprises an area other than a local government area (or part of a local government area)—the area described in any manner (including by reference to a description contained in another document) in column 3 of Schedule 1 in relation to the local health district.(2) A reference in column 2 of Schedule 1 to a part of a local government area is a reference to such part of the local government area as is described by the regulations for the purposes of that reference.(3) A reference in column 3 of Schedule 1 to the unincorporated area is a reference to such part of the land within the Western Division of the State as is not within a local government area.
19 Amendment of Schedule 1 (Names and areas of local health districts)
(cf AHS Act ss 6 and 8)
(1) The Governor may, by order published on the NSW legislation website—(a) amend column 1 of Schedule 1 by inserting, altering or omitting the name of a local health district, or(b) amend column 2 or 3 (or both) of Schedule 1 by inserting, altering or omitting a description of the area in respect of which a local health district is (or was) constituted, or(c) omit Schedule 1 and insert instead a Schedule containing the names of local health districts and descriptions of the areas in respect of which the local health districts are constituted.(2) If an area in respect of which a local health district is constituted—(a) is described by reference to a local government area that is constituted as a city, anda reference in column 2 of Schedule 1 to the old name of the city is taken to include a reference to the new name of the city.(b) the name of the city (but not the boundaries) is changed,(3) The boundaries of the area in respect of which a local health district that is described by reference to any local government area or part of any local government area are unaffected by a change in the boundaries of the local government area and, for that purpose, the boundaries of the local government area are taken to remain the same as they were when reference to the local government area was included in column 2 of Schedule 1.s 19: Am 2009 No 56, Sch 4.27.
20 Dissolution, amalgamation or change of name of local health districts
(cf AHS Act s 9)
(1) The Governor may, by order published on the NSW legislation website—(a) dissolve a local health district, or(b) amalgamate 2 or more local health districts, orand may, in the order, amend Schedule 1 accordingly.(c) change the name of a local health district,(2) An order under this section must specify the date (being a date that is on or after the date it is published on the NSW legislation website) on which it takes effect. However, if no date is specified in the order, the order is taken to have specified the date on which it is published on the NSW legislation website as the date on which it takes effect.(3) An order is not to be made under this section unless the Minister is of the opinion that the order is in the public interest and has recommended to the Governor that the order be made.(4) A dissolution, amalgamation or change of name under this section may be effected without holding an inquiry.Note—Part 3 of Chapter 10 provides for the transfer by order of the Governor of public hospitals, health institutions, health services, health support services and property between local health districts and statutory health corporations.Section 116 provides for the transfer of staff between public health organisations.s 20: Am 2009 No 56, Sch 4.27.
21 Consequential and transitional provisions on the making of orders
(cf AHS Act s 10)
(1) Schedule 4 has effect with respect to orders made under this Part.(2) An order under this Part may contain provisions, not inconsistent with the provisions of or made under Schedule 4, of a savings and transitional nature consequent on the making of the order.
22 Provisions relating to the corporate nature of local health districts
(cf AHS Act s 11)
(1) A local health district—(a) has perpetual succession, and(b) is to have an official seal, and(c) may take proceedings, and be proceeded against, in its corporate name, and(d) may do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for or incidental to the purposes for which the local health district is constituted, and(e) does not represent the Crown.Note—Section 150 (1) of the Evidence Act 1995 provides for judicial notice to be taken in relation to a seal of any body established under an Act.(2) However, a local health district cannot employ any staff.Note—Staff may be employed under Part 1 of Chapter 9 in the NSW Health Service to enable a local health district to exercise its functions.s 22: Am 2006 No 2, Sch 2 [6].
Part 2 Control and management of local health districts
ch 3, pt 2: Subst 2004 No 92, Sch 1 [2].
Division 1 The chief executive
ch 3, pt 2, div 1, hdg: Ins 2004 No 92, Sch 1 [2].
23 Appointment of chief executive
(1) A chief executive is to be appointed for each local health district by the local health district board with the concurrence of the Health Secretary.(2) Any such chief executive is employed in the NSW Health Service and is a NSW Health Service senior executive.s 23: Subst 2004 No 92, Sch 1 [2]. Am 2006 No 2, Sch 2 [7] [8]. Subst 2016 No 2, Sch 2 [1].
24 Chief executive to manage and control affairs of local health district
(1) The affairs of a local health district are to be managed and controlled by the chief executive of the district.(2) Any act, matter or thing done in the name of, or on behalf of, a local health district by its chief executive is taken to have been done by the district.s 24: Subst 2004 No 92, Sch 1 [2]. Am 2010 No 97, Sch 1.2 [3].
25 Functions of chief executive generally
The chief executive of a local health district—(a) has, and may exercise, such functions as are conferred or imposed on the chief executive by or under this or any other Act, and(b) is, in the exercise of his or her functions, accountable to the local health district board constituted for the district.s 25: Subst 2004 No 92, Sch 1 [2]. Am 2010 No 97, Sch 1.1 [6].
Division 2 Local health district boards
ch 3, pt 2, div 2, hdg: Ins 2004 No 92, Sch 1 [2].
26 Constitution of local health district boards
(1) A local health district board is to be established for each local health district.(2) A local health district board is to consist of 6 to 13 persons appointed by the Minister, selected in accordance with subsections (3) and (4).(3) The Minister is to select the membership of a local health district board so that the membership of the board has an appropriate mix of skills and expertise required to oversee and provide guidance to the district, including members who—(a) have expertise and experience in health management, business management and financial management, and(b) have expertise and experience in the provision of clinical and other health services, and(c) where appropriate, are representatives of universities, clinical schools or research centres, and(d) have knowledge and understanding of the community served by the district, and(e) have other backgrounds, skills, expertise, knowledge or experience appropriate for the district.(4) A local health district board is to have at least one member (who may also be one of the kinds of members referred to in subsection (3) (a)–(e)) who has expertise, knowledge or experience in relation to Aboriginal health.(5) A member of a local health district board holds office for such period (not exceeding 5 years) as may be specified in the member’s instrument of appointment.(6) A member whose term of office expires is eligible (if otherwise qualified) for re-appointment, but may not be appointed so as to hold office for more than 10 years in total (whether or not the appointments are consecutive).(7) One of the members of a local health district board is, by the relevant instrument of appointment or by a further instrument signed by the Minister, to be appointed as the Chairperson of the board.(8) A member of a local health district board is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.(9) Schedule 4A includes further provisions with respect to the constitution and procedure of local health district boards.s 26: Subst 2004 No 92, Sch 1 [2]. Am 2010 No 97, Sch 1.1 [7]. Subst 2011 No 4, Sch 1.1 [2]. Am 2016 No 45, Sch 2 [1]–[4].
27 (Repealed)
s 27: Subst 2004 No 92, Sch 1 [2]. Rep 2010 No 97, Sch 1.1 [8].
28 Functions of local health district boards
(1) The local health district board for a local health district has the following functions—(a) to ensure effective clinical and corporate governance frameworks are established to support the maintenance and improvement of standards of patient care and services by the local health district and to approve those frameworks,(b) to approve systems—(i) to support the efficient and economic operation of the local health district, and(ii) to ensure the district manages its budget to ensure performance targets are met, and(iii) to ensure that district resources are applied equitably to meet the needs of the community served by the district,(c) to ensure strategic plans to guide the delivery of services are developed for the local health district and to approve those plans,(d) to provide strategic oversight of and monitor the local health district’s financial and operational performance in accordance with the State-wide performance framework against the performance measures in the performance agreement for the district,(e) to appoint, and exercise employer functions in relation to, the chief executive of the local health district,(e1) to ensure that the number of NSW Health Service senior executives employed to enable the local health district to exercise its functions, and the remuneration paid to those executives, is consistent with any direction by the Health Secretary or condition referred to in section 122 (2),(f) to confer with the chief executive of the local health district in connection with the operational performance targets and performance measures to be negotiated in the service agreement for the district under the National Health Reform Agreement,(g) to approve the service agreement for the local health district under the National Health Reform Agreement,(h) to seek the views of providers and consumers of health services, and of other members of the community served by the local health district, as to the district’s policies, plans and initiatives for the provision of health services, and to confer with the chief executive of the district on how to support, encourage and facilitate community and clinician involvement in the planning of district services,(i) to advise providers and consumers of health services, and other members of the community served by the local health district, as to the district’s policies, plans and initiatives for the provision of health services,(j) to endorse the local health district’s annual report,(k) to liaise with the boards of other local health districts and specialty network governed health corporations in relation to both local and State-wide initiatives for the provision of health services,(l) such other functions as are conferred or imposed on it by the regulations.(2) A local health district board must not exercise a function in a way that is inconsistent with the exercise of a function by the Health Secretary (including a function that has been delegated to the Health Secretary).s 28: Subst 2004 No 92, Sch 1 [2]; 2010 No 97, Sch 1.1 [9]. Am 2012 No 36, Sch 1 [1]; 2016 No 2, Sch 2 [2]; 2018 No 2, Sch 2 [1].
29 Removal of members of local health district board and appointment of administrator
(1) The Minister may at any time, for any reason or no reason and without notice, by order published in the Gazette—(a) remove any member or all members of a local health district board from office, or(b) remove all members of a local health district board from office and appoint, as administrator of the local health district concerned, the chief executive of the district or any other person specified in the order for such period as may be specified in the order.(2) If the Minister appoints an administrator of a local health district under this section, the Minister is (as soon as is reasonably practicable after the appointment is made) to make a statement in Parliament concerning the basis for the appointment of the administrator.(3) An administrator of a local health district has and may exercise, subject to any conditions that may be specified in the order by which the administrator is appointed, all the functions of the chief executive and board for that district.(4) An administrator of a local health district is entitled to be paid from the funds of that district such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the administrator.(5) The regulations may make provision with respect to administrators of local health districts.s 29: Subst 2004 No 92, Sch 1 [2]; 2010 No 97, Sch 1.1 [10].
29A (Repealed)
s 29A: Ins 2004 No 92, Sch 1 [2]. Rep 2010 No 97, Sch 1.1 [10].
Division 3 Other committees and councils
ch 3, pt 2, div 3 (s 29B): Ins 2004 No 92, Sch 1 [2].
29B Other committees and councils
The chief executive may establish such committees and councils as he or she considers appropriate to assist the local health district in the exercise of its functions.ch 3, pt 2, div 3 (s 29B): Ins 2004 No 92, Sch 1 [2].
Part 3 Functions of local health districts
30 Combined management or assistance in management of public hospitals, health institutions, health services or health support services
(cf AHS Act s 22)
(1) Any two or more local health districts, or any one or more local health districts and any one or more non-district health organisations, may, by agreement, jointly control and manage any public hospital, health institution, health service or health support service.(2) A local health district may, by agreement, manage any public hospital, health institution, health service or health support service under the control of another local health district or a non-district health organisation, or assist in that management, for and on behalf of that other local health district or non-district health organisation.(3) A local health district must not enter into an agreement under this section without the approval of the Minister.(4) A public hospital, health institution, health service or health support service is not, for the purposes of this or any other Act, to be regarded as being under the control of a local health district because the local health district manages, or assists in the management of, the hospital, health institution, health service or health support service for and on behalf of another local health district or of a non-district health organisation.(5) In this section—non-district health organisation means—(a) a statutory health corporation, or(b) an affiliated health organisation.s 30: Am 2011 No 4, Sch 1.2 [3] [4].
31 Opening and closing of hospitals, health institutions, health services or health support services
(cf AHS Act s 23)
(1) A local health district may, subject to any direction under this Act, at any time establish such hospitals, health institutions, health services or health support services as it thinks necessary for the exercise of its functions.(2) A local health district may, subject to any direction under this Act, at any time—(a) close any public hospital or health institution, or cease to provide any health service or health support service, under its control, or(b) restrict the range of health care or treatment provided by any public hospital, health institution, health service or health support service under its control.(3) A local health district must, before implementing any decision to exercise its functions under subsection (1) or (2)—(a) notify the Health Secretary of the decision, and(b) ensure that the decision is appropriate having regard to the functions of the local health district.(4) (Repealed)s 31: Am 2004 No 92, Sch 1 [3] [4].
32 Determination of role, functions and activities of local health districts
(1) The Health Secretary may, from time to time, determine the role, functions and activities of any public hospital, health institution, health service or health support service under the control of a local health district and, for that purpose, give any necessary directions to the local health district.(2) The Minister may direct a local health district to do any of the following if the Minister is satisfied that it is in the public interest to do so—(a) establish any hospital, health institution, health service or health support service,(b) close any public hospital or health institution, or cease to provide any health service or health support service, under its control,(c) restrict the range of health care or treatment provided by any public hospital, health institution or health service under its control.s 32: Subst 2004 No 92, Sch 1 [5]. Am 2010 No 97, Sch 1.1 [11].
33 (Repealed)
s 33: Am 2004 No 92, Sch 2 [6]. Rep 2006 No 2, Sch 2 [9].
34 Powers in relation to property
(cf AHS Act s 27)
(1) A local health district may do all or any of the following—(a) acquire land (including an interest in land), for the purpose of the exercise of its functions, by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 and acquire any other property (whether or not the land or other property is required for the purposes of any public hospital, health institution, health service or health support service under the control of the local health district),(b) sell, lease, mortgage or otherwise dispose of land or any other property,(c) dedicate land as a public road under the Roads Act 1993.(2) A local health district must not, without the approval of the Minister, do any of the following—(a) acquire land by any means,(b) dispose of land by sale, lease, mortgage or otherwise,(c) dedicate land as a public road.(3) A local health district may request the Minister to give approval to (and the Minister may approve) a disposition or dedication of land or a use of land, being a disposition, dedication or use—(a) that is contrary to a provision of, or a trust arising under, the Crown grant of that land, or(b) that, if this section had not been enacted, may make the land liable to be forfeited to the Crown.(4) If the Minister has given an approval under this section to a disposition or dedication of land, or to a use of land, neither the disposition or dedication of the land (or its subsequent use) nor the use of the land—(a) is to be regarded as a breach of any provision of, or any trust arising under, the Crown grant of that land, or(b) is to make the land liable to be forfeited to the Crown.
(1) For the purposes of the Public Works Act 1912, any acquisition of land under section 34 (1) (a) is taken to be for an authorised work and the local health district concerned is, in relation to that authorised work, taken to be the Constructing Authority.(2) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.
36 Power to accept property by gifts, devises and bequests
(cf AHS Act s 29)
(1) A local health district may acquire any property by gift, devise or bequest and may agree to and carry out the conditions of any such gift, devise or bequest, but only if the carrying out of any such conditions is not inconsistent with the purposes and functions of the district.(2) The rule of law against remoteness of vesting does not apply to any such condition to which a local health district has agreed.(3) A local health district may act as trustee of money or other property vested in the local health district on trust.s 36: Am 2010 No 97, Sch 1.2 [4].
37 Contracts of local health district
(cf AHS Act s 30)
(1) A local health district may make and enter into contracts or agreements with any person for the performance of services, or for the supply of goods, plant, machinery or material, by that person with respect to the exercise by the local health district of its functions conferred or imposed by or under this or any other Act.(2) A local health district may also, with the approval of the Health Secretary, make and enter into contracts or agreements with any person for the provision of any service by the local health district to that person. Any such contract or agreement may extend to the provision of the service outside the area of the local health district.(3) Any contract or agreement under this section is taken, for the purposes of the Constitution Act 1902, to be a contract or agreement for or on account of the Public Service of New South Wales.s 37: Am 2004 No 92, Sch 1 [6].
38 Investments
(cf AHS Act s 31)
(1) A local health district may invest money held by it—(a) if the local health district is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the local health district is permitted to invest money under that Part, or(b) if the local health district is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way authorised for the time being for the investment of trust funds and in any other way approved by the Minister with the concurrence of the Treasurer.(2) A local health district may at any time dispose of any of its investments and apply the proceeds for the purpose of exercising its functions.(3) This section is, in relation to the investment of any funds, subject to the terms of any trust applying to those funds.s 38: Am 2018 No 70, Sch 3.31 [1].
39 Local health district by-laws
(1) Power to make model by-laws The Health Secretary may make model by-laws, not inconsistent with this Act or the regulations, for or with respect to the following—(a) the management of any public hospital, health institution, health service or health support service under the control of a local health district,(b) the provision of hospital services and other health services to patients of any public hospital or health institution under the control of a local health district and to other persons,(c) the appointment, control and governance of visiting practitioners in connection with public hospitals, health institutions and health services under the control of a local health district, including the conditions subject to which visiting practitioners may perform work at or in relation to any such hospital, institution or service,(d) regulating or prohibiting smoking at any public hospital, health institution or health service under the control of a local health district, including by designating an area as a smoke-free area for the purposes of section 6A (Smoke-free areas—outdoor public places) of the Smoke-free Environment Act 2000,(e) the custody and use of the seal of a local health district,(f) the keeping of records concerning a local health district’s acts and decisions,(g) the appointment and functions of the councils and committees of a local health district.(2) Publication of model by-laws The Health Secretary may publish an order on the NSW legislation website setting out the terms of model by-laws.(3) Adoption of model by-laws A local health district may make by-laws that adopt the provisions of the model by-laws as published on the NSW legislation website in respect of the area in which the local health district is constituted with such additions, omissions or other modifications (if any) as may be made by it in accordance with this section.(4) Modification to, and omission of, provisions of model by-laws A local health district may make modifications to, or omit, a provision of the model by-laws only with the approval of the Health Secretary.(5) Additional by-laws A local health district may make additional by-laws in relation to matters specified in subsection (1) but not covered by the model by-laws provided the additional by-laws are not inconsistent with the model by-laws. A copy of any such additional by-laws are to be provided to the Health Secretary within 30 days of the making of the by-laws.(6) Precondition for making of certain by-laws A model by-law or by-law may not be made for or with respect to any matter referred to in subsection (1) (c) unless the Health Secretary or local health district (as the case requires) has received advice from the Medical Services Committee in relation to the substance of the model by-law or by-law proposed to be made.(7) Exception to precondition Subsection (6) does not apply to a model by-law or by-law if the Medical Services Committee does not furnish advice to the Health Secretary or local health district (as the case requires) in relation to the relevant model by-law or by-law—(a) within 30 days after a notice from the Health Secretary or local health district requesting such advice has been served on the Committee, or(b) within such further period as the Health Secretary or local health district may specify in the notice or in another notice served on the Committee.(8) What by-laws may provide for A provision of a model by-law or by-law may do any one or any combination of the following—(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind,(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body.(9) Power to amend or repeal by-laws A power to make model by-laws or by-laws includes the power to amend or repeal any model by-law or by-law made in the exercise of that power.(10) Judicial notice Judicial notice is to be taken of a by-law authenticated by the seal of the local health district concerned or in accordance with section 135. It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of the by-law have been complied with and performed.s 39: Am 2004 No 92, Sch 1 [7] [8]; 2006 No 2, Sch 2 [10]; 2012 No 56, Sch 2 [1]. Subst 2016 No 45, Sch 2 [5].
40 Delegations by local health district
(cf AHS Act s 34)
(1) A local health district may delegate any of its functions (other than a function set out in subsection (1A)) to—(a) any member of the NSW Health Service, or(b) a visiting practitioner, council or committee appointed by the local health district, or(c) a body appointed by the Minister or Health Secretary under this or any other Act, or(d) a person or body of a class prescribed by the regulations.Note—Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions.(1A) A local health district cannot delegate—(a) its power of delegation under this section, or(b) its functions under section 31 (2), or(c) the power to make by-laws.(2) The Health Secretary may give any direction to a local health district concerning delegations under this section that the Health Secretary thinks fit.(3) Nothing in this section authorises a local health district to delegate the whole of its functions to another person.(4) (Repealed)s 40: Am 2004 No 92, Schs 1 [9], 2 [7]; 2006 No 2, Sch 2 [11] [12]; 2010 No 52, Sch 3.4 [1].
Chapter 4 Statutory health corporations
ch 4, introduction: Am 2004 No 92, Sch 2 [8] [9]. Rep 2006 No 2, Sch 2 [3].
Part 1 Constitution of statutory health corporations
41 Constitution of statutory health corporations
(cf AHS Act s 5, PH Act s 18 (1))
(1) There are constituted by this section such statutory health corporations as are specified from time to time in Schedule 2.(2) A statutory health corporation is a body corporate with the corporate name specified in Schedule 2.(3) A statutory health corporation is to be a chief executive governed health corporation, a board governed health corporation or a specialty network governed health corporation, as specified from time to time in Schedule 2.s 41: Am 2004 No 92, Sch 1 [10]; 2010 No 97, Sch 1.1 [12]; 2011 No 4, Sch 1.1 [3].
42 Amendment of Schedule 2 (Statutory health corporations)
(cf AHS Act s 6, PH Act s 18 (2) and (2A))
The Governor may, by order published on the NSW legislation website—(a) amend Schedule 2 by inserting, altering or omitting the name of a statutory health corporation, or(a1) amend Schedule 2 by changing its governance from—(i) chief executive governance to board governance or specialty network governance, or(ii) board governance to chief executive governance or specialty network governance, or(iii) specialty network governance to chief executive governance or board governance, or(b) omit Schedule 2 and insert instead a Schedule containing the names of statutory health corporations and the nature of their governance.s 42: Am 2004 No 92, Sch 1 [11] [12]; 2009 No 56, Sch 4.27; 2010 No 97, Sch 1.1 [13]; 2011 No 4, Sch 1.1 [4].
43 Dissolution, transfer, amalgamation or change of name or nature of governance of statutory health corporations
(cf AHS Act ss 9 and 21, PH Act ss 13A, 14 and 15)
(1) The Governor may, by order published on the NSW legislation website—(a) dissolve a statutory health corporation, or(b) transfer a statutory health corporation to a local health district, or(c) amalgamate 2 or more statutory health corporations, orand may, in the order, amend Schedules 1 and 2 accordingly.(d) change the name or nature of governance of a statutory health corporation,(2) An order under this section must specify the date (being a date that is on or after the date it is published on the NSW legislation website) on which it takes effect. However, if no date is specified in the order, the order is taken to have specified the date on which it is published on the NSW legislation website as the date on which it takes effect.(3) An order is not to be made under this section unless the Minister is of the opinion that the order is in the public interest and has recommended to the Governor that the order be made.(4) A dissolution, transfer, amalgamation or change of name or nature of governance under this section may be effected without holding an inquiry.Note—Part 3 of Chapter 10 provides for the transfer by order of the Governor of public hospitals, health institutions, health services, health support services and property between local health districts and statutory health corporations.Section 116 provides for the transfer of staff between public health organisations.s 43: Am 2004 No 92, Sch 2 [10] [11]; 2009 No 56, Sch 4.27.
44 Consequential and transitional provisions on the making of orders
(cf AHS Act ss 10 and 21 and Sch 6, PH Act ss 14, 15 and 19)
(1) Schedule 4 has effect with respect to orders made under this Part.(2) An order under this Part may contain provisions, not inconsistent with the provisions of or made under Schedule 4, of a savings and transitional nature consequent on the making of the order.
45 Provisions relating to the corporate nature of statutory health corporations
(cf AHS Act s 11, PH Act s 18 (3))
(1) A statutory health corporation—(a) has perpetual succession, and(b) is to have an official seal, and(c) may take proceedings, and be proceeded against, in its corporate name, and(d) may do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for or incidental to the purposes for which the corporation is constituted, and(e) does not represent the Crown.Note—Section 150 (1) of the Evidence Act 1995 provides for judicial notice to be taken in relation to a seal of any body established under an Act.(2) However, a statutory health corporation cannot employ any staff.Note—Staff may be employed under Part 1 of Chapter 9 in the NSW Health Service to enable a statutory health corporation to exercise its functions.s 45: Am 2006 No 2, Sch 2 [13].
Part 2 Control and management of statutory health corporations
ch 4, pt 2, hdg: Subst 2010 No 97, Sch 1.1 [14].
Division 1 Board governed health corporations
ch 4, pt 2, div 1, hdg: Ins 2004 No 92, Sch 2 [12].
46 Constitution of health corporation boards
(cf AHS Act s 12, PH Act s 22)
(1) There is constituted a health corporation board for each board governed health corporation.(2) A health corporation board is to be called the “[name of board governed health corporation] Board”.s 46: Am 2004 No 92, Sch 2 [13].
47 Health corporation board to control affairs of board governed health corporation
(cf AHS Act s 13, PH Act s 22 (1))
(1) The affairs of a board governed health corporation are to be controlled by the health corporation board for that corporation.(2) Any act, matter or thing done in the name of, or on behalf of, a board governed health corporation by the health corporation board for that corporation, or with the authority of that board, is taken to have been done by that corporation.s 47: Am 2004 No 92, Sch 2 [13].
48 Health corporation board subject to control and direction of Minister
(cf AHS Act s 14, PH Act s 22A (1))
A health corporation board is subject to the control and direction of the Minister, except in relation to the contents of a recommendation or report made by the board to the Minister.
49 Membership of health corporation board
(cf AHS Act s 15, PH Act s 22 (1A))
(1) A health corporation board is to consist of the following persons—(a) the chief executive of the board governed health corporation (who holds office as an ex-officio member),(b) persons (not being less than 5 or more than 11) appointed by the Minister.(2) One of the persons appointed by the Minister is to be a member of the NSW Health Service who is employed in connection with the board governed health corporation concerned.(3) Subsection (2) does not apply to a health corporation board if less than 50 members of the NSW Health Service are employed to enable the board governed health corporation concerned to exercise its functions.s 49: Am 2003 No 52, Sch 1 [1]; 2004 No 92, Sch 2 [13]; 2006 No 2, Sch 2 [14]; 2009 No 15, Sch 1.4 [1].
50 Provisions relating to members and procedure of boards
(cf AHS Act s 16, PH Act ss 23–27B)
Schedule 5 has effect with respect to the members and procedure of health corporation boards.
51 Appointment of chief executive of board governed health corporation
(1) A chief executive is to be appointed by the Health Secretary for each board governed health corporation.(2) Any such chief executive is employed in the NSW Health Service.(3)–(5) (Repealed)(6) The affairs of a board governed health corporation are to be managed by the chief executive of the corporation.(7) The chief executive of a board governed health corporation—(a) has, and may exercise, such functions as are conferred or imposed on the chief executive by or under this or any other Act, and(b) is, in the exercise of his or her functions, subject to the control and direction of the health corporation board for the corporation.s 51: Subst 2004 No 92, Sch 1 [13]. Am 2006 No 2, Sch 2 [15]; 2009 No 15, Sch 1.4 [2]; 2016 No 2, Sch 2 [3].
52 Removal of members and appointment of administrator
(cf AHS Act s 18, PH Act s 26)
(1) The Governor may at any time, for any reason or no reason and without notice, by order published in the Gazette—(a) remove any member (including the chief executive) or all members of a health corporation board from office, or(b) remove all members of a health corporation board from office and appoint, as administrator of the board governed health corporation concerned, a person specified in the order for such period as may be specified in the order, or(c) remove all members of a health corporation board (other than the chief executive) from office and appoint, as administrator of the board governed health corporation concerned, the chief executive for such period as may be specified in the order.(2) The chief executive of a board governed health corporation ceases to hold office as chief executive if removed from office as a member of the health corporation board of the corporation.(3) An administrator of a board governed health corporation has and may exercise, subject to any conditions that may be specified in the order by which the administrator was appointed, all the functions of the health corporation board for that corporation.(4) An administrator of a board governed health corporation is entitled to be paid from the funds of that corporation such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the administrator.(5) The regulations may make provision with respect to administrators of board governed health corporations.(6) If the chief executive of a board governed health corporation is a NSW Health Service senior executive, the removal of the chief executive from office under this section is taken to be a termination of employment under section 121H.(7) (Repealed)s 52: Am 2004 No 92, Schs 1 [14] [15], 2 [13] [14]; 2006 No 2, Sch 2 [16]; 2016 No 2, Sch 2 [4].
Division 2 Chief executive governed health corporations
ch 4, pt 2, div 2: Ins 2004 No 92, Sch 1 [16].
52A Appointment of chief executive of chief executive governed health corporation
(1) A chief executive is to be appointed by the Health Secretary for each chief executive governed health corporation.(2) Any such chief executive is employed in the NSW Health Service.(3) If any such chief executive is not a NSW Health Service senior executive, the provisions of Part 3 of Chapter 9 relating to the termination of employment of senior executives extend to the chief executive.s 52A: Ins 2004 No 92, Sch 1 [16]. Am 2006 No 2, Sch 2 [17]. Subst 2016 No 2, Sch 2 [5].
52B Chief executive to manage and control affairs of chief executive governed health corporation
(1) The affairs of a chief executive governed health corporation are to be managed and controlled by the chief executive of the corporation.(2) Any act, matter or thing done in the name of, or on behalf of, a chief executive governed health corporation by its chief executive is taken to have been done by the corporation.s 52B: Ins 2004 No 92, Sch 1 [16].
52C Functions of chief executive generally
The chief executive of a chief executive governed health corporation has, and may exercise, such functions as are conferred or imposed on the chief executive by or under this or any other Act.s 52C: Ins 2004 No 92, Sch 1 [16]. Subst 2010 No 97, Sch 1.1 [15].
52D Advisory councils
(1) The Minister may establish an advisory council for each chief executive governed health corporation.(2) The constitution, procedure and functions of an advisory council are to be as determined by the Minister.s 52D: Ins 2004 No 92, Sch 1 [16].
52E Other committees and councils
The chief executive may establish such committees and councils as he or she considers appropriate to assist the chief executive governed health corporation in the exercise of its functions.s 52E: Ins 2004 No 92, Sch 1 [16].
Division 3 Specialty network governed health corporations
ch 4, pt 2, div 3: Ins 2010 No 97, Sch 1.1 [16].
52F Boards of specialty network governed health corporations
(1) A board is to be established for each specialty network governed health corporation.(2) The provisions of Division 2 of Part 2 of Chapter 3 (except section 26 (1)) apply in relation to a board of a specialty network governed health corporation in the same way as they apply to a local health district board, subject to the following modifications—(a) a reference in those provisions (however expressed) to a local health district board is to be read as if it were a reference to the board for a specialty network governed health corporation,(b) a reference in those provisions (however expressed) to a local health district is to be read as if it were a reference to a specialty network governed health corporation,(c) a reference in those provisions (however expressed) to the chief executive of a local health district is to be read as if it were a reference to the chief executive of a specialty network governed health corporation,(d) such other modifications as may be prescribed by the regulations.s 52F: Ins 2010 No 97, Sch 1.1 [16]. Subst 2011 No 4, Sch 1.1 [5].
52G Appointment of chief executive of specialty network governed health corporations
(1) A chief executive is to be appointed for each specialty network governed health corporation by the board for the specialty network with the concurrence of the Health Secretary.(1A) Any such chief executive is employed in the NSW Health Service and is a NSW Health Service senior executive.(2) Sections 24 and 25 apply in relation to a chief executive of a specialty network governed health corporation in the same way as they apply to a chief executive of a local health district, subject to the following modifications—(a) a reference in those sections to the chief executive of a local health district is to be read as if it were a reference to the chief executive of a specialty network governed health corporation,(b) a reference in those sections to a local health district is to be read as if it were a reference to a specialty network governed health corporation,(c) a reference in those sections to a local health district board is to be read as if it were a reference to the board of a specialty network governed health corporation,(d) such other modifications as may be prescribed by the regulations.s 52G: Ins 2010 No 97, Sch 1.1 [16]. Am 2016 No 2, Sch 2 [6]–[8].
Part 3 Functions of statutory health corporations
53A Combined management or assistance in management of public hospitals, health institutions, health services or health support services
(1) Any two or more statutory health corporations may, by agreement, jointly control and manage any public hospital, health institution, health service or health support service.(2) A statutory health corporation may, by agreement, manage any public hospital, health institution, health service or health support service under the control of another statutory health corporation, or assist in that management, for and on behalf of that other statutory health corporation.(3) A statutory health corporation must not enter into an agreement under this section without the approval of the Minister.(4) A public hospital, health institution, health service or health support service is not, for the purposes of this or any other Act, to be regarded as being under the control of a statutory health corporation because the statutory health corporation manages, or assists in the management of, the public hospital, health institution, health service or health support service for and on behalf of another statutory health corporation.s 53A: Ins 2010 No 52, Sch 3.4 [2].
53 Determination of functions of statutory health corporations
(cf AHS Act s 24, PH Act s 13 (4))
(1) The relevant authority may, from time to time, determine the role, functions and activities of any public hospital, health institution, health service or health support service under the control of a statutory health corporation and, for that purpose, give any necessary directions—(a) in the case of a chief executive governed health corporation, to the chief executive of that corporation, or(b) in the case of a board governed health corporation, to the health corporation board for that corporation, or(c) in the case of a specialty network governed health corporation, to the corporation.(2) Without limiting subsection (1), the Minister may direct a statutory health corporation to do any of the following if the Minister is satisfied that it is in the public interest to do so—(a) establish any hospital, health institution, health service or health support service,(b) close any public hospital or health institution, or cease to provide any health service or health support service, under its control,(c) restrict the range of health care or treatment provided by any public hospital, health institution or health service under its control.(3) In this section, means—(a) in relation to a board governed health corporation, the Minister, and(b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Health Secretary.s 53: Am 2004 No 92, Sch 1 [17] [18]; 2010 No 97, Sch 1.1 [17] [18].
54 Other committees and councils
The chief executive may establish such committees and councils as he or she considers appropriate to assist the statutory health corporation in the exercise of its functions.s 54: Am 2004 No 92, Sch 2 [15]. Rep 2006 No 2, Sch 2 [18]. Ins 2016 No 45, Sch 2 [6].
55 Powers in relation to property
(cf AHS Act s 27, PH Act s 20)
(1) A statutory health corporation may do all or any of the following—(a) acquire land (including an interest in land), for the purpose of the exercise of its functions, by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 and acquire any other property (whether or not the land or other property is required for the purposes of any public hospital, health institution, health service or health support service under the control of the statutory health corporation),(b) sell, lease, mortgage or otherwise dispose of land or any other property,(c) dedicate land as a public road under the Roads Act 1993.(2) A statutory health corporation must not, without the approval of the Minister, do any of the following—(a) acquire land by any means,(b) dispose of land by sale, lease, mortgage or otherwise,(c) dedicate land as a public road.(3) A statutory health corporation may request the Minister to give approval to (and the Minister may approve) a disposition or dedication of land or a use of land, being a disposition, dedication or use—(a) that is contrary to a provision of, or a trust arising under, the Crown grant of that land, or(b) that, if this section had not been enacted, may make the land liable to be forfeited to the Crown.(4) If the Minister has given an approval under this section to a disposition or dedication of land, or to a use of land, neither the disposition or dedication of the land (or its subsequent use) nor the use of the land—(a) is to be regarded as a breach of any provision of, or any trust arising under, the Crown grant of that land, or(b) is to make the land liable to be forfeited to the Crown.
(1) For the purposes of the Public Works Act 1912, any acquisition of land under section 55 (1) (a) of this Act is taken to be for an authorised work and the statutory health corporation concerned is, in relation to that authorised work, taken to be the Constructing Authority.(2) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.
57 Power to accept property by gifts, devises and bequests
(cf AHS Act s 29)
(1) A statutory health corporation may acquire any property by gift, devise or bequest and may agree to and carry out the conditions of any such gift, devise or bequest, but only if the carrying out of any such conditions is not inconsistent with the purposes and functions of the corporation.(2) The rule of law against remoteness of vesting does not apply to any such condition to which a statutory health corporation has agreed.(3) A statutory health corporation may act as trustee of money or other property vested in the statutory health corporation on trust.
58 Contracts of statutory health corporations
(cf AHS Act s 30)
(1) A statutory health corporation may make and enter into contracts or agreements with any person for the performance of services, or for the supply of goods, plant, machinery or material, by that person with respect to the exercise by the statutory health corporation of its functions conferred or imposed by or under this or any other Act.(2) A statutory health corporation may also, with the approval of the relevant authority, make and enter into contracts or agreements with any person for the provision of any service by the statutory health corporation to that person.(3) Any contract or agreement under this section is taken, for the purposes of the Constitution Act 1902, to be a contract or agreement for or on account of the Public Service of New South Wales.(4) In this section, means—(a) in relation to a board governed health corporation, the Minister, and(b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Health Secretary.s 58: Am 2004 No 92, Sch 1 [19] [20]; 2010 No 97, Sch 1.1 [19].
59 Investments
(cf AHS Act s 31, PH Act s 29)
(1) A statutory health corporation may invest money held by it—(a) if the statutory health corporation is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the statutory health corporation is permitted to invest money under that Part, or(b) if the statutory health corporation is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way authorised for the time being for the investment of trust funds and in any other way approved by the Minister with the concurrence of the Treasurer.(2) A statutory health corporation may at any time dispose of any of its investments and apply the proceeds for the purpose of exercising its functions.(3) This section is, in relation to the investment of any funds, subject to the terms of any trust applying to those funds.s 59: Am 2018 No 70, Sch 3.31 [2].
60 Statutory health corporation by-laws
(1) Power to make model by-laws The relevant authority may make model by-laws, not inconsistent with this Act or the regulations, for or with respect to the following—(a) the management of any public hospital, health institution, health service or health support service under the control of a statutory health corporation,(b) the provision of health services to patients of any public hospital or health institution under the control of a statutory health corporation and to other persons,(c) the appointment, control and governance of visiting practitioners in connection with public hospitals, health institutions and health services under the control of a statutory health corporation, including the conditions subject to which visiting practitioners may perform work at or in relation to any such hospital, institution or service,(d) regulating or prohibiting smoking at any public hospital, health institution or health service under the control of a statutory health corporation, including by designating an area as a smoke-free area for the purposes of section 6A (Smoke-free areas—outdoor public places) of the Smoke-free Environment Act 2000,(e) the custody and use of the seal of a statutory health corporation,(f) the keeping of records concerning the acts and decisions of a statutory health corporation,(g) in the case of a board governed health corporation—(i) the keeping of records concerning the acts and decisions of the board, and(ii) the procedure for the calling of meetings of the board and for the conduct of business at those meetings,(h) the appointment and functions of the councils and committees of a statutory health corporation.(2) Publication of model by-laws The relevant authority may publish an order on the NSW legislation website setting out the terms of model by-laws.(3) Adoption of model by-laws A statutory health corporation may make by-laws that adopt the provisions of the model by-laws as published on the NSW legislation website with such additions, omissions or other modifications (if any) as may be made by it in accordance with this section.(4) Modification to, and omission of, provisions of model by-laws A statutory health corporation may make modifications to, or omit, a provision of the model by-laws only with the approval of the relevant authority.(5) Additional by-laws for specialty network governed health corporation A statutory health corporation that is a specialty network governed health corporation may make additional by-laws in relation to matters specified in subsection (1) but not covered by the model by-laws provided the additional by-laws are not inconsistent with the model by-laws. A copy of any such additional by-laws are to be provided to the relevant authority within 30 days of the making of the by-laws.(6) Precondition for making of certain by-laws A model by-law or by-law may not be made for or with respect to any matter referred to in subsection (1) (c) unless the relevant authority or specialty network governed health corporation (as the case requires) has received advice from the Medical Services Committee in relation to the substance of the model by-law or by-law proposed to be made.(7) Exception to precondition Subsection (6) does not apply to a model by-law or by-law if the Medical Services Committee does not furnish advice to the relevant authority or specialty network governed health corporation (as the case requires) in relation to the relevant model by-law or by-law—(a) within 30 days after a notice from the relevant authority or specialty network governed health corporation requesting such advice has been served on the Committee, or(b) within such further period as the relevant authority or specialty network governed health corporation may specify in the notice or in another notice served on the Committee.(8) What by-laws may provide for A provision of a model by-law or by-law may do any one or any combination of the following—(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind,(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body.(9) Power to amend or repeal by-laws A power to make model by-laws or by-laws includes the power to amend or repeal any model by-law or by-law made in the exercise of that power.(10) Judicial notice Judicial notice is to be taken of a by-law authenticated by the seal of the statutory health corporation concerned or in accordance with section 135. It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of the by-law have been complied with and performed.(11) In this section, means—(a) in relation to a board governed health corporation, the Minister, and(b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Health Secretary.s 60: Am 2004 No 92, Sch 1 [21]–[23]; 2006 No 2, Sch 2 [19], 2010 No 97, Sch 1.1 [20]; 2012 No 56, Sch 2 [2]. Subst 2016 No 45, Sch 2 [7].
61 Delegations by statutory health corporations
(cf AHS Act s 34)
(1) A statutory health corporation may delegate to any member of the NSW Health Service the exercise of any of its functions, other than—(a) this power of delegation, or(b) the power to make by-laws.Note—Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions.(2) The relevant authority may give any direction to a statutory health corporation concerning delegations under this section that the relevant authority thinks fit.(3) Nothing in this section authorises a statutory health corporation to delegate the whole of its functions to another person.(4) For the purposes of this section, the functions of a board governed health corporation include the functions of its health corporation board.(5) In this section, means—(a) in relation to a board governed health corporation, the Minister, and(b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Health Secretary.s 61: Am 2004 No 92, Sch 1 [24]–[26]; 2006 No 2, Sch 2 [20] [21]; 2010 No 97, Sch 1.1 [21].
Chapter 5 Affiliated health organisations
ch 5, introduction: Rep 2006 No 2, Sch 2 [3].
62 Recognition of affiliated health organisations
(cf PH Act s 29B)
(1) An organisation or institution whose name is included in column 1 of Schedule 3 is an affiliated health organisation in respect of any of its recognised establishments and recognised services.(2) The Governor may, by order published on the NSW legislation website—(a) amend column 1 of Schedule 3 by inserting the name of any organisation or institution (other than a local health district or statutory health corporation) that controls any hospital, health institution, health service or health support service, or(b) amend column 2 of Schedule 3 by inserting a description of any hospital, health institution, health service or health support service under the control of the organisation or institution, or(c) amend Schedule 3 by omitting or altering any such name or description, or(d) omit Schedule 3 and insert instead a Schedule containing the names of any organisations or institutions (other than local health districts or statutory health corporations) and descriptions of any hospital, health institution, health service or health support service under their control.(3) An order made under subsection (2) may amend column 2 of Schedule 3 to describe an organisation or institution by reference to some or all of the hospitals, health institutions, health services or health support services it controls.(4) An order cannot be made under this section—(a) inserting or altering the name of an organisation or institution in column 1 of Schedule 3 unless the organisation or institution (or its governing body) consents to it, or(b) inserting or altering a description of any hospital, health institution, health service or health support service under the control of an organisation or institution in column 2 of Schedule 3 unless the organisation or institution (or its governing body) consents to it.(5) In this section, governing body of an organisation or institution means the person or the board or other body that is responsible for the management of the organisation or institution.s 62: Am 2009 No 56, Sch 4.27.
62A Declared affiliated health organisations
(1) The affiliated health organisations specified in the regulations under this section are declared affiliated health organisations for the purposes of this Act.(2) Any such regulation may apply only to such of the recognised establishments or recognised services (or parts of them) of an affiliated health organisation as are specified in the regulation. In any such case, the organisation concerned is a declared affiliated health organisation for the purposes of this Act only to the extent of its recognised establishments or services (or parts of them) that are so specified.(3) A declared affiliated health organisation must not employ any staff in respect of its recognised establishments and recognised services.Note—Staff may be employed under Part 1 of Chapter 9 in the NSW Health Service to enable a declared affiliated health organisation to exercise its functions in respect of its recognised establishments and recognised services.(4) However, nothing in this section prevents a declared affiliated health organisation from entering into arrangements for the management, on its behalf, of its recognised establishments or recognised services.(5) A regulation cannot be made under this section in relation to an affiliated health organisation except with the concurrence of the affiliated health organisation.s 62A: Ins 2006 No 2, Sch 2 [22].
62B Recognition of networked affiliated health organisations
(1) The Minister may, by order published in the Gazette, declare that one or more affiliated health organisations are to be treated as a network for the purposes of the National Health Reform Agreement in respect of some or all of their recognised establishments or recognised services.(2) Such an order may be made—(a) on the application of one or more affiliated health organisations, or(b) on the Minister’s own initiative.(3) The Minister may make an order pursuant to the application of one or more affiliated health organisations only if the Minister is satisfied that—(a) in the case of an application by one affiliated health organisation—(i) the affiliated health organisation has more than one recognised establishment or service, or(ii) the affiliated health organisation provides State wide services or services of State significance, or(b) in the case of an application by two or more affiliated health organisations, the affiliated health organisations have agreed to form a health network.(4) An order under this section may specify a name for the network.(5) An order cannot be made under this section in relation to an affiliated health organisation except with the concurrence of the organisation (or its governing body).Editorial note—For orders under this section, see Gazette No 9 of 28.1.2011, p 300.s 62B: Ins 2010 No 97, Sch 1.1 [22]. Am 2012 No 36, Sch 1 [1].
63 Affiliated health organisations may make by-laws
(cf PH Act s 29AE)
(1) Power to make by-laws An affiliated health organisation may, with the approval of the Minister, make by-laws, not inconsistent with this Act or the regulations, for or with respect to the following—(a) the management of any of its recognised establishments and recognised services,(b) the provision of health services to patients of any hospitals or health institutions that are its recognised establishments,(c) the provision to other persons of health services that are its recognised services,(d) the appointment, control and governance of visiting practitioners in connection with hospitals, health institutions and health services that are its recognised establishments or recognised services (including the conditions subject to which visiting practitioners may perform work at or in relation to any such hospital, institution or service),(e) the appointment, control and governance of persons employed by it in respect of its recognised establishments and recognised services and any other matter or thing necessary or convenient to ensure the maintenance of discipline and efficiency in the service of the affiliated health organisation of any such employees or group or class of employees,(f) the keeping of records concerning the acts, decisions and proceedings of its governing body in respect of its recognised establishments and recognised services,(g) the procedure for the calling of meetings of its governing body and for the conduct of business at those meetings in respect of its recognised establishments and recognised services,(h) the appointment and functions of committees of the governing body in respect of its recognised establishments and recognised services.(1A) Subsection (1) (e) does not apply in relation to a declared affiliated health organisation.(2) Publication of model by-laws The Minister may publish an order in the Gazette setting out the terms of model by-laws.(3) Precondition for making of by-laws A by-law may not be made by an affiliated health organisation for or with respect to any matter referred to in subsection (1) (d) unless—(a) it is in substance the same as a model by-law under an order for the time being in force under subsection (2) and the Minister has received advice from the Medical Services Committee in relation to the substance of the model by-law, or(b) the Minister has received advice from the Medical Services Committee in relation to the substance of the by-law proposed to be made by the affiliated health organisation.(4) Exception to precondition Subsection (3) does not apply to a by-law if the Medical Services Committee does not furnish advice to the Minister in relation to the relevant model by-law or the by-law—(a) within 30 days after a notice from the Minister requesting such advice has been served on the Committee, or(b) within such further period as the Minister may specify in the notice or in another notice served on the Committee.(5) What by-laws may provide for A provision of a by-law may do any one or any combination of the following—(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind,(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body.(6) Judicial notice Judicial notice is to be taken of a by-law authenticated by the seal of the affiliated health organisation concerned or in accordance with section 135. It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of the by-law have been complied with and performed.s 63: Am 2006 No 2, Sch 2 [23].
63A Criminal and disciplinary matters concerning employees of non-declared affiliated health organisations
(1) In this section, non-declared organisation means an affiliated health organisation that is not a declared affiliated health organisation.(2) The provisions of Part 2 of Chapter 9 apply, with such modifications as are necessary, to and in respect of a non-declared organisation and its employees in the same way as those provisions apply to and in respect of a declared affiliated health organisation and the members of the NSW Health Service who are employed under Part 1 of Chapter 9 in connection with the declared affiliated health organisation.s 63A: Ins 2006 No 2, Sch 2 [24].
64 Transfer of recognised establishments and recognised services of affiliated health organisations
(cf AHS Act ss 10 and 21)
(1) The Governor may, by order published on the NSW legislation website, transfer to any local health district or statutory health corporation—(a) any public hospital or health institution of an affiliated health organisation that is a recognised establishment of the organisation, or(b) any health service or health support service of an affiliated health organisation that is a recognised service of the organisation, orand may amend Schedules 1, 2 and 3 accordingly.(c) any of the assets, rights or liabilities of an affiliated health organisation relating to a recognised establishment or recognised service of the organisation,(2) However, such an order cannot be made unless the affiliated health organisation consents to the transfer.(3) An order under this section is to specify the date (being a date that is on or after the date it is published on the NSW legislation website) on which it takes effect. However, if no date is specified in the order, the order is taken to have specified the date on which is it published on the NSW legislation website as the date on which it takes effect.(4) Schedule 4 has effect with respect to orders made under this section.(5) An order under this section may contain provisions, not inconsistent with the provisions of or made under Schedule 4, of a savings and transitional nature consequent on the making of the order.Note—Part 3 of Chapter 10 provides for the transfer by order of the Governor of public hospitals, health institutions, health services, health support services and property between local health districts and statutory health corporations.Section 116 provides for the transfer of staff between public health organisations.s 64: Am 2009 No 56, Sch 4.27.
64A Regulations relating to movement of staff between NSW Health Service and non-declared affiliated health organisations
(1) This section does not apply to or in respect of a declared affiliated health organisation.(2) The regulations may make provision for or with respect to the movement of staff between affiliated health organisations and the NSW Health Service.(3) Without limiting subsection (2), any such regulations may provide for—(a) the retention by any such staff of their accrued leave entitlements, and(b) the apportioning of the liability for the cost of accrued leave entitlements of staff who move between affiliated health organisations and the NSW Health Service.(4) The Minister may give directions to an affiliated health organisation for the purpose of making due allowance and appropriate adjustments for liabilities incurred by reason of the operation of any regulation made under this section (or liabilities with respect to accrued leave entitlements generally). Any such direction has effect despite any determination made in respect of the affiliated health organisation under section 127.s 64A: Ins 2006 No 2, Sch 2 [25].
65 Minister may determine role, functions and activities of affiliated health organisations
(1) The Minister may, from time to time, determine the role, functions and activities of any recognised establishment or recognised service of an affiliated health organisation and, for that purpose, give the organisation any necessary directions.(2) Before making a determination under subsection (1), the Minister is to consult with the affiliated health organisation concerned having regard to the health care philosophy of the organisation.
66 Appointment of chief executives of public hospitals and health services of affiliated health organisations
(cf PH Act s 40B)
(1) A person cannot be appointed as the chief executive of a public hospital that is a recognised establishment, or health service that is a recognised service, of an affiliated health organisation unless the Health Secretary consents to the appointment.(2) In this section—chief executive means the person (however described) who is responsible to the affiliated health organisation for the management, supervision or administration of the public hospital or health service concerned.
67 Liability of affiliated health organisations in relation to recognised establishments and recognised services
A matter or thing done in relation to any of an affiliated health organisation’s recognised establishments or recognised services by—(a) the organisation, or(b) the governing body of the organisation, or(c) a member of the governing body of the organisation, ordoes not, if the matter or thing was done in good faith for the purposes of executing this or any other Act, subject the member or the person so acting personally to any action, liability, claim or demand.(d) any person acting under the direction of that organisation or governing body,
Chapter 5A Ambulance services
ch 5A: Ins 2006 No 2, Sch 2 [26].
Part 1 Preliminary
ch 5A, pt 1: Ins 2014 No 60, Sch 1 [1].
67AA Definitions
In this Chapter—ambulance fee means a fee for ambulance services charged by the Health Secretary under this Chapter.appointed body means a committee, board or other body appointed by the Health Secretary under section 67AB.Chief Commissioner has the same meaning as in the State Debt Recovery Act 2018.child means a person under 16 years of age.debt notice—see section 67Q.debt recovery order has the same meaning as in the State Debt Recovery Act 2018.fee invoice means a fee invoice issued by the Health Secretary under section 67P.fee review means a review of a decision to charge an ambulance fee conducted under Part 6.payment rules means the payment rules made by the Health Secretary under section 67O.scale of fees means the scale of fees for the provision of ambulance services fixed by the Minister under section 67L.s 67AA: Ins 2007 No 89, Sch 2.5 [1]. Subst 2014 No 60, Sch 1 [1]. Am 2018 No 11, Sch 3.6 [1].
Part 2 Provision of ambulance services
ch 5A, pt 2, hdg: Ins 2014 No 60, Sch 1 [1].
67AB Appointed body
(1) The Health Secretary may appoint a committee, board or other body as an appointed body for the purposes of this Chapter.(2) An appointed body is to consist of such members appointed by the Health Secretary as the Health Secretary thinks fit.(3) The procedure of an appointed body is to be determined by the Health Secretary or (subject to any determination of the Health Secretary) by the appointed body.(4) A member of an appointed body holds office for such period (not exceeding 5 years) as is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.(5) The Health Secretary may terminate the appointment of a member of an appointed body at any time for any or no reason by notice in writing to the member.(6) A member of an appointed body is entitled to such fees and allowances as the Health Secretary may determine from time to time.(7) A member of an appointed body is not personally liable for any act or omission done or omitted to be done in good faith for the purposes of this Chapter.(8) If subsection (7) prevents liability attaching to a member of an appointed body, the liability attaches instead to the Health Secretary.s 67AB: Ins 2007 No 89, Sch 2.5 [1].
67A Ambulance Service of NSW
(1) The Ambulance Service of NSW comprises those staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services under this Chapter.(2) A chief executive of the Ambulance Service of NSW may be appointed by the Health Secretary.(3) Any such chief executive is employed in the NSW Health Service and is a NSW Health Service senior executive.s 67A: Ins 2006 No 2, Sch 2 [26]. Am 2016 No 2, Sch 2 [9].
67B Provision etc of ambulance services
(1) The Health Secretary has, on behalf of the Crown, the following functions—(a) to provide, conduct, operate and maintain ambulance services,(b) to co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance services,(c) in connection with ambulance services referred to in paragraph (a), to protect persons from injury or death, whether or not those persons are sick or injured,(d) to adopt and implement all necessary measures (including systems of planning, management and quality control) as will best ensure the efficient and economic operation and use of resources in the provision of ambulance services,(e) to consult and co-operate with individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the provision of ambulance services,(f) to co-ordinate and plan the future development of ambulance services, and towards that end, to support, encourage and facilitate the organisation of community involvement in the planning of those services,(g) to set objectives and determine priorities in relation to the provision of ambulance services and to monitor whether those objectives are achieved,(h) to achieve and maintain adequate standards of ambulance services,(i) to make available to the public reports, information and advice concerning the operation of ambulance services,(j) to provide assistance to, or co-operate with, any person or organisation in connection with the depiction of ambulance services in the news or entertainment media,(k) to exercise such other functions in relation to ambulance services as may be conferred or imposed on the Health Secretary by the regulations.(2) The exercise of functions under this section in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989.(3) The Health Secretary may delegate the exercise of any function of the Health Secretary under this section (other than this power of delegation) to an appointed body.s 67B: Ins 2006 No 2, Sch 2 [26]. Am 2007 No 89, Sch 2.5 [2].
67C Ambulance Service Advisory Board
(1) There is established by this Act an Ambulance Service Advisory Board (the Advisory Board).(2) The members of the Advisory Board are as follows—(a) the chief executive of the Ambulance Service of NSW,(b) not fewer than 8 and not more than 12 persons appointed by the Health Secretary.(3) The persons appointed as members of the Advisory Board are to be persons who, in the opinion of the Health Secretary, have expertise and experience in one or more of the following areas—(a) health management,(b) financial management,(c) clinical paramedic services or other health services,(d) business management.(4) (Repealed)(5) The function of the Advisory Board is to provide advice to the Health Secretary or to an appointed body in relation to the exercise of functions under this Chapter in respect of the provision of ambulance services.(6) The Advisory Board has such other functions as may be conferred or imposed on it by the Health Secretary.(7) Schedule 6 has effect with respect to the members and procedure of the Advisory Board.s 67C: Ins 2006 No 2, Sch 2 [26]. Am 2007 No 89, Sch 2.5 [3]; 2018 No 2, Sch 2 [2]–[5].
67D (Repealed)
s 67D: Ins 2006 No 2, Sch 2 [26]. Rep 2014 No 60, Sch 1 [2].
67E Unauthorised provision of ambulance transport
(1) A person must not—(a) directly or indirectly provide or take part in the provision of transport for sick or injured persons for fee or reward, orwithout the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.(b) conduct for fee or reward any operations similar to the operations carried on by the Health Secretary under this Chapter,Maximum penalty—50 penalty units.(2) The Health Secretary may revoke any consent given, or revoke or vary any condition imposed, under this section.(3) This section does not apply to—(a) the St John Ambulance Australia (NSW) in respect of operations similar to the operations lawfully carried on by that body immediately before the day on which this section commences, or(b) the Royal Flying Doctor Service of Australia (NSW Section), or(c) the mines rescue company, within the meaning of the Coal Industry Act 2001, (or a member, director or employee of that company) in the exercise of mines rescue functions under Division 3 of Part 3, or Part 4, of that Act, or(d) a member of the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001, or(e) any person (or class of persons) prescribed by the regulations.s 67E: Ins 2006 No 2, Sch 2 [26].
67F Unauthorised collections
(1) A person must not organise, conduct or take part in the collection or soliciting of money or property from the public for, towards or in return for the provision of ambulance services without the consent of the Health Secretary and except in accordance with such conditions (if any) as the Health Secretary may from time to time impose.Maximum penalty—50 penalty units.(2) The Health Secretary may revoke any consent given, or revoke or vary any condition imposed, under this section.(3) This section does not apply to—(a) any person engaged in the conduct or operation of the State Ambulance Insurance Plan established under the Health Insurance Levies Act 1982, or(b) an insurer under a policy of insurance to the extent that the money or the property represents consideration for an indemnity provided in that policy against the cost of the transport of a sick or injured person, being an indemnity incidental to the risks insured under that policy, or(c) any person (or class of persons) prescribed by the regulations, or(d) any person acting as authorised by this Act.s 67F: Ins 2006 No 2, Sch 2 [26]. Am 2014 No 60, Sch 1 [3].
67G False calls for provision of ambulance services
A person who requests the provision of an ambulance service knowing that no ambulance service is in the circumstances required or likely to be required by any person is guilty of an offence.Maximum penalty—50 penalty units.ss 67G–67I: Ins 2006 No 2, Sch 2 [26].
67H Honorary ambulance officers
(1) The Health Secretary may appoint such persons as the Health Secretary thinks fit to be honorary ambulance officers.Note—Honorary ambulance officers are not members of the NSW Health Service employed under Part 1 of Chapter 9.(2) Honorary ambulance officers—(a) may carry out, without remuneration, such of the functions of the Health Secretary under this Act as the Health Secretary may from time to time direct, and(b) are subject to the control and supervision of the Health Secretary.ss 67G–67I: Ins 2006 No 2, Sch 2 [26].
67I Exculpation from personal liability
A member of staff of the Ambulance Service of NSW or an honorary ambulance officer is not liable for any injury or damage caused by the member of staff or officer in the carrying out, in good faith, of any of the member’s or officer’s duties relating to—(a) the provision of ambulance services, or(b) the protection of persons from injury or death, whether or not those persons are or were sick or injured.ss 67G–67I: Ins 2006 No 2, Sch 2 [26].
67J Obstruction of and violence against ambulance officers
(1) A person must not intentionally obstruct or hinder an ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.Maximum penalty—50 penalty units or imprisonment for 2 years, or both.(2) A person must not, by an act of violence against an ambulance officer, intentionally obstruct or hinder the ambulance officer when the ambulance officer is providing or attempting to provide ambulance services to another person or persons.Maximum penalty—Imprisonment for 5 years.(3) If on the trial of a person charged with an offence against subsection (2) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly.(4) In this section—ambulance officer means a member of staff of the Ambulance Service of NSW.ambulance services means the work of rendering first aid to, or transporting, sick and injured persons.s 67J: Ins 2010 No 52, Sch 1.1 [1].
Part 3 Fees for ambulance services
ch 5A, pt 3 (ss 67K–67O): Ins 2014 No 60, Sch 1 [4].
67K Health Secretary may charge fee for ambulance services
(1) The Health Secretary may charge a fee for ambulance services provided by or on behalf of the Health Secretary.(2) An ambulance fee may be charged to any person liable for payment of the ambulance fee.(3) An ambulance fee is not to exceed the fee fixed for the relevant service by the scale of fees in force at the time that the fee is charged.ch 5A, pt 3 (ss 67K–67O): Ins 2014 No 60, Sch 1 [4].
67L Scale of fees
The Minister may, by order published in the Gazette—(a) fix a scale of fees in respect of ambulance services provided by the Health Secretary, and(b) amend or revoke any scale of fees so fixed.ch 5A, pt 3 (ss 67K–67O): Ins 2014 No 60, Sch 1 [4].
67M Who is liable for payment of ambulance fee
(1) A person is liable for payment of an ambulance fee for ambulance services provided to the person.(2) A person is not liable for payment of an ambulance fee if the person is a child.(3) However, if ambulance services are provided to a child, each parent or guardian of the child is jointly and severally liable for payment of an ambulance fee for the provision of those ambulance services.(4) A parent or guardian of a child who pays an ambulance fee for the provision of ambulance services to that child is entitled to recover a contribution from any other parent or guardian who is also liable for payment of that fee.(5) The contribution payable—(a) is to be determined as if each parent or guardian of the child were liable for an equal share of the ambulance fee, and(b) is recoverable as a debt in a court of competent jurisdiction.(6) A court may reduce a person’s contribution, or exempt a person from making a contribution, if the court considers it just and equitable in the circumstances.ch 5A, pt 3 (ss 67K–67O): Ins 2014 No 60, Sch 1 [4].
67N Exemptions
A person is exempt from the requirement to pay an ambulance fee if—(a) a fee is not payable for ambulance services provided to the person under section 17 of the Health Insurance Levies Act 1982, or(b) the person is the holder of a concession card of a kind prescribed by the regulations, or(c) the person is otherwise exempt from payment under the regulations or the payment rules.Note—Under section 17 of the Health Insurance Levies Act 1982, a fee is not payable if the person was, at the time the service was provided—(a) a contributor to a health benefits fund conducted by an organisation to which section 10 of that Act applies, or(b) a contributor to the State Ambulance Insurance Plan.ch 5A, pt 3 (ss 67K–67O): Ins 2014 No 60, Sch 1 [4].
67O Payment rules
(1) The Health Secretary may, by order published in the Gazette, make rules about the payment of ambulance fees (payment rules).(2) The payment rules may provide for the following—(a) exemptions from the payment of ambulance fees,(b) waiver or reduction of ambulance fees,(c) extension of time to pay,(d) payment by instalments,(e) fee reviews,(f) any other matters permitted by this Act.(3) The payment rules must not be inconsistent with this Act or the regulations.ch 5A, pt 3 (ss 67K–67O): Ins 2014 No 60, Sch 1 [4].
Part 4 How ambulance fees are charged
ch 5A, pt 4: Ins 2014 No 60, Sch 1 [4].
67P How fee is charged—fee invoices
(1) The Health Secretary charges an ambulance fee by—(a) issuing an invoice (a fee invoice) for the ambulance fee, and(b) serving the fee invoice on a person liable for payment of the fee.(2) The fee invoice must—(a) specify the amount of the ambulance fee and the ambulance services for which the fee is payable (including the date on which the services were provided), and(b) specify a due date for payment of the ambulance fee, and(c) include the required information about fee reviews, and(d) include any other information that the regulations require to be included in the fee invoice.(3) The regulations may prescribe a form in which a fee invoice is to be given.(4) Information required to be included in a fee invoice may be incorporated in the fee invoice or accompany the fee invoice.s 67P: Ins 2014 No 60, Sch 1 [4].
67Q Debt notice may be issued if fee not paid
(1) If an ambulance fee specified in a fee invoice served on a person is not paid in full by the date that is 7 days after the due date for payment specified in the fee invoice, the Health Secretary may—(a) issue a notice (a debt notice) for the outstanding amount, and(b) serve the debt notice on the person.(2) The debt notice must—(a) specify the amount of the ambulance fee that is unpaid and the ambulance services for which the fee is payable (including the date on which the services were provided), and(b) specify a due date for payment of the ambulance fee, and(c) include advice to the effect that, if the ambulance fee is not paid in full by the due date—(i) the Health Secretary can refer the matter to the Chief Commissioner for the taking of debt recovery action under the State Debt Recovery Act 2018, and(ii) debt recovery costs may be payable by the person if debt recovery action is taken under that Act, and(d) include the required information about fee reviews, and(e) include advice to the effect that the Health Secretary is not required to conduct a fee review if the application for review is received after the date for payment of the ambulance fee specified in the debt notice, and(f) include any other information that the regulations require to be included in the debt notice.(3) The date specified in a debt notice as the due date for payment of the ambulance fee has effect as the due date for payment of the ambulance fee instead of the date specified as the due date in the relevant fee invoice.(4) The regulations may prescribe a form in which a debt notice is to be given.(5) Information required to be included in a debt notice may be incorporated in the debt notice or accompany the debt notice.(6) A debt notice under this Act is declared to be a debt notice for the purposes of the State Debt Recovery Act 2018.s 67Q: Ins 2014 No 60, Sch 1 [4]. Am 2018 No 11, Sch 3.6 [2]–[4].
67R Required information about fee reviews
For the purposes of a fee invoice or debt notice, the required information about fee reviews is the following information—(a) advice to the effect that the person served with the fee invoice or debt notice can apply for a review by the Health Secretary of the decision to charge the ambulance fee, in accordance with the payment rules, if the person seeks an exemption, waiver or reduction of the fee, extension of time to pay or to pay by instalments,(b) the process for applying for such a review,(c) the circumstances in which a person is exempt from payment of an ambulance fee under this Act or the regulations or the payment rules,(d) advice to the effect that any decision to waive or reduce the fee, extend the time to pay or permit payment by instalments will be made in accordance with the payment rules,(e) information on how a copy of the payment rules can be obtained.s 67R: Ins 2014 No 60, Sch 1 [4].
67S Due date for payment of ambulance fee
(1) The due date for payment of an ambulance fee specified in a fee invoice or debt notice must be at least 21 days after it is served on the person.(2) A fee invoice or debt notice served by post is not invalid merely because it specifies as the due date a date that is less than 21 days after it was served on the person.(3) In such a case however, the due date is extended to a date that is 21 days after the fee invoice or debt notice was served and the fee invoice or debt notice is taken to specify that date as the due date.s 67S: Ins 2014 No 60, Sch 1 [4].
67T Change of payment arrangements
(1) The Health Secretary may, in accordance with the payment rules, change the payment arrangements for an ambulance fee charged to a person by—(a) reducing the amount payable, or(b) extending the time to pay, or(c) permitting the fee to be paid by instalments or reducing instalments.(2) The Health Secretary changes the payment arrangements for an ambulance fee by serving notice in writing of the change on the person who has been charged the fee.(3) Any fee invoice or debt notice served on the person before notice of the change is taken to be amended in accordance with the changed payment arrangements.(4) If the Health Secretary permits payment of an ambulance fee by instalment and an instalment of the ambulance fee is not paid by a due date for payment of an instalment, the remaining instalments immediately become payable.(5) The Health Secretary must not change payment arrangements for an ambulance fee after the matter has been referred to the Chief Commissioner for the making of a debt recovery order, unless the referral is revoked.Note—The Chief Commissioner must withdraw a debt recovery order made in relation to an ambulance fee if the referral is revoked.s 67T: Ins 2014 No 60, Sch 1 [4]. Am 2018 No 11, Sch 3.6 [5] [6].
Part 5 Recovery of ambulance fees
ch 5A, pt 5: Ins 2014 No 60, Sch 1 [4].
67U Ambulance fee is debt payable to Health Secretary
(1) An ambulance fee specified in a debt notice served on a person is a debt payable by the person to the Health Secretary.(2) The Health Secretary may recover the debt from the person in proceedings in a court of competent jurisdiction.(3) Subsection (2) ceases to apply if the matter is referred to the Chief Commissioner for the making of a debt recovery order under the State Debt Recovery Act 2018, unless the referral is revoked.s 67U: Ins 2014 No 60, Sch 1 [4]. Subst 2018 No 11, Sch 3.6 [7].
67V (Repealed)
s 67V: Ins 2014 No 60, Sch 1 [4]. Rep 2018 No 11, Sch 3.6 [8].
67W Information to be provided if debt is referred to Chief Commissioner
(1) If the Health Secretary refers a matter to the Chief Commissioner for debt recovery action under the State Debt Recovery Act 2018, the Health Secretary must provide to the Chief Commissioner the following information for the purposes of enabling the Chief Commissioner to exercise functions under that Act—(a) identifying information about the person who was provided with the ambulance services and, if that person was a child, about any parent or guardian of the child,(b) the date the ambulance services were provided,(c) the time the ambulance services were provided,(d) the location or pick up address at which ambulance services were provided,(e) the destination to which the person was taken after pick up,(f) the distance travelled as part of the ambulance services,(g) the unique identifying number allocated to the ambulance services by the Health Secretary,(h) any other information of a kind prescribed by the regulations.(2) A requirement to provide information is a requirement to provide so much of that information as is known to the Health Secretary.(3) This section applies in addition to any requirement to provide information under the State Debt Recovery Act 2018.(4) In this section—identifying information has the meaning given by the State Debt Recovery Act 2018.s 67W: Ins 2014 No 60, Sch 1 [4]. Subst 2018 No 11, Sch 3.6 [9].
67X Suspension of debt recovery action
The Health Secretary may, at any time, by notice in writing to the Chief Commissioner—(a) request the Chief Commissioner to suspend debt recovery action in relation to an ambulance fee that has been referred to the Chief Commissioner, or(b) request the Chief Commissioner to revoke the suspension of debt recovery action in relation to an ambulance fee referred to the Chief Commissioner.Note—Under Part 8 of the State Debt Recovery Act 2018, the Chief Commissioner is required to suspend debt recovery action if a request for suspension is made.s 67X: Ins 2014 No 60, Sch 1 [4]. Subst 2018 No 11, Sch 3.6 [10].
Part 6 Fee reviews
ch 5A, pt 6: Ins 2014 No 60, Sch 1 [4].
67Y Application for review of ambulance fee
(1) A person who is charged an ambulance fee may apply to the Health Secretary for a review of the decision to charge the ambulance fee.(2) An application for a review is to be made in accordance with the payment rules.(3) An applicant for review must provide to the Health Secretary, in support of an application, any supporting information or evidence that the payment rules require.s 67Y: Ins 2014 No 60, Sch 1 [4].
67Z Review by Health Secretary
(1) If an application for a fee review is duly made to the Health Secretary, the Health Secretary must, subject to this section, conduct a review of the decision to charge an ambulance fee.(2) The Health Secretary is not required to conduct a review—(a) if a review of the decision has already been conducted under this Part, or(b) if the application is received more than 7 days after the due date for payment specified in a debt notice served on the person, or(c) if the applicant has failed to provide any supporting information or evidence required to be provided by the payment rules, or(d) in such other circumstances as may be prescribed by the regulations.(3) The Health Secretary may also conduct a review of a decision to charge an ambulance fee of his or her own motion.(4) A review under this Part is a statutory internal review for the purposes of the State Debt Recovery Act 2018.s 67Z: Ins 2014 No 60, Sch 1 [4]. Am 2018 No 11, Sch 3.6 [11].
67ZA Extension of time to pay—on-time review application
(1) During the period in which an on-time review application is before the Health Secretary—(a) the Health Secretary must not issue a debt notice for the ambulance fee (if a debt notice has not yet been issued) or refer the matter to the Chief Commissioner for the making of a debt recovery order, and(b) the requirement to pay the ambulance fee is suspended.(2) The period in which an on-time review application is before the Health Secretary is the period starting on (and including) the day on which the application is received by the Health Secretary and ending on (and including) the day on which notice of the outcome of the review application is served on the person charged the ambulance fee.Note—Notice served by post is taken to be served on the person 7 days after it is sent, unless the person establishes otherwise.(3) After conducting the review or deciding not to conduct the review, the Health Secretary must change the payment arrangements for the ambulance fee by extending the time for payment of the ambulance fee by at least the number of days in the period in which the application was before the Health Secretary.(4) Subsection (3) does not apply if the Health Secretary decides to revoke the decision to charge the ambulance fee or waive the ambulance fee.(5) In this section—on-time review application means an application for review of a decision to charge an ambulance fee that is duly made to the Health Secretary and received by the Health Secretary—(a) before the issue of a debt notice for the ambulance fee, or(b) no later than 7 days after the due date for payment of the ambulance fee specified in a debt notice for the ambulance fee.Note—If the Health Secretary decides to conduct a review in relation to an application that is not an on-time review application, the Health Secretary may request the Chief Commissioner to suspend debt recovery action in relation to the ambulance fee.s 67ZA: Ins 2014 No 60, Sch 1 [4]. Am 2018 No 11, Sch 3.6 [12] [13].
67ZB Request for additional information
(1) The Health Secretary may, for the purpose of conducting a fee review, request additional information from an applicant for review.(2) The applicant must provide the additional information to the Health Secretary within 14 days of the request or within such greater period as the Health Secretary specifies.(3) If the information is not provided within the time specified, the review may be conducted without that information.s 67ZB: Ins 2014 No 60, Sch 1 [4].
67ZC Actions to be taken after review
(1) After conducting a fee review, the Health Secretary may—(a) revoke the decision to charge the ambulance fee, or(b) waive payment of the ambulance fee, or(c) confirm the decision to charge the ambulance fee with or without changing the payment arrangements for the fee.(2) The Health Secretary must, after conducting a fee review, revoke the decision to charge an ambulance fee—(a) if the person charged the fee is exempt from payment of the ambulance fee under this Act, the regulations or the payment rules, or(b) if the issue of the fee invoice or debt notice involved a mistake of identity, or(c) if the amount of the fee charged is incorrect, or(d) in any circumstances prescribed by the regulations.(3) The Health Secretary must, after conducting a fee review, change the payment arrangements for the ambulance fee if that action is required by this Act or the payment rules.(4) The payment rules may also make provision for circumstances in which the Health Secretary may, at his or her discretion, revoke a decision to charge an ambulance fee, waive payment of an ambulance fee or change the payment arrangements for an ambulance fee.(5) If the Health Secretary revokes a decision to charge a person with an ambulance fee, or waives payment of an ambulance fee, the Health Secretary must—(a) withdraw the fee invoice and any debt notice issued for the fee, and(b) if the matter has already been referred to the Chief Commissioner for the making of a debt recovery order, revoke the referral.(6) If a decision is revoked because of a mistake of identity, the Health Secretary may issue a new fee invoice for the fee to a person who is liable for payment of the fee.(7) If a decision is revoked because the amount of the fee charged was incorrect, the Health Secretary may issue a new fee invoice for the correct amount.(8) The regulations may provide for other circumstances in which a new fee invoice can be issued.s 67ZC: Ins 2014 No 60, Sch 1 [4]. Am 2018 No 11, Sch 3.6 [14].
67ZD Notice of outcome of application
(1) The Health Secretary is to notify an applicant for a fee review in writing of the outcome of the application within 42 days of receipt of the application.(2) If the Health Secretary requests additional information from the applicant, the 42-day period is extended by the number of days specified by the Health Secretary in the request as the period in which the additional information must be provided to the Health Secretary.(3) A reference to the outcome of an application includes a reference to a decision not to conduct a review on an application.s 67ZD: Ins 2014 No 60, Sch 1 [4].
Part 6A
67ZDA (Repealed)
ch 5A, pt 6A (s 67ZDA): Ins 2016 No 21, sec 3. Rep 2017 No 50, Sch 3 [1].
Part 7 Miscellaneous
ch 5A, pt 7: Ins 2014 No 60, Sch 1 [4].
67ZE Unpaid fees may be written off
(1) The Health Secretary may write off an unpaid ambulance fee, in whole or in part.(2) If the ambulance fee has already been referred to the Chief Commissioner for the making of a debt recovery order under the State Debt Recovery Act 2018, the Health Secretary must not write off the unpaid ambulance fee unless the referral has been revoked or debt recovery action has been suspended or cancelled.s 67ZE: Ins 2014 No 60, Sch 1 [4]. Am 2018 No 11, Sch 3.6 [15].
67ZF Service of notices
(1) A fee invoice, debt notice or notice of the outcome of an application for a fee review may be served on a person personally or by post.(2) Any other notice or other document required to be served on a person by this Chapter may be served—(a) personally, or(b) by post, or(c) by electronic transmission.(3) A notice or other document may be served by electronic transmission only if the person has consented to service of notices or other documents under this Chapter by electronic transmission. If a notice or other document is served electronically, the address for service is the address provided by the person.(4) It is to be presumed that a notice or other document sent to a person under this Chapter by post is served on the person 7 days after it is posted, unless the person establishes that it was not served within that 7-day period.s 67ZF: Ins 2014 No 60, Sch 1 [4].
67ZG Form of notices given to Chief Commissioner
Any notice given by the Health Secretary to the Chief Commissioner under this Chapter may be given by post, by means of document exchange or by electronic transmission.s 67ZG: Ins 2014 No 60, Sch 1 [4]. Am 2018 No 11, Sch 3.6 [16].
Chapter 6 Medicare Principles and Commitments
Introduction—
In this Chapter, the Medicare Principles and Commitments set out in section 26 of the Health Insurance Act 1973 of the Commonwealth are readopted as guidelines for the provision of public hospital services within the meaning of section 23E of that Act. They had previously been adopted in Part 4 of the Health Administration Act 1982, which was repealed by this Act. The Commonwealth Act makes the adoption by the State of the Principles and Commitments a condition of the grant of financial assistance by the Commonwealth to the State in respect of the provision of public hospital services.
68 Medicare Principles and Commitments
(1) The Medicare Principles and Commitments are adopted as guidelines for the provision of public hospital services to eligible persons in New South Wales.(2) The Medicare Principles and Commitments are as follows—MEDICARE PRINCIPLESThe Commonwealth and the States are committed to the following principles in the provision of public hospital services—Explanatory note—The Principles focus on the provision of public hospital services to eligible persons, but operate in an environment where eligible persons have the right to choose private health care in public and private hospitals supported by private health insurance.Choices of servicesPrinciple 1: Eligible persons must be given the choice to receive public hospital services free of charge as public patientsExplanatory note 1—Hospital services include in-patient, out-patient, emergency services (including primary care where appropriate) and day patient services consistent with currently acceptable medical and health service standards.Explanatory note 2—At the time of admission to a hospital, or as soon as practicable after that, an eligible person will be required to elect or confirm whether he or she wishes to be treated as a public or private patient.Universality of servicesPrinciple 2: Access to public hospital services is to be on the basis of clinical needExplanatory note 1—None of the following factors are to be a determinant of an eligible person’s priority for receiving hospital services—•whether or not an eligible person has health insurance,•an eligible person’s financial status or place of residence,•whether or not an eligible person intends to elect, or elects, to be treated as a public or private patient.Explanatory note 2—This principle applies equally to waiting times for elective surgery.Equity in service provisionPrinciple 3: To the maximum practicable extent, a State will ensure the provision of public hospital services equitably to all eligible persons, regardless of their geographical locationExplanatory note 1—This principle does not require a local hospital to be equipped to provide eligible persons with every hospital service they may need.Explanatory note 2—In rural and remote areas, a State should ensure provision of reasonable public access to a basic range of hospital services which are in accord with clinical practices.COMMITMENTSIn order to achieve Principles 1 to 3, the Commonwealth and States make the following Commitments regarding public hospital services for eligible persons—Information about service provisionCommitment 1: The Commonwealth and a State must make available information on the public hospital services eligible persons can expect to receive as public patientsExplanatory note 1—The State development of a Public Patients’ Hospital Charter in consultation with the Commonwealth will be a vehicle for the public dissemination of this information.Explanatory note 2—The Charter will set out the public hospital services available to public patients.Efficiency and quality of service provisionCommitment 2: The Commonwealth and the States are committed to making improvements in the efficiency, effectiveness and quality of hospital service deliveryExplanatory note—This includes a commitment to quality improvement, outcome measurement, management efficiency and effort to integrate the delivery of hospital and other health and health-related community services.(3) Expressions used in the Medicare Principles and Commitments (and the notes to them) set out in subsection (2) have the same meanings they have in the Medicare Principles and Commitments (and the notes to them) set out in section 26 of the Health Insurance Act 1973 of the Commonwealth.(4) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action, and, without limiting the generality of the foregoing, nothing in this section operates to create in any person legal rights not in existence before the enactment of this section.
Chapter 7 Charges for health services
Introduction—
This Chapter makes provision for the charging and collection of fees from certain patients and other clients of public health organisations.
69 Scale of fees
(cf PH Act s 30 (8) and (9))
(1) The Minister may, from time to time, by order published in the Gazette—(a) fix a scale of fees for hospital services and other health services received from any public health organisation, and(b) amend or revoke any scale of fees so fixed.(2) A scale of fees may be fixed, amended or revoked by the adoption by reference of any scale of fees (as in force at a particular time or as in force from time to time) fixed or determined by a Commonwealth authority or body. Any such adoption may be wholly or in part and with or without modification.(3) Except where a scale of fees has been fixed under this section, nothing in this section affects any right that a public health organisation may have to charge a fee for the provision of a hospital service or other health service.
70 Liability of persons for health service fees
(cf PH Act s 30 (1)–(5))
(1) Any person who receives any health service (other than a non-chargeable hospital service) from a public health organisation is liable to contribute towards the funds of the organisation, according to the person’s means, such sum in respect of the health service as is calculated in accordance with the scale of fees fixed under section 69.(2) That sum (if unpaid) may be recovered in any court of competent jurisdiction as a debt.(3) A written statement of the amount due, purporting to be signed by an authorised employee of the public health organisation concerned, is prima facie evidence of the amount being due.(4) The public health organisation may remit, postpone or write-off payment of all or any sums of money due to the organisation under this section.(5) In this section—of a public health organisation means an employee of the organisation who is authorised in writing by the chief executive of the organisation to certify any amount owing to it for the provision of a health service.
71 Care and treatment to be provided to persons without means
(cf PH Act s 30 (6))
A person without means must not be refused care or treatment for sickness or injury at any public hospital by reason only of the person’s inability to pay for the care or treatment.
72 Cost of relief granted to injured persons to be a charge on damages
(cf PH Act s 30A)
(1) This section applies to any person (the debtor) who is liable to a public health organisation for the cost of any health service (other than a non-chargeable hospital service) provided by the organisation in respect of any personal injury suffered by the person or another person.(2) If the debtor has a right to recover damages against any other person in respect of the personal injury, the amount of the debtor’s liability to the public health organisation is a charge on any money that is or may become payable in respect of such right to recover damages.(3) The charge is enforceable by way of an action brought by the public health organisation in the same way as if the action were an action brought by or on behalf of the debtor claiming the amount of such liability as special damages.(4) In any such action (or any judgment given concerning that action), the parties have, to the extent of the charge, the same rights and liabilities (and the court has the same powers) as if the action were by or on behalf of the debtor.(5) The action may be brought despite—(a) any judgment recovered by or on behalf of the debtor, and(b) any payment made to the debtor or any other person (except the public health organisation) in respect of the defendant’s liability, and(c) any complete or partial discharge given by the debtor.(6) However, any such payment or discharge in respect of a claim for damages is, to the extent of the payment or discharge, a valid discharge to the person making the payment or receiving the discharge if it is given after—(a) the person injured has ceased to receive health services in respect of the injury, and(b) the cost of all health services provided by any public health organisation has been fully paid or satisfied.
73 Order not to be made in certain circumstances
(cf PH Act s 32)
(1) An order is not to be made under this Chapter by a court if it is satisfied that (having regard to the means, estate, or property of the person in respect of whom the order is sought or to the circumstances of the case) the order would be unreasonable.(2) Nothing in this Chapter derogates from any rights that may exist for the recovery of money due.
74 Fees for medical attendance
(cf PH Act s 36)
(1) A medical practitioner is not entitled to charge a patient who is under treatment by the medical practitioner in any public hospital with any fees in respect of the treatment if that treatment is provided as part of the provision of a non-chargeable hospital service.(2) Any contract between a patient and a medical practitioner for any payment made in contravention of this section is unenforceable.
75 Hospital and other health services provided by Crown
A reference in this Chapter to a hospital service or other health service provided to a person by a public health organisation includes a reference to a hospital service or other health service provided by a public hospital controlled by the Crown (including the Minister or the Health Administration Corporation).
Chapter 8 Visiting practitioners
Introduction—
In this Chapter, Part 1 defines a visiting practitioner to be a medical practitioner or dentist appointed by a public health organisation (otherwise than as an employee) to practise as a medical practitioner or dentist at its hospitals or health institutions or in relation to its health services (as specified in the appointment). It also makes it clear that a visiting medical officer and an honorary medical officer are visiting practitioners appointed under a service contract with a public health organisation.
Part 2 explains, and provides for the prerequisites for the entry into, service contracts. It also enables the relevant Minister, on application from the Australian Medical Association (NSW) Limited or the Minister (or both), to appoint an arbitrator to determine certain matters involving fee-for-service contracts or sessional contracts of visiting medical officers (or both) throughout the public health system generally.
Part 3 requires visiting practitioners to report to the public health organisation that appointed them the fact that they have been charged with committing, or have been convicted of, a serious sex or violence offence or have had a finding of professional misconduct or unsatisfactory professional conduct made against them under the Health Practitioner Regulation National Law (NSW). A public health organisation must terminate the appointment of a visiting practitioner convicted of a serious sex or violence offence if the Health Secretary so directs. A public health organisation cannot terminate the appointment of a visiting practitioner of its own motion under the Part unless the Health Secretary has confirmed the organisation’s proposal to terminate the appointment. These provisions mirror those provided in Part 2 of Chapter 9 for employees in the NSW Health Service.
Part 4 enables individual visiting practitioners to appeal to the Minister (who must then appoint a Committee of Review) concerning decisions of public health organisations to reduce their clinical privileges, to refuse to re-appoint them or to suspend or terminate their appointments under service contracts.
Part 5 makes it clear that any agreement between a public health organisation and a visiting practitioner relating to the performance of work is not affected by this Act except as provided by Parts 2, 3 and 4 of this Chapter.
ch 8, introduction: Am 1999 No 85, Sch 2.28 [1]; 2000 No 53, Sch 1.10 [1]; 2010 No 34, Sch 2.27 [1].
Part 1 Classification of visiting practitioners
76 Who is a visiting practitioner?
(cf PH Act s 29K)
A visiting practitioner is a medical practitioner or dentist who is appointed by a public health organisation (otherwise than as an employee) to practise as a medical practitioner or dentist in accordance with the conditions of appointment at any of its public hospitals or health institutions, or in relation to any health service it provides, specified in the appointment.
77 What are the kinds of visiting practitioners?
(cf PH Act s 29K)
The kinds of visiting practitioners are—(a) visiting practitioners appointed under a service contract (whether as visiting medical officers or honorary medical officers), and(b) visiting practitioners appointed otherwise than under a service contract.
78 Who is a visiting medical officer?
(cf PH Act s 29K)
A visiting medical officer is a medical practitioner appointed under a service contract (whether the practitioner or his or her practice company is a party to the contract) to provide services as a visiting practitioner for monetary remuneration for or on behalf of the public health organisation concerned.
79 Who is an honorary medical officer?
(cf PH Act s 29K)
An honorary medical officer is a medical practitioner appointed under an honorary contract (whether the practitioner or his or her practice company is a party to the contract) to provide services as a visiting practitioner for or on behalf of the public health organisation concerned.Note—Section 84 defines honorary contract to mean a service contract under which the services of a medical practitioner are provided to or on behalf of a public health organisation otherwise than for monetary remuneration.
Part 2 Service contracts
Division 1 Classification of service contracts
80 What is a service contract?
(cf PH Act s 29K)
(1) A service contract is an agreement between—(a) a public health organisation and a medical practitioner under which the practitioner is appointed as a visiting practitioner to provide to or on behalf of the public health organisation the medical services that are specified in the agreement, or(b) a public health organisation and a practice company under which—(i) the medical practitioner who conducts his or her practice by means of the company is appointed as a visiting practitioner, and(ii) the company agrees to provide to or on behalf of the public health organisation the medical services, to be performed by the medical practitioner (as a visiting practitioner), that are specified in the agreement.(2) Any contract, agreement or other arrangement for the supply of medical services that is entered into as a result of a tendering process is not a service contract.
81 What are the kinds of service contracts?
The kinds of service contracts include (but are not limited to) the following—(a) fee-for-service contracts,(b) sessional contracts,(c) honorary contracts.
82 What is a fee-for-service contract?
(cf PH Act s 29K)
A fee-for-service contract is a service contract under which a medical practitioner (or the medical practitioner’s practice company) is remunerated for medical services performed by the medical practitioner by reference to a scale of fees for different kinds of medical services that is contained in, or specified or otherwise identified by, the contract.
83 What is a sessional contract?
(cf PH Act s 29K)
A sessional contract is a service contract under which the medical practitioner (or the medical practitioner’s practice company) is remunerated by reference to any hourly rate or rates for services provided, but not on a fee-for-service basis.
84 What is an honorary contract?
(cf PH Act s 29K)
An honorary contract is a service contract under which the services of a medical practitioner are provided to or on behalf of a public health organisation otherwise than for monetary remuneration.
Division 2 Entry into service contracts
85 When can medical practitioners elect to provide their services through their practice companies?
(1) A medical practitioner who a public health organisation wishes to appoint as a visiting medical officer may elect to be appointed under a service contract entered into between the organisation and the medical practitioner’s practice company.(2) However, no such election may be made unless the medical practitioner’s practice company—(a) carries public liability insurance to a level approved by the Health Secretary from time to time, and(b) carries professional indemnity insurance.(3), (4) (Repealed)s 85: Am 2003 No 52, Sch 1 [2]; 2010 No 34, Sch 2.27 [2] [3].
86 Service contracts to be in writing
(cf PH Act s 29RA)
(1) A visiting medical officer or honorary medical officer must not be appointed unless the terms and conditions to which the officer is to be subject are in the form of a written service contract between—(a) the officer (or the officer’s practice company), and(b) the relevant public health organisation.(2) An appointment made in contravention of this section is void.
87 Minister may approve of standard conditions for service contracts
(cf PH Act s 29RB)
(1) The Minister may, by order in writing, approve of sets of conditions (including remuneration) recommended by the Association for inclusion in service contracts, entered into on or after the day on which the order takes effect, of a class specified in the order.(2) A standard service contract, in relation to a class of service contracts (such as fee-for-service contracts, sessional contracts or honorary contracts), is a contract that, when entered into, contains the set of conditions (if any) approved for the time being under subsection (1) for those service contracts, whether or not it contains other conditions that are not inconsistent with the approved set of conditions.(3) An order under this section takes effect—(a) on the day the order is made, or(b) on such later day as may be specified in the order.(4) An order under this section is to specify a period for the purposes of section 89 (3) (being a period that does not exceed 5 years).
88 Standard service contracts to be used
(cf PH Act s 29RC)
(1) A service contract of a class for which there is a standard service contract must not be entered into unless it contains the set of conditions contained in the relevant standard service contract.(2) A service contract entered into in contravention of this section is void.(3) This section does not apply to honorary contracts.
Division 3 Arbitrations concerning certain service contracts in the public health system generally
89 Application for appointment of arbitrator
(cf PH Act s 29L)
(1) The Minister or the Association may apply (either jointly or individually) to the relevant Minister for the appointment of an arbitrator to determine—(a) the terms and conditions of work, the amounts or rates of remuneration and the bases on which those amounts or rates are applicable, in respect of medical services provided by visiting medical officers under fee-for-service contracts or sessional contracts (or both), and(b) the date or dates (not being a date or dates earlier than the date of the determination) on and from which any determination made under paragraph (a) is to have effect.Note—The Dictionary defines relevant Minister to mean the Minister administering the Industrial Relations Act 1996 for the time being.(2) An application is to be in the form approved by the relevant Minister from time to time.(3) An application that seeks to obtain a determination under this Part—(a) in relation to a class of service contracts for which there is a standard service contract, andcannot be made before the expiry of such period as may have been specified in the order under section 87 by force of which the condition concerned was last included in the standard service contract.(b) that, if made, would be at variance with a condition approved under section 87,s 89: Am 2000 No 53, Sch 1.10 [2].
90 Appointment of arbitrator by relevant Minister
(1) On receipt of an application under section 89, the relevant Minister must appoint a person in accordance with the regulations to be the arbitrator for the purposes of making a determination under this Part.(2) The regulations may make provision for or with respect to the appointment of persons as arbitrators (including the qualifications for appointment).s 90: Am 1999 No 76, Sch 9 [1] [2]. Subst 2016 No 48, Sch 2.20 [1].
91 Nature of determination
(cf PH Act s 29M)
(1) The arbitrator must, as soon as practicable after being appointed under section 90, determine—(a) the terms and conditions of work, the amounts or rates of remuneration and the bases on which those amounts or rates are applicable, in respect of medical services provided by visiting medical officers under fee-for-service contracts or sessional contracts (or both), and(b) the date or dates (not being a date or dates earlier than the date of the determination) on and from which any determination made under paragraph (a) is to have effect.(2) The arbitrator must endeavour to bring the persons appearing before the arbitrator to agreement regarding the matters in respect of which the arbitrator is required to make a determination under this Part.s 91: Am 2000 No 53, Sch 1.10 [3].
92 Manner of exercise of arbitrator’s functions
(cf PH Act s 29N)
(1) In making a determination under this Part, the arbitrator—(a) is not bound by the rules of evidence and may inform himself or herself on any matter as the arbitrator sees fit, and(b) must act judicially and be governed by equity and good conscience, without regard to technicalities or legal forms.(2) In making a determination under this Part, the arbitrator is to give effect to the same policies on increases in remuneration as those that the Industrial Relations Commission is required to give effect to under section 146C of the Industrial Relations Act 1996 when making or varying awards or orders relating to the conditions of employment of public sector employees.s 92: Am 2011 No 25, Sch 4 [1].
93 Rights of appearance, administration of oaths, legal representation
(cf PH Act s 29O)
(1) The Minister and the Association may appear before and be heard by an arbitrator by their respective representatives in any proceedings before the arbitrator.(2) Any other person may, by the person’s representative, appear before and be heard by the arbitrator—(a) only with the arbitrator’s leave, and(b) subject to such conditions as the arbitrator determines.(3) The arbitrator must not grant leave under subsection (2) unless the arbitrator considers that the person concerned has a special interest in the outcome of the proceedings.(4) The arbitrator may administer an oath to any person appearing as a witness in any proceedings before the arbitrator.(5) A person appearing before the arbitrator may be represented by an Australian legal practitioner.s 93: Am 2005 No 98, Sch 3.30 [1].
94 Conduct of proceedings and protection of arbitrator
(cf PH Act s 29P)
(1) Subject to this Part and the regulations, proceedings before the arbitrator are to be conducted in whatever manner the arbitrator may determine.(2) The arbitrator may, as he or she thinks fit, conduct any proceedings under this Part (or any part of the proceedings) in public or in private.(3) In the exercise of the arbitrator’s duty as arbitrator, the arbitrator has the same protection and immunity as a Judge of the Supreme Court.
95 Notification of determination and finality of determination
(cf PH Act s 29Q)
(1) The arbitrator must give written notice to the Minister and the Association of the arbitrator’s determination under this Part.(2) Except as provided by section 96, a determination made under this Part (or a purported determination)—(a) is final, and(b) may not be appealed against, reviewed, quashed or called into question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise).
96 Appeal to Full Bench of the Industrial Relations Commission
(cf PH Act s 29QA)
(1) The Minister or the Association may appeal to a Full Bench of the Industrial Relations Commission against a determination made under this Part.(2) Subject to subsection (1), the Industrial Relations Act 1996 applies to any such appeal in the same way as it applies to an appeal from a decision of a single member of the Industrial Relations Commission.Note—Part 7 of Chapter 4 of the Industrial Relations Act 1996 provides for appeals to the Full Bench of the Commission. Under section 188 of that Act, appeals lie to the Full Bench only by leave.
97 Interpretation of a determination
(1) The Minister or the Association may apply to the Supreme Court for a declaration of right under section 355C of the Industrial Relations Act 1996 in respect of the interpretation, application or operation of a determination made under this Part.(2) Subject to subsection (1), the Industrial Relations Act 1996 applies to any such application in the same way as it applies to an application for a declaration of right in relation to any other matter in which the Industrial Relations Commission has jurisdiction.s 97: Subst 2016 No 48, Sch 2.20 [2].
98 Determination contractually binding
(cf PH Act s 29R)
Any provision of any service contract that is inconsistent with a determination under this Part is, to the extent of the inconsistency, of no effect on and from the date or dates that the relevant determination is to take effect and the contract is, on and from that date or those dates, taken to be varied so as to include the terms of the determination.
Part 3 Criminal and disciplinary matters concerning visiting practitioners
99 Duty to report certain criminal and disciplinary matters
(1) A visiting practitioner appointed by a public health organisation who is charged with having committed, or is convicted of, a serious sex or violence offence must, within 7 days of the charge being laid or the conviction, report that fact in writing to the chief executive of the organisation.Note—The term serious sex or violence offence is defined in the Dictionary to mean an offence involving sexual activity, sexual touching or a sexual act, physical violence or the threat of physical violence that—(a) if committed in New South Wales, is punishable by imprisonment for 12 months or more, or(b) if committed elsewhere than in New South Wales, would have been an offence punishable by imprisonment for 12 months or more if committed in New South Wales.(2) A visiting practitioner appointed by a public health organisation who has a finding of unsatisfactory professional conduct or professional misconduct made against him or her under the Health Practitioner Regulation National Law (NSW) must, within 7 days of receiving notice of the finding—(a) report that fact to the chief executive of the organisation, and(b) provide the chief executive with a copy of that finding.s 99: Am 1999 No 94, Sch 4.114; 2010 No 34, Sch 2.27 [4]; 2018 No 33, Sch 5.9 [1].
99A Duty of chief executive to report certain conduct of visiting practitioner
(1) The chief executive of a public health organisation is to report to the relevant professional council any conduct of a visiting practitioner that the chief executive suspects on reasonable grounds may constitute professional misconduct or unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).(2) In this section, relevant professional council means—(a) in relation to a visiting practitioner who is a medical practitioner, the Medical Council of New South Wales, or(b) in relation to a visiting practitioner who is a dentist, the Dental Council of New South Wales.(3) If a chief executive is required to report the same conduct under this section and under section 142 of the Health Practitioner Regulation National Law (NSW), compliance with either section, or with alternative reporting requirements approved by the Health Secretary, satisfies the requirements of both sections.(4) A report made because of a requirement under this section is taken to be a complaint both for the purposes of Part 8 of the Health Practitioner Regulation National Law (NSW) and for the purposes of the Health Care Complaints Act 1993 (including sections 96 and 98 of that Act).s 99A: Ins 2004 No 98, Sch 4.3 [1]. Am 2005 No 98, Sch 2.29; 2010 No 34, Sch 2.27 [5]–[7]; 2019 No 1, Sch 1.8.
100 Termination of appointments in certain cases of serious sex or violence offences
(1) Chief executive to notify Health Secretary of certain matters The chief executive of a public health organisation must notify the Health Secretary of the following matters—(a) that a visiting practitioner of the organisation has been convicted (whether before or during the term of his or her appointment as a visiting practitioner) of a serious sex or violence offence,(b) whether or not the public health organisation proposes to terminate the appointment of the visiting practitioner and the reasons why it intends to terminate or not to terminate the appointment,(c) any written submissions made to the chief executive under subsection (3) concerning the conviction.(2) When chief executive to notify The chief executive is to notify the Health Secretary under subsection (1) within 30 days (or such further period as may be agreed to by the Health Secretary) of becoming aware of the visiting practitioner’s conviction.(3) Chief executive to afford practitioner opportunity to make submissions Before notifying the Health Secretary under subsection (1), the chief executive is to afford the visiting practitioner concerned a reasonable opportunity to make written submissions concerning any matter relevant to the conviction that the visiting practitioner wishes to have considered in determining whether or not to terminate the practitioner’s appointment.(4) Powers of Health Secretary on being notified On being notified of the matters referred to in subsection (1), the Health Secretary may—(a) confirm the proposed termination or retention of the visiting practitioner, or(b) refuse to confirm the proposed termination or proposed retention of the visiting practitioner and direct the public health organisation not to terminate or to terminate the appointment (as the case may be).(5) When public health organisation may terminate appointment on its own initiative A public health organisation may terminate the appointment of a visiting practitioner who has been convicted (whether before or during the term of his or her appointment as a visiting practitioner) of a serious sex or violence offence, but only if—(a) the chief executive has notified the Health Secretary under subsection (1) of the proposal to terminate the appointment and of the matters referred to in that subsection, and(b) the Health Secretary has notified the organisation that he or she has confirmed the organisation’s proposal to terminate the appointment.(6) Public health organisation must terminate appointment if Health Secretary directs A public health organisation must terminate the appointment of a visiting practitioner under this Part who has been convicted (whether before or during the appointment) of a serious sex or violence offence if the Health Secretary has directed the public health organisation to do so under subsection (4) (b).(7) Section does not apply to previously disclosed convictions This section does not apply to a conviction that occurred before a person was appointed as a visiting practitioner if before that appointment—(a) the person notified the chief executive of the public health organisation in writing of the fact of the conviction, and(b) the chief executive of the organisation reported the conviction to the Health Secretary, and(c) the Health Secretary notified the public health organisation in writing that he or she consented to the person being appointed as a visiting practitioner.(8) Functions of chief executive may be carried out by authorised person The functions of a chief executive of a public health organisation under this section may be carried out by a person who is authorised by the chief executive to do so.(9) Application of section This section extends to a conviction that occurred before the commencement of this section.
101 Protection of patients, clients and children to be paramount consideration
The protection of a public health organisation’s patients and clients and of children for which it is responsible is to be the paramount consideration in relation to determining whether to terminate a visiting practitioner’s appointment under this Part.
102 No compensation for termination of appointment
No compensation (whether for breach of contract or otherwise) is payable in respect of the termination of the appointment of a visiting practitioner under this Part.
103 Appeal rights
(1) Nothing in this Part affects any right to appeal that a visiting practitioner may have under Part 4 in relation to the termination of his or her appointment.(2) However, a visiting practitioner cannot appeal under that Part against a decision under this Part to terminate his or her appointment because the practitioner has been convicted of a serious sex or violence offence in respect of—(a) a minor (but only if the offence committed involves sexual activity or sexual touching or a sexual act with, or in relation to the minor), or(b) a patient or client of the practitioner if the offence is committed during the course of his or her practice as a medical practitioner or dentist (whether as a visiting practitioner or otherwise).Note—Section 21 (1) of the Interpretation Act 1987 defines minor to mean an individual who is under the age of 18 years.s 103: Am 2018 No 33, Sch 5.9 [2].
104 Effect of Part on other rights
(1) Nothing in this Part affects any other rights (whether conferred by statute or otherwise) that a public health organisation may have in relation to a visiting practitioner who—(a) fails to disclose the fact of being charged with committing, or of being convicted of, a serious sex or violence offence, or(b) is charged with committing, or who has been convicted of, a serious sex or violence offence, or(c) fails to disclose the fact of having a finding of unsatisfactory professional conduct or professional misconduct made against the practitioner, or(d) has a finding of unsatisfactory professional conduct or professional misconduct made against the practitioner.(2) Nothing in this Part affects the operation of the Criminal Records Act 1991 in relation to spent convictions within the meaning of that Act.Note—Section 22 of the Health Administration Act 1982 makes it an offence for a person to disclose any information obtained in connection with the administration or execution of that Act or any other Act conferring or imposing functions on the Health Secretary, except in the circumstances specified in that section.
Part 4 Appeals concerning appointment decisions
105 Public health organisation to notify visiting practitioners of certain decisions
(cf PH Act s 33H)
(1) If a public health organisation—(a) reduces any clinical privileges of a person appointed as a visiting practitioner that have previously been granted, or(b) does not re-appoint a person as a visiting practitioner, orit must give notice in writing to the person of its decision (and the reasons for the decision) within 14 days of the date of the making of the decision.(c) suspends or terminates the appointment of a person as a visiting practitioner,(2) In this Part, clinical privileges means the kind of clinical work (subject to any restrictions) that the public health organisation determines the visiting practitioner is to be allowed to perform at any of its hospitals.
106 Right of appeal to Minister
(cf PH Act s 33I)
(1) A person who is dissatisfied with a decision of a public health organisation referred to in section 105 (1) concerning the person may appeal to the Minister against that decision.(2) However, a person cannot appeal to the Minister in relation to any of the following decisions—(a) a decision by a public health organisation not to re-appoint the person as a visiting practitioner if the organisation has ceased to offer appointments of the kind to which the person seeks re-appointment,(b) a decision by a public health organisation reducing the clinical privileges of a person if the decision is based on grounds other than the lack of professional competence of the person,(c) a decision by a public health organisation not to re-appoint a visiting practitioner (or a decision to terminate the appointment of a visiting practitioner) if—(i) the decision is based on the fact that the practitioner has been convicted of a serious sex or violence offence in respect of a minor, and(ii) the offence committed involves sexual activity or sexual touching or a sexual act with, or in relation to the minor,(d) a decision by a public health organisation not to re-appoint a visiting practitioner (or a decision to terminate the appointment of a visiting practitioner) if the decision is based on the fact that the practitioner has been convicted of a serious sex or violence offence in respect of a patient or client of the practitioner that is committed during the course of his or her practice as a medical practitioner or dentist (whether as a visiting practitioner or otherwise).(3) For the purposes of this section, a failure of a public health organisation to re-appoint a person as a visiting practitioner on or before his or her appointment expires is taken to be a decision not to re-appoint the person.s 106: Am 2018 No 33, Sch 5.9 [3].
107 Notice of appeal to Minister
(cf PH Act s 33J)
(1) An appellant must give notice to the Minister of the grounds of the appellant’s appeal in the form and manner approved by the Minister from time to time.(2) A notice under subsection (1) must be given within 1 month (or within such longer period as the Minister may allow) of the following dates—(a) if a public health organisation makes a decision referred to in section 105 (1)—the date on which the public health organisation notified the appellant under that subsection of the reasons for its decision, or(b) if a public health organisation is taken to have made a decision under section 106 (3)—the date on which the appointment of the visiting practitioner concerned expires.
108 Constitution of Committee of Review
(cf PH Act s 33K)
(1) On receipt of a notice under section 107, the Minister must appoint a Committee of Review to determine the appeal.(2) A Committee of Review is to be constituted by—(a) an Australian lawyer of at least 7 years standing (who is also to be appointed as the Chairperson of the Committee), and(b) if the appellant is a medical practitioner—1 person nominated by the Association who is a medical practitioner, and(c) if the appellant is a dentist—1 person nominated by the Australian Dental Association, New South Wales Branch who is a dentist, and(c1) a person appointed by the Minister who—(i) in the Minister’s opinion, is conversant with the interests of patients as consumers of health services provided by the public health system, and(ii) is not, and has never been, a medical practitioner or a dentist, and(d) 1 other person appointed in accordance with subsection (4).(3) A person must not be appointed under subsection (2) (b) or (c) unless the Minister is satisfied that the person nominated is sufficiently experienced in the administration of health services within the public health system to warrant being appointed.(4) A person may be appointed under subsection (2) (d) only if—(a) the Minister is satisfied that the person appointed is sufficiently experienced in the administration of health services within the public health system to warrant being appointed, and(b) if the decision being appealed relates to a lack of professional standards or competence—the person appointed is a medical practitioner (if the appellant is a medical practitioner) or a dentist (if the appellant is a dentist).(5) If the Association or the Australian Dental Association, New South Wales Branch fails to nominate a person for appointment to the Committee within such time as may be notified by the Minister, the Minister may nominate a person who is eligible to be nominated by either Association under subsection (2).(6) A decision of the Minister as to whether a Committee should be constituted as provided by subsection (4) is final.s 108: Am 1998 No 54, Sch 1.10 [1] [2]; 2006 No 30, Sch 9.6; 2018 No 73, Sch 4 [1].
109 Date and place of hearing
(cf PH Act s 33L)
The Chairperson of the Committee—(a) is to fix a date and a place for the hearing of the appeal, and(b) must give 14 days’ notice of those details to the parties to the proceedings.
110 Right of appearance
(cf PH Act s 33M)
(1) In any proceedings before a Committee, a party to the proceedings may appear in person or by an agent. However, no party is to be represented by an Australian legal practitioner except with the consent of all parties and by leave of the Committee.(2) The proceedings may, at the discretion of the Committee, be conducted wholly or partly in private.s 110: Am 2005 No 98, Sch 3.30 [1].
111 Powers of and procedure before a Committee
(cf PH Act s 33N)
(1) A Committee has, for the purposes of the appeal, the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923 on a commissioner and the chairperson of a commission respectively, appointed under Division 1 of Part 2 of that Act. That Act (Division 2 of Part 2 excepted) applies to any witness summoned by or appearing before a Committee in the same way as it applies to any witness summoned by or appearing before a commission.(2) The decision of the Chairperson of the Committee on any question of law or procedure that may arise before a Committee is taken to be the decision of the Committee.(3) Except as provided by subsection (2), a decision supported by a majority of the Committee is the decision of the Committee.(4) If 2 members support a proposed decision and 2 members oppose the proposed decision, the Chairperson has a second or casting vote.s 111: Am 2018 No 73, Sch 4 [2].
112 Determination of appeal
(cf PH Act s 33O)
(1) Subject to this Part and the regulations, a Committee must determine the appeal and may make such orders with respect to the matter being appealed as the Committee considers proper.(1A) Following its determination of an appeal, if a Committee considers on reasonable grounds that—(a) serious concerns exist in relation to the performance or competence of the appellant, or(b) the appellant has engaged in conduct that may constitute professional misconduct or unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW), or(c) the appellant may have an impairment under the Health Practitioner Regulation National Law (NSW),the Chairperson of the Committee may refer the matter to the Medical Council of New South Wales (in the case of a medical practitioner) or the Dental Council of New South Wales (in the case of a dentist) to be dealt with as a complaint under Part 8 of the Health Practitioner Regulation National Law (NSW).(d) (Repealed)(2) If a public health organisation refused to re-appoint the appellant because it had appointed persons to all its available relevant positions that it considered to be better applicants, the Committee cannot order the re-appointment of the appellant unless it specifies in the order which one of those other practitioners’ appointments is to be made available to the appellant.(3) The Chairperson of the Committee is to notify the Minister in writing of any order of the Committee made under this section.(4) In this section—relevant position means any position as a visiting practitioner of the public health organisation that is of the kind to which the appellant seeks re-appointment.s 112: Am 2007 No 89, Sch 2.5 [4]; 2010 No 34, Sch 2.27 [8]–[10].
113 Effect and implementation of order
(cf PH Act s 33P)
(1) An order of a Committee under section 112—(a) has force and effect from the date it is made, and(b) is taken to be the final decision of the public health organisation concerned and must be given effect to accordingly.(2) If a Committee makes an order for re-appointment referred to in section 112 (2)—(a) the appointment of any visiting practitioner specified in the order (along with any related service contract) is terminated, and(b) no compensation is payable to the visiting practitioner (or to any party to a related service contract) as a consequence of the termination of the appointment or contract or of a public health organisation giving effect to the order.
Part 5 Effect of Act on agreements with visiting practitioners
114 Application of Act to agreements with visiting practitioners
(cf PH Act s 29T)
(1) This section applies to any agreement between a public health organisation and a visiting practitioner relating to the performance of work by the visiting practitioner for the organisation, regardless of whether or not the agreement also relates to other matters.(2) A provision of this Act (other than Parts 2, 3 and 4 of this Chapter) or a regulation or by-law made under this Act that is inconsistent with any of the rights and obligations under any agreement to which this section applies has (to the extent of the inconsistency) no force or effect in relation to the visiting practitioner concerned.(3) In this section, a reference to an agreement includes a reference to a service contract.
Chapter 9 The NSW Health Service
ch 9, introduction: Rep 2006 No 2, Sch 2 [3].
Part 1 Employment of staff in the NSW Health Service
ch 9, pt 1: Subst 2006 No 2, Sch 2 [27].
115 The NSW Health Service
(1) The NSW Health Service consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown.(1A) Those persons are not employed in the Public Service of New South Wales.(2) This Part does not affect any other means (statutory or otherwise) by which persons may be employed in the service of the Crown.Note—Other ways in which persons are employed in the service of the Crown include employment in the Public Service, the Teaching Service or the Transport Service.s 115: Am 2004 No 92, Sch 2 [16]–[18]. Subst 2006 No 2, Sch 2 [27]. Am 2006 No 94, Sch 3.16 [1]; 2016 No 2, Sch 2 [10] [11].
116 Employment of staff generally
(1) The Government of New South Wales may employ staff under this Part—(a) to enable local health districts and statutory health corporations, and the public hospitals that they control, to exercise their functions, and(b) to enable declared affiliated health organisations to exercise their functions in relation to their recognised establishments and recognised services, and(c) to enable the Health Secretary to exercise his or her functions under Chapter 5A in relation to ambulance services, and(d) to enable the Health Secretary to exercise his or her functions under Part 1A of Chapter 10 in relation to the provision of services to public health organisations and the public hospitals that they control, and(e) to enable the Health Administration Corporation to exercise its functions under this or any other Act, and(f) to enable the Cancer Institute (NSW) to exercise its functions under this or any other Act.(2) The employment of staff in the NSW Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff.(3) The Health Secretary may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the staff employed in the NSW Health Service (except as otherwise provided by subsections (3A)–(3D)).Note—The Health Secretary’s functions under this or any other Act may, under section 21 of the Health Administration Act 1982, be delegated to any person.(3A) A local health district board may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the chief executive of the local health district.(3B) The chief executive of a local health district may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the other NSW Health Service senior executives employed to enable the local health district to exercise its functions.(3C) The board of a specialty network governed health corporation may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the chief executive of the health corporation.(3D) The chief executive of a specialty network governed health corporation may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the other NSW Health Service senior executives employed to enable the health corporation to exercise its functions.(4) The Health Secretary may create divisions (however described) of staff in the NSW Health Service.(5) This section does not limit the purposes for which, or the manner in which, staff may be employed in the NSW Health Service.s 116: Am 2004 No 87, Sch 2 [3]–[5]. Subst 2006 No 2, Sch 2 [27]. Am 2012 No 42, Sch 1.14; 2012 No 78, Sch 2.1 [1]; 2016 No 2, Sch 2 [12].
116A Salary, conditions etc of staff employed in the NSW Health Service (other than senior executives)
(1) The Health Secretary may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law.(2) The Health Secretary may give directions to a public health organisation requiring the payment by the organisation, on behalf of the Government of New South Wales, of the salary, wages and other employment-related costs (such as superannuation, workers compensation, public liability insurance and vicarious tortious liability) of those members of the NSW Health Service who are employed under this Part to enable the public health organisation to exercise its functions.(3) The Health Secretary may enter into an agreement with any association or organisation representing a group or class of members of the NSW Health Service with respect to the conditions of employment (including salaries, wages or remuneration) of that group or class. Any such agreement may (subject to Part 2) extend to conditions in respect of the employment of persons convicted of, or charged with, serious sex or violence offences.(4) An agreement under subsection (3) binds all members of staff in the group or class affected by the agreement, and no such member, whether a member of the association or organisation with which the agreement was entered into or not, has any right of appeal against the terms of the agreement.(5) This section does not apply to the conditions of employment of NSW Health Service senior executives under Part 3 of this Chapter. This subsection does not prevent particular conditions of employment under this section from being adopted by reference in the contract of employment of the executives.s 116A: Ins 2006 No 2, Sch 2 [27]. Am 2016 No 2, Sch 2 [13].
116B Special provisions relating to staff employed in connection with declared affiliated health organisations
(1) A person cannot be employed under this Part to enable a declared affiliated health organisation to exercise its functions in connection with its recognised establishments and recognised services unless the affiliated health organisation is satisfied that the person is suitable to carry out duties in connection with the organisation having regard to the health care philosophy of the organisation.(2) Section 56 of the Anti-Discrimination Act 1977 applies in relation to the employment under this Part of staff in connection with a declared affiliated health organisation.s 116B: Ins 2006 No 2, Sch 2 [27].
116C Transfer of staff within the NSW Health Service on ground of redundancy
(1) The Health Secretary may, on the ground of redundancy, direct the transfer of a member of the NSW Health Service (the staff member) from one position in the NSW Health Service to another position in the Service at a salary in accordance with any general determination under section 116A (1), but only if—(a) the Health Secretary is satisfied that—(i) the number of persons who are employed in or in connection with the public health organisation concerned exceeds the number that appears to be necessary for the effective, efficient and economical management of the functions and activities of the organisation, either generally or at a particular location, or(ii) the mix of skills or other expertise of the persons who are employed in or in connection with the public health organisation concerned appears to be unsuitable for the effective, efficient and economical management of the functions and activities of the organisation, either generally or at a particular location, and(b) the Health Secretary is satisfied that the staff member possesses the essential qualifications specified for the other position and the work assigned to the other position is appropriate to the skills and qualifications of the staff member, and(c) if the staff member is to be transferred to a position in connection with a declared affiliated health organisation—the affiliated health organisation has been consulted by the Health Secretary as to the suitability of the staff member to carry out duties in connection with the organisation having regard to the health care philosophy of the organisation.(2) If a staff member refuses a transfer from one position to another under this section, the Health Secretary may, if satisfied that the staff member has no valid reason for so refusing, dismiss the member from the NSW Health Service.(3) No compensation is payable in respect of the dismissal.(4) Nothing in this section affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 or any other statutory right that a member of staff may have in relation to his or her dismissal from the NSW Health Service under this section.(5) Nothing in this section prevents the transfer, under any other law, of members of staff of the NSW Health Service.(6) This section does not apply to NSW Health Service senior executives.s 116C: Ins 2006 No 2, Sch 2 [27]. Am 2016 No 2, Sch 2 [14].
116D Health Secretary may arrange for use of services or facilities outside of NSW Health Service
For the purposes of facilitating the exercising of functions within the public health system, the Health Secretary may arrange for the use of the services of any staff (including by way of secondment to the NSW Health Service) or facilities of any government sector agency (within the meaning of the Government Sector Employment Act 2013) or of a public or local authority.s 116D: Ins 2006 No 2, Sch 2 [27]. Am 2016 No 2, Sch 2 [15].
116E Obligations of declared affiliated health organisations under certain legislation
(1) For the purposes of the Work Health and Safety Act 2011, a declared affiliated health organisation has, in respect of the staff employed in the NSW Health Service to enable the organisation to exercise its functions, the functions and liabilities of the person conducting the business or undertaking conducted by a recognised establishment or recognised service of the organisation.(2) A reference in the Anti-Discrimination Act 1977 to an employer in relation to employment in the NSW Health Service in connection with a declared affiliated health organisation and its recognised establishments and recognised services is taken to be a reference to the declared affiliated health organisation.s 116E: Ins 2006 No 2, Sch 2 [27]. Am 2011 No 67, Sch 4.12.
116F Operation of privacy legislation
If any staff are employed under this Part in the NSW Health Service to enable a public health organisation to exercise its functions, the staff are (however described) taken, for the purposes of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002, to be part of the public health organisation.s 116F: Ins 2006 No 2, Sch 2 [27].
116G Miscellaneous provisions relating to civil liability
(1) A reference in this section to a public health organisation does not include a reference to an affiliated health organisation unless it is a declared affiliated health organisation.(2) Part 5 of the Workers Compensation Act 1987 applies to work injury damages recoverable from the Government of New South Wales, and to work injury damages recoverable from a public health organisation, by or in respect of a person employed in the NSW Health Service to enable the public health organisation to exercise its functions. That Part so applies as if the public health organisation—(a) were an employer of the person in addition to the Government, and(b) were an employer liable to pay compensation under that Act.(3) A policy of insurance may be issued to the Government of New South Wales under the Workers Compensation Act 1987 that is limited to workers employed in connection with a particular public health organisation.(4) If—(a) a person is employed in the NSW Health Service to enable a public health organisation to exercise its functions, and(b) the Government of New South Wales is, as the person’s employer, proceeded against for any negligence or other tort of the person (whether the damages are recoverable in an action for tort or breach of contract or in any other action), andthe Government is subrogated to the rights of the public health organisation under that policy in respect of the liability incurred by the Government arising from that negligence or other tort.(c) the public health organisation is entitled under a policy of insurance or indemnity to be indemnified in respect of liability that the organisation may incur in respect of that negligence or other tort,(5) For the purposes of Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996—(a) if a person who is member of the NSW Health Service is appointed (otherwise than on an acting basis) to another position in the NSW Health Service in connection with a different public health organisation or a different division of that Service, the person is taken to have entered into a new contract of employment in respect of that other position, and(b) the cessation of a person’s appointment (whether by way of dismissal, resignation, transfer or otherwise) to a position in the NSW Health Service is taken to terminate the person’s contract of employment in respect of that position.(6) However, a person who holds an appointment to a position that is abolished does not, for the purposes of subsection (5) (b), cease to be appointed to that position until—(a) such time as the person is appointed to another position in the NSW Health Service, orwhichever occurs first.(b) such time as the person’s employment in the NSW Health Service is terminated,(6A) Subsections (5) and (6) do not apply in relation to NSW Health Service senior executives.(7) In this section—work injury damages means damages recoverable from a public health organisation or the Government of New South Wales in respect of injury to or the death of a person employed in the NSW Health Service to enable the public health organisation to exercise its functions caused by the negligence or other tort of the public health organisation or the Government and arising out of the employment of the person by the Government, whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages to which Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017 applies.s 116G: Ins 2006 No 2, Sch 2 [27]. Am 2016 No 2, Sch 2 [16]; 2017 No 10, Sch 5.5.
116H Role of Health Secretary in industrial proceedings
(1) The Health Secretary is, for the purposes of any proceedings relating to a member of the NSW Health Service held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of that member.(2) In this section, industrial matters has the same meaning as in the Industrial Relations Act 1996.s 116H: Ins 2016 No 45, Sch 2 [8].
Part 2 Criminal and disciplinary matters concerning staff of NSW Health Service
ch 9, pt 2, hdg: Am 2006 No 2, Sch 2 [28].
117AA Definitions
In this Part—member of staff means a member of the NSW Health Service who is employed under Part 1 of this Chapter to enable a public health organisation to exercise its functions.s 117AA: Ins 2006 No 2, Sch 2 [29].
117 Duty to report certain criminal conduct and disciplinary matters
(1) A member of staff who is charged with having committed, or is convicted of, a serious sex or violence offence must, within 7 days of the charge being laid or conviction, report that fact in writing to the chief executive of the relevant organisation.Note—The term serious sex or violence offence is defined in the Dictionary to mean an offence involving sexual activity, sexual touching or a sexual act, physical violence or the threat of physical violence that—(a) if committed in New South Wales, is punishable by imprisonment for 12 months or more, or(b) if committed elsewhere than in New South Wales, would have been an offence punishable by imprisonment for 12 months or more if committed in New South Wales.(2) A member of staff who has a misconduct finding made against him or her under the Health Practitioner Regulation National Law (NSW) must, within 7 days of receiving notice of the finding—(a) report that fact to the chief executive of the relevant organisation, and(b) provide the chief executive with a copy of that finding.(3) In this section—chief executive of the relevant organisation, in relation to a member of staff, means the chief executive of the public health organisation to which the member of staff has been assigned.misconduct finding includes a finding of professional misconduct or unsatisfactory professional conduct.Note—Section 142 of the Health Practitioner Regulation National Law (NSW) imposes obligations on employers to notify the Australian Health Practitioner Regulation Agency of misconduct by health practitioners.s 117: Am 1998 No 120, Sch 1.21 [1] [2]; 1999 No 94, Sch 4.114; 2003 No 45, Sch 2.6; 2006 No 2, Sch 2 [30]–[34]; 2006 No 59, Sch 7.7; 2010 No 34, Sch 2.27 [11]–[13]; 2017 No 50, Sch 3 [2]; 2018 No 33, Sch 5.9 [4].
117A Duty of chief executive to report certain conduct
(1) The chief executive of a public health organisation is to report the conduct of a member of staff of the organisation to a Council established (under section 41B of the Health Practitioner Regulation National Law (NSW)) for a health profession if—(a) the member of staff is a health practitioner in that health profession, and(b) the chief executive suspects on reasonable grounds that the conduct may constitute professional misconduct or unsatisfactory professional conduct under that Law.(2) For the purposes of this section, the Ambulance Service of NSW is taken to be a public health organisation.(3) If a chief executive is required to report the same conduct under this section and under section 142 of the Health Practitioner Regulation National Law (NSW), compliance with either section, or with alternative reporting requirements approved by the Health Secretary, satisfies the requirements of both sections.(4) A report made because of a requirement under this section is taken to be a complaint both for the purposes of Part 8 of the Health Practitioner Regulation National Law (NSW) and for the purposes of the Health Care Complaints Act 1993 (including sections 96 and 98 of that Act).s 117A: Ins 2004 No 98, Sch 4.3 [2]. Am 2005 No 98, Sch 2.29; 2006 No 2, Sch 2 [35]; 2010 No 34, Sch 2.27 [14]–[16]. Subst 2017 No 50, Sch 3 [3]. Am 2018 No 73, Sch 4 [3].
118 Disciplinary action in certain cases of serious sex or violence offences
(1) The chief executive of a public health organisation is, within 30 days (or such further period as may be agreed to by the Health Secretary) of becoming aware that a member of staff has been convicted (whether before or during his or her employment) of a serious sex or violence offence, to notify the Health Secretary of the staff member’s conviction.(2) On being notified under subsection (1), the Health Secretary is to afford the member of staff concerned a reasonable opportunity to make written submissions concerning any matter relevant to the conviction that the staff member wishes to have considered in determining what (if any) disciplinary action should be taken in relation to the staff member.(3) The Health Secretary may take such disciplinary action as the Health Secretary considers appropriate (having regard to section 119) against a member of staff who has been convicted (whether before or during his or her employment) of a serious sex or violence offence.(3A) The Health Secretary is, in the case of a member of staff who is a NSW Health Service senior executive, authorised to take any such action regardless of whether the Health Secretary exercises employer functions in relation to the executive.(3B) If, under this section, a member of staff who is a NSW Health Service senior executive is assigned to or from a division of the NSW Health Service for which the Health Secretary does not exercise employer functions in relation to the Health Service senior executives employed in that division, the Health Secretary is to consult the person or body that exercises or will exercise employer functions in relation to the executive.(3C) A person may not, under this section—(a) be transferred and assigned to the role of chief executive of a local health district or specialty network governed health corporation without the concurrence of the board of the local health district or specialty network governed health corporation to which the person is transferred, or(b) in the case of a person who is the chief executive of a local health district or specialty network governed health corporation—be assigned to another role unless the Health Secretary has consulted the board of the local health district or the specialty network governed health corporation (as the case requires).(4) This section does not apply to a conviction that occurred before a person was employed if, before that employment, the person notified the Health Secretary in writing of the fact of the conviction.(5) This section extends to a conviction that occurred before the commencement of this section (as substituted by the Public Sector Employment Legislation Amendment Act 2006).(6) In this section—disciplinary action means—(a) dismissal from the NSW Health Service, or(b) imposing conditions in respect of the supervision of, or reporting by, a member of staff or in respect of the scope of a staff member’s duties, or(c) transferring a member of staff who is not a NSW Health Service senior executive to another position in the NSW Health Service or assigning a member of staff who is a NSW Health Service senior executive to another role in the NSW Health Service.s 118: Subst 2006 No 2, Sch 2 [36]. Am 2016 No 2, Sch 2 [17] [18].
119 Protection of patients, clients and children to be paramount consideration
The protection of a public health organisation’s patients and clients and of children for which it is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a member of staff under this Part.s 119: Am 2006 No 2, Sch 2 [34].
120 No compensation for termination of employment
No compensation (whether for breach of contract or otherwise) is payable in respect of the termination of the employment of a member of staff under this Part.s 120: Am 2006 No 2, Sch 2 [34].
120A Suspension of members of staff from duty pending decision in relation to misconduct or serious criminal charge
(1) If—(a) the registration of a member of staff as a registered health practitioner is suspended under section 150 of the Health Practitioner Regulation National Law (NSW), or(b) conditions are imposed on the registration of a member of staff as a registered health practitioner under section 150 (1) (b) of that Law that, in the opinion of the Health Secretary, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(c) an interim prohibition order is made in respect of a member of staff under section 41AA of the Health Care Complaints Act 1993 that prohibits the staff member from providing health services or specified health services, or(d) an interim prohibition order is made in respect of a member of staff under section 41AA of that Act that places conditions on the provision of health services or specified health services by the staff member that, in the opinion of the Health Secretary, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, orthe Health Secretary may suspend the member of staff from duty until the suspension, interim prohibition order or conditions have been removed or expire or the criminal charge has been dealt with.(e) a member of staff is charged with having committed a serious criminal offence,(2) Any salary payable to a person as a member of staff while the person is suspended from duty under this section is (if the Health Secretary so directs) to be withheld.(3) If—(a) the registration of the member of staff as a registered health practitioner is cancelled or suspended under section 149C of the Health Practitioner Regulation National Law (NSW), or(b) conditions are imposed on the registration of the member of staff as a registered health practitioner under section 149A (1) (b) of that Law that, in the opinion of the Health Secretary, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(c) a prohibition order is made in respect of the member of staff under section 41A of the Health Care Complaints Act 1993 that prohibits the staff member from providing health services or specified health services, or(d) a prohibition order is made in respect of the member of staff under section 41A of that Act that places conditions on the provision of health services or specified health services by the staff member that, in the opinion of the Health Secretary, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, orthe salary withheld under subsection (2) is forfeited to the State unless the Health Secretary otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed.(e) the person is convicted of the offence concerned,(4) If, at the time that the relevant suspension, interim prohibition order or conditions referred to in subsection (1) (a)–(d) are removed or expire, action referred to in subsection (3) (a)–(d) is not taken in relation to the member of staff, the salary withheld under subsection (2) is to be paid to that member of staff unless the Health Secretary directs that the salary is to be forfeited to the State (other than any salary that was due to the person in respect of a period before the suspension was imposed).(5) If the Health Secretary has suspended a member of staff from duty under this section, the Health Secretary may at any time remove the suspension.(6) Nothing in this section prevents the Health Secretary from suspending a member of staff under any other provision of this Act or any other law (with or without pay) or from taking any other action against a member of staff under this Part.(7) In this section—salary does not include any payment in connection with sick leave, recreation leave or any other leave.serious criminal offence means an offence committed in New South Wales that is punishable by imprisonment for 5 years or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable.s 120A: Ins 2013 No 24, Sch 4. Am 2016 No 2, Sch 2 [19].
121 Effect of Part
(1) (Repealed)(2) Nothing in this Part affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 or any other statutory right that a member of staff may have in relation to the termination of his or her employment under this Part. However, in exercising its functions under that Part, the Industrial Relations Commission is to have regard to section 119 of this Act.Note—Part 6 of Chapter 2 of the Industrial Relations Act 1996 enables certain employees specified in section 83 of that Act to make an application to the Industrial Relations Commission in respect of a claim that his or her dismissal or threatened dismissal from employment has been or will be harsh, unreasonable or unjust.(3) Nothing in this Part affects the operation of the Criminal Records Act 1991 in relation to spent convictions within the meaning of that Act.Note—Section 22 of the Health Administration Act 1982 makes it an offence for a person to disclose any information obtained in connection with the administration or execution of that Act or any other Act conferring or imposing functions on the Health Secretary, except in the circumstances specified in that section.s 121: Am 2006 No 2, Sch 2 [34] [37] [38].
Part 3 NSW Health Service senior executives
ch 9, pt 3: Ins 2004 No 92, Sch 1 [27]. Subst 2016 No 2, Sch 2 [20].
ch 9, pt 3, div 1: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
121A NSW Health Service senior executives
(1) Persons who are employed in the NSW Health Service in a Public Service senior executive band are NSW Health Service senior executives. For that purpose, the Public Service senior executive bands under the Government Sector Employment Act 2013 apply to employment in the NSW Health Service.(2) The following chief executives are to be employed as NSW Health Service senior executives—(a) chief executives of local health districts,(b) chief executives of specialty network governed health corporations,(c) the chief executive of the Ambulance Service of NSW.Note—See section 23 (2) in the case of the chief executive of a local health district, section 52G (1A) in the case of the chief executive of a specialty network governed health corporation and section 67A (3) in the case of the chief executive of the Ambulance Service.(3) The chief executive of a statutory health corporation (other than a specialty network governed health corporation) may, but need not, be employed as a NSW Health Service senior executive.(4) Persons who are employed under Part 4 of the Government Sector Employment Act 2013 and assigned to roles to enable a Council established under section 41B of the Health Practitioner Regulation National Law (NSW) to exercise its functions may be designated by the Health Secretary as NSW Health Service senior executives. Any such person, if so designated, ceases to be employed under the Government Sector Employment Act 2013 and becomes employed in the NSW Health Service as a NSW Health Service senior executive.s 121A: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39]. Subst 2016 No 2, Sch 2 [20].ch 9, pt 3, div 2: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
121B Employer of senior executives
For the purposes of this Part, the person who is authorised to exercise the employer functions of the Government of New South Wales in relation to a NSW Health Service senior executive is referred to in this Part as the employer of the executive.Note—The Health Secretary is the employer of Health Service senior executives, except that—(a) the employer of the chief executive of a local health district or of a specialty network governed health corporation is the board of the district or corporation, and(b) the employer of the other senior executives of any such district or corporation is the chief executive of the district or corporation.s 121B: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [40] [41]. Subst 2016 No 2, Sch 2 [20].ch 9, pt 3, div 3: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
121C Kinds of employment
(1) Employment as a NSW Health Service senior executive may be any one of the following kinds of employment—(a) ongoing employment,(b) term employment.(2) Ongoing employment is employment that continues until the executive resigns or his or her employment is terminated.(3) Term employment is employment for a specified period or for the duration of a specified task (unless the executive sooner resigns or his or her employment is terminated).s 121C: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39]. Subst 2016 No 2, Sch 2 [20].
121D Employment in bands and assignment to roles
(1) A NSW Health Service senior executive is to be employed in the Public Service senior executive band that the employer of the executive considers appropriate for the role of the executive.(2) In determining the number of NSW Health Service senior executives and the appropriate band in which they are employed, the employer is to apply the applicable work level standards and have regard to any guidance provided by the Public Service Commissioner.(3) In the case of a local health district or specialty network governed health corporation, the number of NSW Health Service senior executives, the bands in which they are employed and the roles they perform are required to be approved by the Health Secretary.(4) A NSW Health Service senior executive may, from time to time, be assigned to a role in any division of the NSW Health Service in the band in which the executive is employed.(5) A NSW Health Service senior executive may be assigned to a role (in the band in which the executive is employed) by the employer of the executive within the relevant division of the NSW Health Service for which the employer exercises employer functions.(6) A NSW Health Service senior executive employed in a division of the NSW Health Service may, subject to this section, be assigned to a role (in the band in which the executive is employed) by the Health Secretary in another division of the NSW Health Service.(7) If a NSW Health Service senior executive is assigned to a role in or from a division of the NSW Health Service for which the Health Secretary does not exercise employer functions in relation to the Health Service senior executives employed in that division, the Health Secretary is to consult the person or body that exercises or will exercise employer functions in relation to the executive.(8) A NSW Health Service senior executive may not be assigned to the role of chief executive of a local health district or specialty network governed health corporation without the concurrence of the board of the local health district or specialty network governed health corporation to which the executive is to be assigned.(9) A NSW Health Service senior executive may—(a) be transferred by the Health Secretary to the Public Service of New South Wales and assigned to a role in any Public Service agency in the band in which the executive is employed (with the agreement of the head of that agency), or(b) be transferred by the Health Secretary to the NSW Police Force and assigned to a role (other than as a police officer) in the band in which the executive is employed (with the agreement of the Commissioner of Police), or(c) be transferred by the Health Secretary to the Transport Service of New South Wales and assigned to a role in the band in which the executive is employed (with the agreement of the Secretary of the Department of Transport).(10) If, under subsection (9) or under a corresponding provision of the Government Sector Employment Act 2013 or other Act, an executive is transferred to or from a division of the NSW Health Service for which the Health Secretary does not exercise employer functions in relation to the Health Service senior executives employed in that division, the Health Secretary is to consult the person or body that exercises or will exercise employer functions in relation to the executive.(11) A person may not, under subsection (9) or under a corresponding provision of the Government Sector Employment Act 2013 or other Act—(a) be transferred and assigned to the role of chief executive of a local health district or specialty network governed health corporation without the concurrence of the board of the local health district or specialty network governed health corporation to which the person is transferred, or(b) in the case of a person who is the chief executive of a local health district or specialty network governed health corporation—be transferred and assigned to another role unless the Health Secretary has consulted the board of the local health district or the specialty network governed health corporation (as the case requires).(12) NSW Health Service senior executives may be assigned to roles under this section to enable the flexible deployment of staff resources and to develop the capabilities of staff.(13) A NSW Health Service senior executive is not to be assigned to a different role under this section unless the executive has been consulted. The remuneration payable to the executive is not to be reduced because of the assignment to the different role without the consent of the executive. This subsection extends to a transfer under subsection (9).(14) In this section—assign to a role includes assign to a different role.s 121D: Ins 2004 No 92, Sch 1 [27]. Subst 2016 No 2, Sch 2 [20].
121E Government sector employment rules and employment directions and conditions
(1) The Public Service Commissioner may make government sector employment rules under section 12 of the Government Sector Employment Act 2013 on any matter relating to the employment of NSW Health Service senior executives (including, without limitation, matters of the kind referred to in section 36 of that Act).(2) The Public Service Commissioner must consult the Health Secretary before making any such rules.(3) This section does not limit any direction, or any condition referred to in section 122 (2), that the Health Secretary is otherwise authorised to give or impose in relation to the employment of NSW Health Service senior executives. However, if any such direction or condition is inconsistent with the applicable government sector employment rules—(a) the direction or condition does not have any effect unless the Public Service Commissioner has agreed to the inconsistency (unless it is a direction or condition referred to in paragraph (b)), or(b) if the direction or condition relates to the health or safety of any person or persons or the provision of essential health services—the Health Secretary is to consult the Public Service Commissioner about the inconsistency (whether before or after the direction or condition is given or attached).ss 121E–121G: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39]. Subst 2016 No 2, Sch 2 [20].
121F Contract of employment
(1) A NSW Health Service senior executive is to be employed under a written contract of employment signed by the executive and by the employer of the executive on behalf of the Government.(2) Without limiting section 121E (1), the government sector employment rules made under section 12 of the Government Sector Employment Act 2013 may prescribe model contracts of employment for NSW Health Service senior executives and may specify any model provisions that are mandatory and that prevail in the event of any inconsistency with the provisions of a contract of employment entered into after the commencement of those mandatory provisions.(3) Subject to this Part, the government sector employment rules and any direction issued by the Public Service Commissioner under the Government Sector Employment Act 2013, a contract of employment of a NSW Health Service senior executive is to deal with the following matters—(a) the band in which the executive is employed,(b) the duration of the contract if the executive is not employed in ongoing employment,(c) the total remuneration package of the executive (comprising monetary remuneration and employment benefits) and any allowances,(d) performance obligations, and reviews of performance, of the executive,(e) progression in the total remuneration package of the executive based on performance,(f) leave and other conditions of employment of the executive,(g) the compensation for any termination of employment of the executive by the Health Secretary or other employer of the executive (including the period to which the compensation relates),(h) any other matter prescribed by the regulations under section 39 (4) of the Government Sector Employment Act 2013.(4) The contract of employment of a NSW Health Service senior executive may, subject to this Act, include conditions of engagement.(5) The contract of employment of a NSW Health Service senior executive does not limit, and is not terminated or otherwise affected by—(a) the transfer of the executive under section 121D (9) to the Public Service of New South Wales, the NSW Police Force or the Transport Service of New South Wales, or(b) the assignment of the executive to a different role or any other change to the title, place of work or duties of the executive.(6) A contract of employment of a NSW Health Service senior executive may, subject to this section, be varied at any time in accordance with the contract or by further agreement.(7) The regulations under the Government Sector Employment Act 2013 may make provision with respect to the compensation to which a NSW Health Service senior executive whose employment is terminated is entitled under his or her contract of employment. Any such regulation cannot reduce the amount of compensation to which a NSW Health Service senior executive is entitled under a contract of employment entered into before the commencement of the regulation.ss 121E–121G: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39]. Subst 2016 No 2, Sch 2 [20].
121G Remuneration, benefits and allowances
(1) The remuneration package of a NSW Health Service senior executive must be within the range determined under the Statutory and Other Offices Remuneration Act 1975 for the band in which the executive is employed, except as provided by subsection (2).Note—See also section 24R (3) of the Statutory and Other Offices Remuneration Act 1975.(2) The Health Secretary may, in accordance with parameters agreed on by the Health Secretary and the Public Service Commissioner, determine a remuneration package for a NSW Health Service senior executive or class of NSW Health Service senior executives that is within a range higher than the range determined under the Statutory and Other Offices Remuneration Act 1975 for the band in which the executive or class of executives is employed.(3) The kinds and value of employment benefits and the allowances for a NSW Health Service senior executive are to be determined by the Health Secretary. In making any such determination, the Health Secretary is to have regard to any similar determinations that apply to Public Service senior executives.(4) A NSW Health Service senior executive is only entitled to the remuneration, employment benefits or allowances provided in the executive’s contract of employment.(5) For the purposes of this section, employment benefits for a NSW Health Service senior executive are—(a) contributions by the executive’s employer to a superannuation scheme or fund of the executive, and(b) other benefits provided to the executive at the cost of the executive’s employer that are of a private nature.ss 121E–121G: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39]. Subst 2016 No 2, Sch 2 [20].
121H Termination of employment
(1) The employer of a NSW Health Service senior executive, or the Health Secretary if the Health Secretary is not the employer, may terminate the employment of the executive at any time, for any or no stated reason and without notice.Note—The termination of employment of a senior executive may also be effected by other means (for example under Part 2 of this Chapter or under section 68 of the Government Sector Employment Act 2013).(2) A NSW Health Service senior executive whose employment is terminated under this section is entitled to such compensation (if any) as may be provided in the contract of employment of the executive (and to no other compensation or entitlement for the termination of employment other than superannuation entitlements).(3) A NSW Health Service senior executive whose employment is so terminated is not to be employed in the public sector during the period specified in the contract of employment to which any such compensation relates unless arrangements have been made for a refund of the proportionate amount of the compensation.(4) The regulations under the Government Sector Employment Act 2013 may make provision relating to the calculation of the proportionate amount of a payment to be refunded under subsection (3).(5) The employer of a NSW Health Service senior executive may not terminate the employment of the executive under this section or section 68 (2) of the Government Sector Employment Act 2013 unless the employer is, or has the concurrence of, the Health Secretary.(6) For the purposes of this section, employment of a former executive in the public sector and public sector have the same meanings as in section 41 of the Government Sector Employment Act 2013.s 121H: Ins 2004 No 92, Sch 1 [27]. Am 2010 No 54, Sch 3.5. Subst 2016 No 2, Sch 2 [20]. Am 2018 No 2, Sch 2 [6].ch 9, pt 3, div 4: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
121I Acting in executive roles
(1) A NSW Health Service senior executive or other employee of the NSW Health Service may be assigned to act in the role of a NSW Health Service senior executive if—(a) the person who is usually assigned to that other role is unavailable for any reason, or(b) there is no person performing duties in that other role for the time being.(2) An assignment to act in the role of a NSW Health Service senior executive under this section may be made—(a) in any case—by the Health Secretary, or(b) in the case of a NSW Health Service senior executive being assigned to act in the role of another such executive—by the employer of the executive assigned to act (but only if the employer is also the employer of the other executive).If the Health Secretary assigns an executive to act in the role of an executive for whom the Health Secretary is not the employer, the Health Secretary is to consult the employer of that executive.(3) While assigned to act in the role of a NSW Health Service senior executive the person has all the functions of the executive, but does not thereby become a NSW Health Service senior executive if not already such an executive.(4) An assignment to act in the role of a NSW Health Service senior executive under this section may be terminated at any time by a person authorised to make the assignment.(5) This Part does not prevent the payment of an applicable allowance to a person when assigned to act in the role of a NSW Health Service senior executive under this section.s 121I: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39] [42]. Subst 2016 No 2, Sch 2 [20].
121J Industrial or legal proceedings excluded
(1) The employment of a NSW Health Service senior executive, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.(2) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of a NSW Health Service senior executive.(3) Any State industrial instrument (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of NSW Health Service senior executives. This subsection does not prevent the provisions of any such industrial instrument being adopted by reference in the conditions of employment of any such executive.(4) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996.(5) In this section, a reference to the employment of a NSW Health Service senior executive is a reference to—(a) the engagement of, or failure to engage, a person as such an executive, or(b) the assignment or re-assignment of the executive to a role in a band, or(c) the removal, retirement, termination of employment or other cessation of employment of the executive, or(d) any disciplinary proceedings or action taken against the executive, or(e) the remuneration or other conditions of employment of the executive.s 121J: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39]; 2011 No 25, Sch 4 [2]. Subst 2016 No 2, Sch 2 [20].
121K Delegation of employer functions
(1) If the employer of a NSW Health Service senior executive is a board, the employer functions of the board under this Chapter in relation to the executive (other than the function of employing or terminating the employment of the executive) may be delegated by the board to the chairperson or any other member of the board.(2) If the employer of a NSW Health Service senior executive is a chief executive, the employer functions of the chief executive under this Chapter in relation to the senior executive may be delegated by the chief executive to any member of the NSW Health Service (other than the senior executive) or to any person employed in the Public Service.s 121K: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39] [42]. Subst 2016 No 2, Sch 2 [20].
121L–121T
s 121L: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39]. Rep 2016 No 2, Sch 2 [20].
ch 9, pt 3, div 5: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
s 121M: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39] [42]. Rep 2016 No 2, Sch 2 [20].
s 121N: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39] [42] [43]. Rep 2016 No 2, Sch 2 [20].
s 121O: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
ch 9, pt 3, div 6: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
s 121P: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39] [44]; 2006 No 94, Sch 3.16 [2]. Rep 2016 No 2, Sch 2 [20].
s 121Q: Ins 2004 No 92, Sch 1 [27]. Am 2005 No 64, Sch 1.21; 2006 No 2, Sch 2 [45]. Rep 2016 No 2, Sch 2 [20].
s 121R: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
s 121S: Ins 2004 No 92, Sch 1 [27]. Am 2006 No 2, Sch 2 [39]. Rep 2016 No 2, Sch 2 [20].
s 121T: Ins 2004 No 92, Sch 1 [27]. Rep 2016 No 2, Sch 2 [20].
Chapter 10 Administration of the public health system
Note—
This Chapter also applies to the Cancer Institute (NSW) as if that body were a statutory health corporation—see section 21A of the Cancer Institute (NSW) Act 2003.
ch 10, note: Ins 2012 No 78, Sch 2.1 [2].
ch 10, introduction: Am 2004 No 87, Sch 2 [6]. Rep 2006 No 2, Sch 2 [3].
Part 1 Administration
122 Functions of the Health Secretary
(cf PH Act s 11 (1) and (2))
(1) The Health Secretary has the following functions under this Act—(a) to facilitate the achievement and maintenance of adequate standards of patient care within public hospitals and in relation to other services provided by the public health system,(b) to facilitate the efficient and economic operation of the public health system consistent with the standards referred to in paragraph (a),(c) to inquire into the administration, management and services of any public health organisation,(c1) to provide governance, oversight and control of the public health system and the statutory health organisations within it,(d) to cause public health organisations (including public hospitals controlled by them) to be inspected from time to time,(e) to recommend to the Minister what sums of money (if any) should be paid from money appropriated from the Consolidated Fund in any financial year to any public health organisation,(f) to enter into performance agreements with public health organisations, to review the results of organisations under such agreements and to report those results (and make recommendations about the results) to the Minister,(f1) to give directions to statutory health organisations, including (subject to section 121E (3)) directions relating to the employment of NSW Health Service senior executives,(g) such other functions as may be conferred or imposed by or under this Act.(2) Without limiting subsection (1) (f1), the Health Secretary may, in exercising any power delegated by the Minister to attach conditions under section 127 (4) to the payment of a subsidy under that section to a statutory health organisation, attach conditions relating to the employment of NSW Health Service senior executives who are employed to enable the statutory health organisation to exercise its functions. Any such condition is subject to section 121E (3).s 122: Am 2010 No 97, Sch 1.1 [23] [24]; 2016 No 2, Sch 2 [21] [22].
123 Inquiries by Health Secretary
(cf PH Act s 11A)
(1) The Health Secretary may inquire into the administration, management and services of any organisation or institution providing health services (other than a public health organisation) if those services are wholly or partly funded with money paid from the Consolidated Fund.(2) However, the Health Secretary cannot make any inquiry under this section in respect of a private health facility or nursing home.(3) The Health Secretary may delegate the conduct of any inquiry under this section to any other person.Note—Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions.(4) Nothing in this section prevents the Health Secretary inquiring into the administration, management and services of any public health organisation under section 122 (c).s 123: Am 2007 No 9, Sch 5.13 [1].
124 Authorised officers
(cf PH Act s 11 (4) and (5))
(1) Appointment of authorised officers The Health Secretary may appoint any person, or class of persons, as an authorised officer or authorised officers to exercise the functions conferred by section 125.(2) Issue of certificates of authority The Health Secretary is to provide an authorised officer with a certificate of authority that—(a) states that it is issued under this Act, and(b) gives the name of the person to whom it is issued, and(c) describes the nature of the functions conferred and the source of those functions, and(d) states the date (if any) on which it expires, and(e) describes the kind of premises to which the functions extend, and(f) bears the signature of the Health Secretary or an officer approved by the Health Secretary for the purposes of this paragraph.(3) Precondition for exercise of functions generally An authorised officer must not exercise the functions conferred by section 125 unless the officer is in possession of a certificate of authority issued by the Health Secretary.(4) Preconditions for exercise of functions in relation to certain non-government health organisations In addition to the requirement in subsection (3), an authorised officer must not exercise the functions conferred by section 125 in relation to the premises of an organisation or institution referred to in section 123 (1) unless the officer—(a) gives reasonable notice to the occupier or owner of the premises of the intention to exercise the function, unless the giving of notice would defeat the purpose for which it is intended to exercise the function, and(b) exercises the function at a reasonable hour of the day, except where it is being exercised in an emergency, and(c) uses no more force than is reasonably necessary, and(d) in relation to premises used for residential purposes—has obtained the consent of the owner or occupier of the premises.(5) Production of certificate of authority In the course of carrying out an inspection under this Act, an authorised officer must, if requested by any person to do so, produce the officer’s certificate of authority.
125 Powers of entry and inspection
(cf PH Act s 11 (6))
(1) Power of entry An authorised officer may enter premises of any public health organisation (including any public hospital controlled by that organisation) or of an organisation or institution referred to in section 123 (1) for the purpose of exercising any function conferred or imposed on the Health Secretary by this Act.(2) Powers following entry An authorised officer who has entered any premises under this section may do any one or more of the following—(a) inspect those premises,(b) make such examination and inquiry as the officer thinks necessary to assist the Health Secretary in the performance of the Health Secretary’s functions under this Act,(c) make copies of, or take extracts or notes from, any accounts, records (including clinical records), books, documents or other things, of a public health organisation or organisation or institution referred to in section 123 (1),(d) for the purpose of further examination, take possession of, and remove, any of those accounts, records, books, documents or other things,(e) require the owner or occupier of the premises to provide the officer with such assistance and facilities as is or are reasonably necessary to enable the officer to exercise functions under this section,(f) require any person in or about the premises to answer questions or otherwise furnish information,(g) require any person to produce any accounts, records (including clinical records), books, documents or other things in the possession or under the control of the person that relate to, or that the officer believes on reasonable grounds relate to, the operation or administration of a public health organisation.(3) Liability for damage to premises of certain organisations and institutions If damage is caused by the exercise of functions conferred by this section to premises of an organisation or institution referred to in section 123 (1), the Minister is to pay reasonable compensation for the damage unless the exercise of the functions was obstructed by the occupier of the premises.
126 Health Secretary may enter into performance agreement with a public health organisation
(1) The Health Secretary may enter into a performance agreement with any public health organisation.(2) A performance agreement may—(a) include the provisions of a service agreement (within the meaning of the National Health Reform Agreement) for the organisation, and(b) set operational performance targets for the organisation in the exercise of specified functions during a specified period, and(c) provide for the evaluation and review of results in relation to those targets, and(d) provide for the provision of such data or other information by a public health organisation concerning the exercise of its functions that the State determines is required to comply with the State’s performance reporting obligations under the National Health Reform Agreement.(3) The public health organisation must, as far as practicable, exercise its functions in accordance with the performance agreement.(4) The public health organisation is to report the results of the organisation’s performance under a performance agreement during a financial year to the Health Secretary within 3 months of the end of that year.(5) The Health Secretary—(a) is to evaluate and review the results of the organisation’s performance for each financial year under the performance agreement and to report those results to the Minister, and(b) may make such recommendations to the Minister concerning those results as the Health Secretary thinks fit.s 126: Am 2010 No 97, Sch 1.1 [25]; 2012 No 36, Sch 1 [1].
Part 1A Provision of services
ch 10, pt 1A, hdg: Ins 2004 No 87, Sch 2 [7]. Am 2010 No 97, Sch 1.2 [5].
ch 10, pt 1A: Ins 2004 No 87, Sch 2 [7].
126A (Repealed)
s 126A: Ins 2004 No 87, Sch 2 [7]. Rep 2006 No 2, Sch 2 [46].
126B Health Secretary to provide certain services
(1) The Health Secretary may provide services for any or both of the following purposes—(a) to support the public health system and public health organisations and the public hospitals they control,(b) to enable the co-ordinated provision of health services involving more than one public health organisation or on a State-wide basis.(2) The Health Secretary may also, with the approval of the Minister, make and enter into contracts or agreements with any person other than a public health organisation for the provision of health support services or corporate or other services to that person.(3) The Health Secretary may determine the fees and charges payable for any service provided by or on behalf of the Health Secretary under this section.(4) The Health Secretary may delegate his or her functions under this section to a person or appointed body.(5) A delegate may subdelegate to any person or appointed body some or all of any function delegated under this section if the delegate is authorised in writing to do so by the delegator.(6) Section 21 of the Health Administration Act 1982 does not apply in relation to the functions under this section.(7) Nothing in this section limits the Health Secretary’s functions under this or any other Act or law.(8) In this section—appointed body means a committee, board or other body appointed under section 126C by the Health Secretary.s 126B: Ins 2004 No 87, Sch 2 [7]. Subst 2006 No 2, Sch 2 [47]. Am 2010 No 97, Sch 1.1 [26].
126C Appointed bodies
(1) The Health Secretary may appoint a committee, board or other body for the purposes of this Part.(2) An appointed body is to consist of such members appointed by the Health Secretary as the Health Secretary thinks fit.(3) The procedure of an appointed body is to be determined by the Health Secretary or (subject to any determination of the Health Secretary) by the appointed body.(4) A member of an appointed body holds office for such period (not exceeding 5 years) as is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.(5) The Health Secretary may terminate the appointment of a member of an appointed body at any time for any or no reason by notice in writing to the member.(6) A member of an appointed body is entitled to such fees and allowances as the Health Secretary may determine from time to time.(7) A member of an appointed body is not personally liable for any act or omission done or omitted to be done in good faith for the purposes of this Part.(8) If subsection (7) prevents liability attaching to a member of an appointed body, the liability attaches instead to the Health Secretary.s 126C: Ins 2004 No 87, Sch 2 [7]. Am 2006 No 2, Sch 2 [42] [48].
126D–126F (Repealed)
ss 126D–126F: Ins 2004 No 87, Sch 2 [7]. Rep 2006 No 2, Sch 2 [49].
126G Directions by Minister in relation to acquisition of services
(1) The Minister may, by order in writing, from time to time—(a) require a public health organisation to acquire specified services from the Health Secretary or some other specified person if and when such services are required, and(b) give a public health organisation any necessary directions for the purposes of paragraph (a).(2) The following conduct is specifically authorised by this Act for the purposes of the Competition and Consumer Act 2010 of the Commonwealth and the Competition Code of New South Wales—(a) a requirement or direction of the Minister given under subsection (1),(b) the entering or making of a contract, agreement, arrangement or understanding as the result of such a requirement or direction,(c) conduct authorised or required by or under the terms or conditions of any such contract, agreement, arrangement or understanding,(d) any conduct of the Health Secretary in carrying out the Health Secretary’s functions or exercising the Health Secretary’s powers under this Part,(e) any conduct of a public health organisation, its agents, a person concerned in the management of the organisation or a person who is engaged or employed by the organisation—(i) in relation to obtaining services in accordance with this Part, or(ii) in complying with a requirement or direction of the Minister given under subsection (1).(3) Conduct authorised by subsection (2) is authorised only to the extent (if any) that it would otherwise contravene Part IV of the Competition and Consumer Act 2010 of the Commonwealth and the Competition Code of New South Wales.s 126G: Ins 2004 No 87, Sch 2 [7]. Am 2006 No 2, Sch 2 [42] [50]; 2010 No 97, Sch 1.1 [27] [28]; 2012 No 42, Sch 2.17 [1].
126H Consent of affiliated health organisations required for certain orders
(1) (Repealed)(2) The Minister may not make an order under section 126G (1) that requires or directs an affiliated health organisation to do, or omit to do, anything unless the Minister has obtained the written consent of the organisation to the requirement or direction.s 126H: Ins 2004 No 87, Sch 2 [7]. Am 2006 No 2, Sch 2 [51].
Part 2 Finance
126I Health funding arrangements under the National Health Reform Agreement
Schedule 6A contains provisions relating to health funding arrangements under the National Health Reform Agreement.s 126I: Ins 2012 No 36, Sch 1 [2].
127 Determination of subsidies
(cf PH Act s 17)
(1) In determining what amount of money (if any) is to be paid to each local health district out of money appropriated from the Consolidated Fund, the Minister is to have regard to the following matters—(a) the size and health needs of the population resident within the area of the local health district concerned,(b) the health services provided to patients from outside the area of the local health district concerned,(c) the net receipts and expenditures of the local health district for the financial year,(d) probable requirements for capital maintenance and expenditure of the local health district for the financial year,(e) such other matters as are prescribed by the regulations or as the Minister thinks fit.(2) In determining what amount of money (if any) is to be paid to each statutory health corporation and affiliated health organisation out of money appropriated from the Consolidated Fund, the Minister may have regard to such matters as the Minister thinks fit.(2A) In making a determination under this section, the Minister is also to have regard to the National Health Reform Agreement.(3) The Minister may, after considering any recommendation made under section 122 (e) for the purpose, determine what amounts of money (if any) should be paid out of money appropriated from the Consolidated Fund in any financial year to any such local health district, statutory health corporation or affiliated health organisation. Any such amount is payable in accordance with that determination.(3A) The Minister may vary a determination under subsection (3) in such circumstances as the Minister considers appropriate.(4) The Minister may attach to the payment of any subsidy (or part of any subsidy) such conditions as the Minister determines from time to time.(5) If any such condition is breached, the Health Secretary may make such recommendations to the Minister as the Health Secretary thinks fit concerning any action to be taken against the public health organisation concerned or any officer or employee of the organisation.(6) This section does not affect the operation of the provisions relating to health funding arrangements under the National Health Reform Agreement set out in Schedule 6A.s 127: Am 1999 No 76, Sch 9 [3]; 2006 No 2, Sch 2 [52]; 2012 No 36, Sch 1 [3] [4].
127A Deferral of payment of subsidy
The Minister may determine that payment of the whole or any part of an amount payable under section 127 in a financial year is to be deferred until a subsequent financial year. Payment is deferred in accordance with such a determination.s 127A: Ins 1999 No 76, Sch 9 [4].
127B Loans to public health organisations
(1) The Minister may determine that an amount of money is to be lent to a local health district, statutory health corporation or affiliated health organisation, out of money appropriated from the Consolidated Fund to the Minister.(2) Any such amount is to be lent in accordance with that determination and on such terms and conditions as the Minister determines.(3) The loans made pursuant to subsection (1) must not result in expenditure in excess of forward estimates.(4) Part 6 of the Government Sector Finance Act 2018 does not apply to a loan made under this section.s 127B: Ins 1999 No 76, Sch 9 [4]. Am 2018 No 70, Sch 3.31 [3].
128 Agreement by affiliated health organisation to repay sums
(cf PH Act s 17A)
(1) Before paying any sum to an affiliated health organisation out of money appropriated from the Consolidated Fund, the Minister may require—(a) the affiliated health organisation, orto enter into an agreement with the Minister under this section.(b) if the property of the affiliated health organisation is not vested in the affiliated health organisation—(i) the persons in whom the property is vested, or(ii) those persons and the affiliated health organisation,(2) An agreement entered into under this section must make provision for or with respect to requiring—(a) the repayment to the Minister, in the circumstances specified in, or to be determined in accordance with, the agreement of the sum referred to in subsection (1), or(b) the payment to the Minister, in the circumstances specified in, or to be determined in accordance with, the agreement of such other sum (whether lesser or greater than the sum referred to in subsection (1)) as is specified in, or is to be determined in accordance with, the agreement.(3) A breach of trust does not occur only because the trustees of an affiliated health organisation have—(a) entered into an agreement under this section, or(b) repaid or paid to the Minister any sum in accordance with the agreement, or(c) done or performed any act or thing necessary or convenient to be done or performed for the purpose of enabling them to enter into such an agreement or repay or pay such a sum.
129 Funding of recognised establishments and recognised services of affiliated health organisations
The Minister may delegate to any local health district the function of determining—(a) the subsidy (if any) to be received by any affiliated health organisation for its recognised establishments and recognised services, and(b) the conditions (if any) that should attach to that subsidy.Note—Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions.
130 Performance agreements between local health districts and affiliated health organisations they subsidise
(1) A local health district exercising a function delegated under section 129 in respect of an affiliated health organisation may enter into a performance agreement with the affiliated health organisation in respect of its recognised establishments and recognised services.(2) A performance agreement—(a) may set operational performance targets for the affiliated health organisation in the exercise of specified functions in relation to the health services concerned during a specified period, and(b) may provide for the evaluation and review of results in relation to those targets.(3) The affiliated health organisation must, as far as practicable, exercise its functions in accordance with the performance agreement.(4) The affiliated health organisation is to report the results of the organisation’s performance under a performance agreement during a financial year to the local health district within 3 months of the end of that year.(5) The local health district is to evaluate and review the results of the organisation’s performance for each financial year under the performance agreement and to report those results to the Health Secretary.(6) The Health Secretary may make such recommendations to the Minister concerning the results reported to the Health Secretary under subsection (5) as the Health Secretary thinks fit.
Part 3 Transfer of hospitals, health institutions, services and property
131 Transfer of hospitals, health institutions, services and property between statutory health organisations
(cf AHS Act s 21)
(1) The Governor may, by order published on the NSW legislation website, transfer to any statutory health organisation—(a) any public hospital or health institution under the control of another statutory health organisation, or(b) any health service or health support service under the control of another statutory health organisation, or(c) any public hospital or health service controlled by the Crown (including any hospital or health service controlled by the Minister or the Health Administration Corporation), orand may amend Schedules 1 and 2 accordingly.(d) any of the assets, rights or liabilities of another statutory health organisation,(2) An order made under this section must specify the date (being a date that is on or after the date it is published on the NSW legislation website) on which it takes effect. However, if no date is specified in the order, the order is taken to have specified the date on which it is published on the NSW legislation website as the date on which it takes effect.(3) An order is not to be made under this section unless the Minister is of the opinion that the order is in the public interest and has recommended to the Governor that the order be made.(4) A transfer under this section may be effected without holding an inquiry.(5) (Repealed)s 131: Am 2009 No 56, Sch 4.27; 2010 No 97, Sch 1.1 [29].
132 Consequential and transitional provisions on the making of orders
(cf AHS Act s 10)
(1) Schedule 4 has effect with respect to an order under this Part.(2) An order under this Part may contain provisions, not inconsistent with the provisions of or made under Schedule 4, of a savings or transitional nature consequent on the making of the order.
Chapter 11 Miscellaneous
Introduction—
This Chapter contains various provisions relating to the general operation of the Act.
For instance, it provides for an offence of obstructing or hindering the performance of functions under the Act and facilitates the proof of certain matters in legal proceedings. A general regulation-making power is also provided.
Public health organisations are also authorised to retain and realise certain unclaimed assets of former or deceased patients that have been left at their premises, the proceeds of which are to be used to establish Samaritan Funds for the benefit of needy patients of the organisation.
ch 11, introduction: Am 2010 No 97, Sch 1.1 [30].
133 Establishment of Samaritan Funds
(cf PH Act s 40A)
(1) The following money and personal effects are taken to be the property of a public health organisation—(a) all money and personal effects (being choses in possession) that are—(i) left in its custody by any patient who dies in one of its hospitals or health institutions, and(ii) not claimed by the person lawfully entitled to them within a period of 12 months after the patient’s death, and(b) all money and personal effects (being choses in possession) that are—(i) left in its custody by any patient discharged from one of its hospitals or health institutions, and(ii) not claimed by the patient or other person lawfully entitled to them within a period of 12 months after the date of discharge.(2) All such money, and the proceeds of the realisation of any such personal effects, are to form a distinct and separate fund of the public health organisation to be called a Samaritan Fund.(3) A Samaritan Fund is to be managed and disposed of in such manner as may be prescribed by the regulations for the benefit of patients or outgoing patients who are needy.(4) A local health district or statutory health corporation may establish a separate fund for each hospital or health institution, or a single fund for all public hospitals or health institutions, under its control.(5) A reference in this section to a public health organisation includes a reference to the Crown in relation to any public hospital controlled by the Crown (including the Minister or the Health Administration Corporation).
133A Nature of staffing arrangements
Any arrangements entered into by or on behalf of the Crown with a public health organisation in connection with the employment of staff in the NSW Health Service do not constitute an employment placement service for the purposes of Division 3 of Part 4 of the Fair Trading Act 1987.s 133A: Ins 2006 No 2, Sch 2 [53]. Am 2011 No 62, Sch 2.15.
133B Personal liability of members of boards of statutory health organisations
A matter or thing done or omitted to be done by—(a) a statutory health organisation, or(b) the board of a statutory health organisation, or(c) a member of the board of a statutory health organisation, ordoes not, if the matter or thing was done or omitted to be done in good faith for the purposes of executing this or any other Act, subject such a member or person personally to any action, liability, claim or demand.(d) a person acting under the direction of such an organisation or board,s 133B: Ins 2010 No 97, Sch 1.1 [31]. Am 2011 No 4, Sch 1.2 [5] [6].
133C Sharing or exchange of information about health practitioner appointments
(1) A public health organisation may share or exchange appointment information about a health practitioner with a private health facility licensee if the public health organisation—(a) reasonably believes that the health practitioner practises at the private health facility, and(b) reasonably considers that the disclosure of that information to the licensee is necessary because it raises serious concerns about the safety of patients.(2) Information is appointment information about a health practitioner for the purposes of this section if—(a) the health practitioner practises (or formerly practised) at a hospital or health institution of the public health organisation (whether under a service contract or otherwise), and(b) the information relates to the variation, suspension or termination by the public health organisation of clinical privileges of the health practitioner.(3) Without limiting section 133B, the disclosure of appointment information about a health practitioner by a public health organisation (or a person acting at the direction of the organisation) to a private health facility licensee does not, if the disclosure was made in good faith, subject the organisation or person personally to any action, liability, claim or demand.(4) Nothing in this section limits the ability of public health organisations to share or exchange appointment information about health practitioners with each other or with the Health Secretary or Minister.(5) In this section—clinical privileges has the same meaning as it has in Part 4 of Chapter 8.health practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).private health facility licensee means a licensee for a private health facility under the Private Health Facilities Act 2007.s 133C: Ins 2014 No 84, Sch 2.1.
134 Obstructing or hindering Minister, Health Secretary, authorised officer or other public official
(cf PH Act s 34)
A person must not obstruct or hinder—(a) the Minister, or(b) the Health Secretary, or(c) any authorised officer, orin the exercise of any function conferred by or under this Act for the purposes of any inquiry, investigation, inspection or report.(d) any other public official,Maximum penalty—100 penalty units.
135 Authentication of certain documents
(cf AHS Act s 35)
Every summons, process, demand, order, notice, statement, direction or other document requiring authentication by a public health organisation may be sufficiently authenticated without the seal of that organisation if signed by the chief executive or by any employee of that organisation authorised to do so by the chief executive.
136 Proof of certain matters not required
(cf AHS Act s 36)
In any legal proceedings, proof is not required (until evidence is given to the contrary) of any of the following matters—(a) the constitution of a board or governing body of a public health organisation,(b) any resolution of a board or governing body of a public health organisation,(c) the appointment of, or the holding of office by, any member of a board or governing body of a public health organisation,(d) the presence of a quorum at any meeting of a board or governing body of a public health organisation.s 136: Am 2010 No 97, Sch 1.1 [32]; 2011 No 4, Sch 1.2 [7].
137 Proceedings for offences
(cf AHS Act s 37)
Proceedings for an offence against this Act (other than an offence under section 67J (2)) or the regulations are to be dealt with summarily before the Local Court.s 137: Am 2007 No 94, Sch 4; 2010 No 52, Sch 1.1. [2].
138 (Repealed)
s 138: Rep 2010 No 97, Sch 1.1 [33].
139 Liability of persons conducting performance reviews etc
(1) This section applies with respect to the provision of expert advice or assistance by a person, for or on behalf of a public health organisation or the Health Secretary and in the person’s professional capacity, in connection with—(a) a review of the performance or conduct of any visiting practitioner or relevant employee, or(b) a review to determine whether to take disciplinary action in relation to any visiting practitioner or relevant employee, or(c) a review or inquiry conducted in relation to the operation of the public health system or any part of that system.(2) No matter or thing done by the person in providing the advice or assistance subjects the person personally to any action, liability, claim or demand if the matter or thing was done by the person in good faith for the purposes of executing this or any other Act.(3) If subsection (2) prevents liability attaching to a person, the liability attaches instead to the public health organisation concerned or the Health Secretary (as the case may be).(4) A reference in this section to the Health Secretary is a reference to the Health Secretary in respect of the provision of ambulance services under Chapter 5A or the provision of health support services under Part 1A of Chapter 10.(5) In this section—relevant employee means—(a) a member of the NSW Health Service, or(b) a person who—(i) is an employee of an affiliated health organisation that is not a declared affiliated health organisation, and(ii) is employed in relation to a recognised establishment or recognised service of the organisation.s 139: Rep 1999 No 85, Sch 4. Ins 2007 No 89, Sch 2.5 [5]. Am 2009 No 15, Sch 1.4 [3] [4]; 2016 No 45, Sch 2 [9].
139A Liability of certain persons assisting in the exercise of functions under Guardianship Act 1987 and Children and Young Persons (Care and Protection) Act 1998
(1) Any person who is a member of staff of the NSW Health Service who, in good faith, assists a registered health practitioner who is exercising a function that is conferred or imposed on the practitioner by or under Part 5 of the Guardianship Act 1987 or Part 1 of Chapter 9 of the Children and Young Persons (Care and Protection) Act 1998 is not personally liable for any injury or damage caused in assisting the practitioner in exercising any such function.(2) If subsection (1) prevents liability attaching to a person, the liability attaches instead to the local health district, or statutory health corporation, in which the member of the NSW Health Service was employed at the time the assistance was rendered.(3) Nothing in this section, or any other provision of this Act, the Guardianship Act 1987, the Children and Young Persons (Care and Protection) Act 1998 or the regulations relieves a registered health practitioner or other person from liability in respect of carrying out treatment on a patient or other person to which the registered health practitioner or person would have been subject had the treatment been carried out with the patient’s or other person’s consent.(4) Nothing in this section affects any exclusion from liability provided by another provision of this Act, the Guardianship Act 1987, the Children and Young Persons (Care and Protection) Act 1998 or any other law.(5) In this section, registered health practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).s 139A: Ins 2016 No 45, Sch 2 [10].
140 Regulations
(cf AHS Act s 38, PH Act s 42)
(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.(2) Without limiting the generality of subsection (1), the regulations may provide for the following—(a) accounts to be kept by public health organisations and the auditing of those accounts,(b) records to be kept by public health organisations or public hospitals,(c) the furnishing of information and reports to the Minister, Health Secretary or other person by public health organisations,(d) the furnishing of information to a patient in the care of a public health organisation and the inspection of records by such a patient in connection with the treatment of the patient by the organisation,(e) the appointment, control and governance of visiting practitioners, including the conditions subject to which they perform work,(f) in the case of public hospitals controlled by local health districts or statutory health corporations—the admission and discharge of patients and the payment and collection of fees payable by patients for health services,(g) the authorisation, prohibition and control of fundraising by public appeal or otherwise for the purposes of public hospitals,(h) the administration and management of any affiliated health organisation in relation to its recognised establishments and recognised services,(i) the disposal of unclaimed property of patients in the care of a public health organisation,(j) the control and governance of members of staff of the NSW Health Service and any other matter or thing necessary or convenient to ensure the maintenance of discipline and efficiency of that staff,(k) the conditions of employment (including salaries and wages) of persons employed by affiliated health organisations (other than declared affiliated health organisations) in respect of their recognised establishments and recognised services,(l) the management of, and accounting for, any funds (including the amount of any subsidy determined under section 127) paid by or on behalf of the State to a public health organisation to meet the employment-related costs and liabilities in relation to those members of the NSW Health Service who are employed in connection with the organisation,(m) the recognition of prior government service or public health system service for the purposes of calculating the long service leave entitlements of employees in the public health system,(n) the updating of any reference in any Act, in any instrument made under any Act or in any document of any kind to any public health organisation (or to any officer, body or function of the organisation) that is (or will become) out of date or otherwise incorrect because of the dissolution, amalgamation, change in governance or renaming of the organisation or the transfer of any of its functions, assets, rights or liabilities,(o) regulating or prohibiting smoking at any public hospital controlled by the Crown (including the Minister or the Health Administration Corporation), including by designating an area as a smoke-free area for the purposes of section 6A (Smoke-free areas—outdoor public places) of the Smoke-free Environment Act 2000.(3) The regulations may make provision for or with respect to any matter for or with respect to which a by-law may be made by a public health organisation.(4) A provision of a regulation prevails to the extent to which it is inconsistent with a by-law made by a public health organisation.(5) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.(6) A regulation made under subsection (2) (e) cannot be made unless the Minister has received advice from the Medical Services Committee in relation to the substance of the regulation.(7) Subsection (6) does not apply to a regulation if the Medical Services Committee does not furnish advice in relation to the regulation to the Minister—(a) within 30 days after a notice from the Minister requesting such advice has been served on the Committee, or(b) within such further period as the Minister may specify in the notice or in another notice served on the Committee.Note—Section 42 of the Interpretation Act 1987 provides for the general matters for which statutory rules (which include regulations) may make provision.s 140: Am 2006 No 2, Sch 2 [54]; 2011 No 4, Sch 1.2 [8]; 2012 No 56, Sch 2 [3].
141 Savings and transitional provisions
Schedule 7 has effect.
142 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Schedule 1 Names and areas of local health districts
(Sections 17 and 18)
sch 1, hdg: Am 2011 No 4, Sch 1.1 [6].
Column 1 | Column 2 | Column 3 |
Name of local health district | Description of local government area or city | Description of area other than local government area |
Sydney Local Health District | Ashfield, Burwood, Canada Bay, Canterbury, Leichhardt, Marrickville, Strathfield, Sydney (part) | |
South Western Sydney Local Health District | Bankstown, Camden, Campbelltown, Fairfield, Liverpool, Wingecarribee, Wollondilly | |
South Eastern Sydney Local Health District | Botany Bay, Hurstville, Kogarah, Randwick, Rockdale, Sutherland, Sydney (part), Waverley, Woollahra | Lord Howe Island |
Illawarra Shoalhaven Local Health District | Kiama, Shellharbour, Shoalhaven, Wollongong | |
Western Sydney Local Health District | Auburn, Baulkham Hills, Blacktown, Holroyd, Parramatta | |
Nepean Blue Mountains Local Health District | Blue Mountains, Hawkesbury, Lithgow, Penrith | |
Northern Sydney Local Health District | Hornsby, Hunters Hill, Ku-ring-gai, Lane Cove, Manly, Mosman, North Sydney, Pittwater, Ryde, Warringah, Willoughby | |
Central Coast Local Health District | Gosford, Wyong | |
Hunter New England Local Health District | Armidale Dumaresq, Cessnock, Dungog, Glen Innes Severn, Gloucester, Great Lakes, Greater Taree, Gunnedah, Guyra, Gwydir, Inverell, Lake Macquarie, Liverpool Plains, Maitland, Moree Plains, Muswellbrook, Narrabri, Newcastle, Port Stephens, Singleton, Tamworth Regional, Tenterfield (part), Upper Hunter, Uralla, Walcha | |
Murrumbidgee Local Health District | Albury, Berrigan, Bland, Boorowa, Carrathool, Conargo, Coolamon, Cootamundra, Corowa, Deniliquin, Greater Hume, Griffith, Gundagai, Harden, Hay, Jerilderie, Junee, Lachlan (part), Leeton, Lockhart, Murray, Murrumbidgee, Narrandera, Temora, Tumbarumba, Tumut, Urana, Wagga Wagga, Wakool, Young | |
Southern NSW Local Health District | Bega Valley, Bombala, Cooma-Monaro, Eurobodalla, Goulburn Mulwaree, Palerang, Queanbeyan, Snowy River, Upper Lachlan, Yass Valley | |
Western NSW Local Health District | Bathurst Regional, Blayney, Bogan, Bourke, Brewarrina, Cabonne, Cobar, Coonamble, Cowra, Dubbo, Forbes, Gilgandra, Lachlan (part), Mid-Western Regional, Narromine, Oberon, Orange, Parkes, Walgett, Warren, Warrumbungle, Weddin, Wellington | |
Far West Local Health District | Balranald, Broken Hill, Central Darling, Wentworth | Unincorporated Far West |
Mid North Coast Local Health District | Bellingen, Coffs Harbour, Hastings, Kempsey, Nambucca | |
Northern NSW Local Health District | Ballina, Byron, Clarence Valley, Kyogle, Lismore, Richmond Valley, Tenterfield (part), Tweed |
sch 1: Am GG No 81 of 30.6.2000, p 5798. Subst GG No 125 of 28.7.2004, p 6092. Am GG No 166 of 22.10.2004, p 8129; 2008 No 62, Sch 2.26. Subst 2010 No 97, Sch 1.1 [34]. Am 2010 (726), cl 3 (1)–(4); 2011 (130), cl 3 (1)–(4); 2011 No 4, Sch 1.1 [7]; 2011 No 27, Sch 2.20.
Schedule 2 Statutory health corporations
(Section 41)
Column 1 | Column 2 |
Name of statutory health corporation | Nature of governance |
The Agency for Clinical Innovation | Board |
Bureau of Health Information | Board |
Clinical Excellence Commission | Board |
Health Education and Training Institute | Chief executive |
Justice Health and Forensic Mental Health Network | Specialty network |
The Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating The Royal Alexandra Hospital for Children) | Specialty network |
sch 2: Am GG No 81 of 30.6.2000, p 5798; GG No 188 of 7.12.2001, p 9618; GG No 49 of 21.2.2003, p 2272 (the order was not commenced and was repealed by GG No 104 of 27.6.2003, p 6351); GG No 104 of 27.6.2003, p 6348; GG No 109 of 30.6.2004, p 4868; GG No 135 of 20.8.2004, p 6629. Subst 2004 No 92, Sch 1 [28]. Am 2008 (625), Sch 1 [1]; 2009 (243), cl 4; 2009 (300), cll 3, 5; 2009 (440), cl 3; 2009 (587), cl 3; 2010 (260), cl 3; 2010 (334), cl 4; 2010 No 97, Sch 1.1 [35] [36]; 2010 (637), cl 4; 2011 No 4, Sch 1.1 [8]; 2012 (111), cl 4 (1) (2); 2012 (130), cl 4 (1) (2); 2012 (131), cl 3; 2012 (224), cl 5; 2013 (122), cl 4; 2015 (664), cl 5.
Schedule 3 Affiliated health organisations
(Section 62)
Column 1 | Column 2 |
Name of organisation | Recognised establishment or recognised service |
Benevolent Society of New South Wales | Central Sydney Scarba Services. Early Intervention Program. Eastern Sydney Scarba Services. South West Sydney Scarba Services. |
Calvary Health Care (Newcastle) Limited | Calvary Mater Newcastle |
Calvary Health Care Sydney Limited | Calvary Health Care Sydney. |
Catholic Healthcare Limited | St Vincent’s Health Service, Bathurst. Lourdes Hospital and Community Health Service (other than Holy Spirit Dubbo). |
Hammondcare Health and Hospitals Limited | Braeside Hospital, Prairiewood. Greenwich Hospital, Greenwich. Neringah Hospital, Wahroonga. Northern Beaches Palliative Care Service. |
Karitane | Child and Family health services at Carramar, Fairfield, Liverpool and Randwick. |
Mercy Hospitals NSW Ltd | Mercy Care Centre: Young, excluding Mount St Joseph’s Nursing Home. Mercy Health Service Albury. |
NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) | NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) |
Royal Rehab | General rehabilitation services. Brain injury rehabilitation services. Spinal injury rehabilitation services. Extended care services. |
Royal Society for the Welfare of Mothers and Babies | Tresillian Family Care Centres at Belmore, Lismore, Penrith, Willoughby and Wollstonecraft. |
St Vincent’s Hospital Sydney Limited | Sacred Heart Health Service. St Joseph’s Hospital (Auburn). St Vincent’s Hospital, Darlinghurst. |
Stewart House | Child health screening services at Stewart House Preventorium, Curl Curl. |
The College of Nursing | Nursing Education Programs conducted under agreement with the NSW Ministry of Health. |
Uniting Church in Australia | War Memorial Hospital (Waverley). |
sch 3: Am GG No 97 of 26.6.1998, p 4864; 1998 No 54, Sch 1.10 [3]; GG No 75 of 30.6.1999, p 4577; GG No 84 of 23.7.1999, p 5150; GG No 127 of 17.8.2001, p 6034; GG No 149 of 20.9.2002, p 8215; GG No 170 of 11.10.2002, p 8711; GG No 104 of 27.6.2003, p 6349; GG No 178 of 7.11.2003, pp 10385, 10387, 10389; GG No 131 of 6.8.2004, pp 6348, 6349; 2005 (294), cl 3; 2007 (312), Sch 1 [1] [2]; 2008 (625), Sch 1 [2]; 2009 (309), cl 3; 2009 (586), Sch 1 [1]–[7]; 2010 (563), cl 3 (1) (2); 2011 (249), cl 3; 2013 (255), cl 3; 2013 (737), cl 3; 2014 (111), cl 3; 2015 (205), cl 3; 2015 No 58, Sch 3.41 [2]; 2017 (495), cl 3; 2018 (279), cl 3.
Schedule 4 Transfers, dissolutions, amalgamations and changes of name or nature of governance
(Sections 21, 44, 64 and 132)
sch 4, hdg: Am 2004 No 92, Sch 2 [19].
Part 1 General
Division 1 Interpretation
1 Definitions
In this Schedule—instrument means an instrument (other than this Act) that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order or process of a court.transferee means the person or body to which any staff, assets, rights or liabilities are transferred.transferor means the person or body from which any staff, assets, rights or liabilities are transferred.transferred public health organisation means a public health organisation that is transferred to another public health organisation.
2 Orders to which this Schedule applies
This Schedule applies to the following orders—(a) an order under section 20 (Dissolution, amalgamation or change of name of local health districts),(b) an order under section 43 (Dissolution, transfer, amalgamation, or change of name or nature of governance of statutory health corporations),(c) an order under section 64 (Transfer of recognised establishments and recognised services of affiliated health organisations),(d) an order under section 131 (Transfer of hospitals, health institutions, services and property between local health districts and statutory health corporations).
Division 2 Consequences of orders to which this Schedule applies
3 Orders relating to local health districts
(1) Dissolution orders On and from the date specified in an order under section 20 (1) (a) for the dissolution of a local health district—(a) the local health district is dissolved, and(b) (Repealed)(c) the assets, rights and liabilities of the local health district are transferred to the Minister (or any other person or body specified in the order), and(d) Part 2 applies to that transfer.(2) Amalgamation orders On and from the date specified in an order under section 20 (1) (b) for the amalgamation of 2 or more local health districts—(a) each local health district amalgamated by the order is dissolved, and(b) (Repealed)(c) the assets, rights and liabilities of each amalgamating local health district are transferred to the amalgamated local health district, and(d) Part 2 applies to that transfer.(3) Name change orders On and from the date specified in an order made under section 20 (1) (c) changing the name of a local health district, Part 3 applies to that change of name.(4) Effect on compensation rights Nothing in this Schedule affects any compensation rights to which the chief executive of a dissolved or amalgamating local health district may be entitled under Part 3 of Chapter 9 as a consequence of ceasing to hold office.
4 Orders relating to statutory health corporations
(1) Dissolution orders On and from the date specified in an order made under section 43 (1) (a) dissolving a statutory health corporation—(a) the statutory health corporation is dissolved, and(b) in the case of a board governed health corporation or specialty network governed health corporation, the members of the board of the corporation cease to hold office, but are not entitled to be paid any compensation by reason of ceasing to hold office, and(c) the assets, rights and liabilities of the statutory health corporation are transferred to the Minister (or any other person or body specified in the order), and(d) Part 2 applies to that transfer.(2) Transfer orders On and from the date specified in an order made under section 43 (1) (b) transferring a statutory health corporation to a local health district—(a) the statutory health corporation is dissolved, and(b) in the case of a board governed health corporation or specialty network governed health corporation, the members of the board of the corporation cease to hold office, but are not entitled to be paid any compensation by reason of ceasing to hold office, and(c) the assets, rights and liabilities of the statutory health corporation are transferred to the local health district, and(d) Part 2 applies to that transfer.(3) Amalgamation orders On and from the date specified in an order made under section 43 (1) (c) for the amalgamation of 2 or more statutory health corporations—(a) each statutory health corporation amalgamated by the order is dissolved, and(b) the members of the board of a board governed health corporation or a specialty network governed health corporation involved in the amalgamation cease to hold office and—(i) if the amalgamated corporation is a board governed health corporation or specialty network governed health corporation, are eligible (if otherwise qualified) to be appointed as members of the board of the amalgamated corporation, and(ii) are not entitled to be paid any compensation by reason of ceasing to hold office, and(c) the assets, rights and liabilities of each amalgamating service are transferred to the amalgamated statutory health corporation, and(d) Part 2 applies to that transfer.(4) Name change orders On and from the date specified in an order made under section 43 (1) (d) changing the name of a statutory health corporation, Part 3 applies to that change of name.(4A) Change of governance orders On and from the date specified in an order made under section 43 (1) (d) changing the nature of governance of a statutory health corporation from board governance or specialty network governance to chief executive governance, the members of the board for the corporation cease to hold office, but are not entitled to be paid any compensation by reason of ceasing to hold office.(4B) On and from the date specified in an order made under section 43 (1) (d) changing the nature of governance of a statutory health corporation from board governance to specialty network governance or from specialty network governance to board governance, the members of the existing board cease to hold office and—(a) are eligible (if otherwise qualified) to be appointed as members of the new board of the corporation, and(b) are not entitled to be paid any compensation by reason of ceasing to hold office.(5) Effect on compensation rights Nothing in this section affects any compensation rights to which the chief executive of a dissolved or amalgamating statutory health corporation may be entitled under Part 3 of Chapter 9 of this Act or Part 4 of the Government Sector Employment Act 2013 as a consequence of ceasing to hold office as such.
5 Orders relating to affiliated health organisations
(1) Transfer of hospitals and health institutions On and from the date specified in an order under section 64 (1) (a) transferring any public hospital or health institution of an affiliated health organisation that is a recognised establishment of the organisation to a local health district or statutory health corporation, Part 2 has effect to the extent of that transfer.(2) Transfer of health services and health support services On and from the date specified in an order under section 64 (1) (b) transferring any health service or health support service of an affiliated health organisation that is a recognised service of the organisation to a local health district or statutory health corporation, Part 2 has effect to the extent of that transfer.(3) Transfer of assets, rights or liabilities On and from the date specified in an order under section 64 (1) (c) transferring any assets, rights or liabilities of an affiliated health organisation relating to a recognised establishment or recognised service of the organisation to a local health district or statutory health corporation, Part 2 has effect to the extent of that transfer.(4) Consents to transfers of property An order under section 64 (1) that purports to transfer any property of an affiliated health organisation operates to transfer only such property in respect of the transfer of which the organisation has consented.(5) Effect on trustees of transfer order If any such order operates to transfer all of the property of an affiliated health organisation that is held in trust for it by trustees, the trustees cease to hold office as trustees in respect of that property on and from the transfer date specified in the order.
6 Orders transferring hospitals, health institutions, services or property between statutory health organisations
(1) Transfer of public hospitals and health institutions On and from the date specified in an order under section 131 (1) (a) transferring any public hospital or health institution under the control of a statutory health organisation to another statutory health organisation, Part 2 has effect to the extent of that transfer.(2) Transfer of health services and health support services On and from the date specified in an order under section 131 (1) (b) transferring any health service or health support service under the control of a statutory health organisation to another statutory health organisation, Part 2 has effect to the extent of that transfer.(3) Transfer of services provided by Crown On and from the date specified in an order under section 131 (1) (c) transferring any hospital or health service controlled by the Crown, Part 2 has effect to the extent of that transfer.(4) Transfer of assets, rights or liabilities On and from the date specified in an order under section 131 (1) (d) transferring any assets, rights or liabilities of a statutory health organisation to another statutory health organisation, Part 2 has effect to the extent of that transfer.
Part 2 Transfers
Division 1 Staff
7 Transfer of staff
A member of staff who is transferred by a transfer to which this Part applies is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the person not been transferred but remained a member of staff of the transferor.
Division 2 Transfer of hospitals, health institutions, health services and health support services
8 Transfer of hospitals and health institutions
(1) An order that transfers a hospital or health institution from any public health organisation to another public health organisation is taken to transfer (unless the order provides otherwise)—(a) the staff employed in or in connection with the hospital or institution, and(b) the assets, rights and liabilities used principally for the conduct of the hospital or institution.(2) An order that transfers a hospital or health institution controlled by the Crown to a public health organisation is taken (unless the order provides otherwise) to transfer the personal property of the Crown used principally for the conduct of the hospital or institution.
9 Transfer of health services and health support services
An order that transfers a health service or health support service from any public health organisation to another public health organisation may specify the staff, assets, rights or liabilities of that health service or health support service that are to be transferred from the other public health organisation along with the health service or health support service.
Division 3 Assets, rights or liabilities
10 Vesting of undertaking in transferee
(1) When any assets, rights or liabilities are transferred by a transfer to which this Part applies, the following provisions have effect—(a) the assets of the transferor vest in the transferee by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,(b) the rights or liabilities of the transferor become by virtue of this clause the rights or liabilities of the transferee,(c) all proceedings relating to the assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,(d) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the transferor is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee,(d1) the transferee has all the entitlements and obligations of the transferor in relation to those assets, rights and liabilities that the transferor would have had but for the order, whether or not those entitlements and obligations were actual or potential at the time the transfer took effect,(e) subject to the regulations, a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent to which it relates to those assets, rights or liabilities) taken to include a reference to the transferee.(2) The operation of this clause is not to be regarded—(a) as a breach of contract or confidence or otherwise as a civil wrong, or(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or(d) as an event of default under any contract or other instrument.(3) No attornment to the transferee by a lessee from the transferor is required.(4) A transfer is subject to the terms and conditions of the order by which it is effected.(5) No compensation is payable to any person or body in connection with a transfer to which this Part applies except to the extent (if any) to which the order giving rise to the transfer so provides.(6) Subclause (5) does not affect the rights of any member of staff who is the subject of a transfer to which this Part applies.
Division 4 Other general provisions concerning transfers
11 Date of vesting
A transfer to which this Part applies takes effect on the date specified in the order by which it is effected.
12 Consideration for vesting
The Minister may, by order in writing, specify the consideration on which a transfer to which this Part applies is made and the value or values at which the assets, rights or liabilities are transferred.
13 Stamp duty
Stamp duty is not chargeable for or in respect of—(a) a transfer to which this Part applies, or(b) anything certified by the Minister as having been done in consequence of such a transfer (for example, the transfer or conveyance of an interest in land).
14 Confirmation of vesting
(1) The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities by operation of this Part.(2) Such a notice is conclusive evidence of that transfer.
15 By-laws of public health organisation
The by-laws of a transferred public health organisation in force at the transfer date continue to apply to and in respect of any hospital, health institution, health service or health support service it conducts or provides until by-laws are made under this Act by the transferee in relation to that hospital, institution or service.
16 Functions of transferred public health organisation
(1) Any function conferred or imposed immediately before the transfer date on a transferred public health organisation, or on the board (or managing body) of a public health organisation, in relation to the administration and operation of any of the hospitals, health institutions, health services or health support services it conducts or provides may continue to be exercised on and from the transfer date by the transferee.(2) Subclause (1) has effect despite any other provision of this Act.(3) Without limiting subclause (1), a reference in that subclause to a function includes a reference to a power of investment.
Part 3 Changes of name
17 Name changes do not affect status of district or corporation
A change of name of a local health district or a statutory health corporation by an order does not operate—(a) to create a new legal entity, or(b) to prejudice or affect the identity of the body corporate constituted as a local health district or statutory health corporation or its continuity as a body corporate, or(c) to affect the property, or the rights or obligations, of the local health district or statutory health corporation, orand any legal proceedings that could have been continued or commenced by or against the local health district or statutory health corporation by its former name may be continued or commenced by or against it by its new name.(d) to render defective any legal proceedings by or against the local health district or statutory health corporation,
Part 4 Savings and transitional regulations
18 Regulations
(1) The regulations may contain other provisions of a savings or transitional nature consequent on the making of an order to which this Schedule applies.(1A) Without limiting subclause (1), a provision referred to in that subclause may make provision for or with respect to the legal consequences of the differential transfer of rights, obligations or other liabilities under the same contract or other agreement to more than one transferee.(2) A provision referred to in subclause (1) which relates to a particular order may, if the regulations so provide, take effect as from the date of the order or a later day.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as—(a) to affect, in a manner prejudicial to any person (other than the State, an authority of the State, a local health district or a statutory health corporation), the rights of that person existing before the date of its publication in the Gazette, or(b) to impose liabilities on any person (other than the State, an authority of the State, a local health district or a statutory health corporation) in respect of anything done or omitted to be done before the date of its publication in the Gazette.(4) A provision referred to in subclause (1) has, if the regulations so provide, effect despite any other clause of this Schedule.
sch 4: Am 2004 No 92, Sch 2 [20]–[28]; 2006 No 2, Sch 2 [55] [56]; 2010 No 97, Sch 1.1 [37]–[42], 1.2 [6]; 2011 No 4, Sch 1.2 [9]–[13]; 2012 No 42, Sch 2.17 [2]; 2014 No 33, Sch 3.13 [2].
Schedule 4A Constitution and procedure of local health district boards
(Section 26)
Part 1 Preliminary
1 Definitions
In this Schedule—Board means the local health district board for a local health district.Chairperson means the Chairperson of a Board.Chief Executive means the chief executive of a local health district.Deputy Chairperson means the Deputy Chairperson of a Board.medical staff council means the medical staff council of a local health district appointed under the district’s by-laws.medical staff executive council means the medical staff executive council of a local health district appointed under the district’s by-laws.member means a member of a Board.
Part 2 Constitution
2 Chairperson and Deputy Chairperson
(1) The Minister may, from time to time, appoint a member (other than the Chairperson), by the instrument of appointment of the member or a subsequent instrument signed by the Minister, as the Deputy Chairperson of a Board.(2) The Minister may at any time remove the Chairperson or Deputy Chairperson from office as Chairperson or Deputy Chairperson of a Board.(3) A person who is Chairperson or Deputy Chairperson of a Board is taken to have vacated office as Chairperson or Deputy Chairperson if the person—(a) is removed from that office by the Minister under subclause (2), or(b) resigns that office by instrument in writing addressed to the Minister, or(c) ceases to be a member.(4) The Deputy Chairperson may act in the office of Chairperson during the illness or absence of the Chairperson, and while so acting has and may exercise all the functions of the Chairperson and is taken to be the Chairperson.(5) For the purposes of this clause, a vacancy in the office of the Chairperson or Deputy Chairperson is taken to be an absence from office of the Chairperson or Deputy Chairperson.Note—A Chairperson is appointed in accordance with section 26 (7).
3 Acting members and acting Chairperson
(1) The Minister may, from time to time, appoint a person to act in the office of a member during the illness or absence of the member, and the person, while so acting, has and may exercise all the functions of the member and is taken to be a member.(2) The Minister may, from time to time, appoint a member to act in the office of Chairperson during the illness or absence of both the Chairperson and Deputy Chairperson, and the member, while so acting, has and may exercise all the functions of the Chairperson and is taken to be the Chairperson.(3) The Minister may remove any person from any office to which the person was appointed under this clause.(4) A person who is acting as a member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.(5) For the purposes of this clause, a vacancy in the office of a member or the Chairperson or Deputy Chairperson is taken to be an absence from office of the member, Chairperson or Deputy Chairperson (as the case may be).
4 Filling of vacancy in office of member
If the office of any member becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
5 Vacancy in office of Chairperson or Deputy Chairperson
The office of Chairperson or Deputy Chairperson becomes vacant if the person holding that office—(a) ceases to be a member, or(b) is removed from office under clause 2 (2).
6 Vacancy in office of member
The office of a member becomes vacant if the member—(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is absent from 4 consecutive meetings of the Board of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Board or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Board for being absent from those meetings, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is convicted in New South Wales of an offence which is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(h) is removed from office by the Minister under section 29.
7 Disclosure of pecuniary interests
(1) If—(a) a member has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Board, andthe member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Board.(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,(2) A disclosure by a member at a meeting of the Board that the member—(a) is a member, or is in the employment, of a specified company or other body, or(b) is a partner, or is in the employment, of a specified person, oris a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).(c) has some other specified interest relating to a specified company or other body or to a specified person,(3) Particulars of any disclosure made under this clause must be recorded by the Board in a book kept for the purpose and that book must be open at all reasonable hours for inspection by any person on payment of the fee determined by the Board.(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the Board otherwise determines—(a) be present during any deliberation of the Board with respect to the matter, or(b) take part in any decision of the Board with respect to the matter.(5) For the purposes of the making of a determination by the Board under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not—(a) be present during any deliberation of the Board for the purpose of making the determination, or(b) take part in the making by the Board of the determination.(6) A member does not have a pecuniary interest for the purposes of this clause in relation to a matter merely because the member is employed or otherwise holds an appointment at a hospital or health service that is or may be affected by the matter.(7) A contravention of this clause does not invalidate any decision of the Board.(8) The provisions of this clause extend to meetings of a committee of the Board.
8 Avoidance of conflicts when Board exercising employer functions
(1) Any member of a Board who is employed by, or otherwise holds a clinical appointment or other type of appointment prescribed by the regulation with, the local health district for which the Board was established must not—(a) be present during any deliberation of the Board relating to the Board’s employer functions in respect of the employment (including appointment and removal) of the Chief Executive, or(b) take part in any decision of the Board with respect to the matter.(2) A contravention of this clause does not invalidate any decision of the Board.(3) This clause does not prevent a person specified in subclause (1) from providing advice to the Board relating to the Board’s employer functions in respect of the Chief Executive.
9 Effect of certain other Acts
(1) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a member.(2) If, by or under any Act, provision is made—(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthe provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.(b) prohibiting the person from engaging in employment outside the duties of that office,
10 No compensation for removal from office or failure to re-appoint
A member who is removed from office or not re-appointed at the end of his or her term of office is not entitled to be paid any compensation by reason of ceasing to hold office.
Part 3 Procedure
11 General procedure
The procedure for the calling of meetings of a Board and for the conduct of business at those meetings is, subject to this Act, the regulations and any by-laws relating to that Board, to be as determined by that Board.
12 Quorum
The quorum for a meeting of a Board is a majority of its members.
13 Presiding member
(1) The presiding member for a meeting of a Board is—(a) the Chairperson, or(b) in the absence of the Chairperson, the Deputy Chairperson, or(c) in the absence of both the Chairperson and Deputy Chairperson, another member elected to preside at the meeting.(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
14 Voting
(1) Only a member of the Board may vote at a meeting of the Board.(2) Subject to clause 23, any matter put to the vote at any meeting of the Board is to be decided by a show of hands or by secret ballot if requested by a member attending the meeting.(3) A decision supported by a majority of the votes cast at a meeting of the Board at which a quorum is present is the decision of the Board.(4) If any members present at the meeting are excluded from taking part in the decision by clause 8, the decision is a decision of the Board only if the number of members present and entitled to vote on the decision is not less than the majority of the number of members (whether or not present) entitled to vote on the decision.
15 First meeting of Board
The Chairperson may call the first meeting of a Board in such manner as the Chairperson thinks fit.
16 Ordinary meetings of Board
(1) A Board is to hold ordinary meetings at such times and places as may be determined by the Board.(2) At least 6 ordinary meetings are to be held in any 12-month period with such meetings being held at regular intervals.(3) Written notice of an ordinary meeting (whether delivered by ordinary post or electronic means) is to be given by the Chief Executive, or by another person authorised by the Board to give notice, to each member and each person invited by the Board to attend the meeting, at least 7 days before the meeting.(4) The written notice of the meeting given to a member is to be accompanied by the following—(a) a copy of the agenda for the meeting,(b) except in the case of the first meeting of the Board, a copy of the minutes of the previous meeting of the Board,(c) a copy of the minutes of any special meeting of the Board held since the last ordinary meeting,(d) a copy of the minutes of any meeting of a committee held since the Board’s last ordinary meeting.(5) A person invited to the meeting by the Board may be provided with such of the information listed in subclause (4) as the Chairperson considers appropriate.
17 Special meetings of Board
(1) A special meeting of the Board is to be called by the Chief Executive—(a) at the direction of the Chairperson, or(b) within 48 hours of receipt by the Chief Executive of a written request for a special meeting signed by at least 3 members of the Board.(2) A special meeting is to be held not later than 7 days after receipt by the Chief Executive of a request referred to in subclause (1) (b).(3) The Chief Executive is to give at least 24 hours written notice, and such of the material referred to in clause 16 (4) as the Chief Executive considers appropriate, to each member of and to each person invited to attend the meeting by the Board.(4) Notice of a special meeting is to specify the business to be considered at that meeting.(5) Only business specified in the notice of a special meeting is to be considered at the special meeting.
18 Attendance at Board meetings
(1) The Board is to invite the following people to attend its meetings—(a) the Chief Executive or his or her nominee,(b) the Chair of the medical staff executive council for the local health district or, if there is only one medical staff council for the district, the Chair of that medical staff council,(c) at least one representative of the executive staff (being the persons appointed by the local health district to its management structure and any persons appointed to act for the time being in those positions).(2) A medical staff executive council or medical staff council (as the case requires) may nominate an alternate to attend meetings of the Board in the event that the Chair of the medical staff executive council or medical staff council is unable to attend a meeting. Any such alternate may attend a meeting to which the Chair is invited in the event that the Chair is unable to attend.(3) If a local health district has more than one medical staff council, the Board may invite a representative for such of the councils as the Board considers appropriate.(4) The Board may invite any other person to attend any meeting of the Board (including both ordinary and special meetings).(5) The Board may exclude any person (other than a member or the Chief Executive or his or her nominee) from attending any meeting or part of a meeting.(6) The Board may exclude the Chief Executive, or his or her nominee, from attending any ordinary or special meeting, or part of a meeting, where the business under consideration relates to the conduct or performance of the Chief Executive.
19 Annual public meeting
(1) An annual public meeting of the Board is to be held between 1 July and 31 December each calendar year.(2) The Board is to prepare and present at each annual public meeting a report on the affairs of the local health district since the last annual public meeting, including audited financial statements for the local health district.(3) The presiding member is to determine the procedure for the conduct of business at the annual public meeting. The procedure adopted is to be consistent with the requirements of this Act.(4) Any person is entitled to attend the annual public meeting and seek leave to address the meeting.(5) The holding of the annual public meeting is to be advertised in at least one newspaper circulating generally in the area of the local health district and by such other means (including on the Internet) as the Board determines.(6) The provisions of this Schedule relating to the calling and conduct of ordinary and special meetings of the Board do not apply to the calling and conduct of the annual public meeting.
20 Minutes
(1) The Chief Executive is to ensure that minutes are kept of all meetings of the Board.(2) A motion for the confirmation of minutes of a meeting is to be put to the next ordinary meeting.(3) No business is to be transacted until the minutes of the previous meeting have been confirmed or otherwise disposed of.
21 Decisions of the Board to be made available
(1) The Board is to make available to staff of the local health district information concerning its decisions except where the Board determines that it is inappropriate to disclose that information.(2) The Board may make available to the public information concerning its decisions.
22 Rescission
(1) The Board may, at any ordinary or special meeting, vary or rescind any resolution carried at any previous meeting of the Board, but only if the motion to vary or rescind the resolution has been included in or with the notice of the meeting.(2) If a motion to vary or rescind a resolution is considered at a meeting of the Board and is not carried, the motion is not to be reconsidered by the Board during the period of 3 months from the date of that meeting.
23 Transaction of business outside meetings or by telephone
(1) A Board may, if it thinks fit, transact any of its business by the circulation of papers among all the members of the Board for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Board.(2) A Board may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.(3) For the purposes of—(a) the approval of a resolution under subclause (1), orthe Chairperson and each member have the same voting rights as they have at an ordinary meeting of the Board.(b) a meeting held in accordance with subclause (2),(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Board.(5) Papers may be circulated among the members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.
sch 4A: Ins 2016 No 45, Sch 2 [11].
Schedule 5 Provisions relating to members and procedure of health corporation boards
(Section 50)
sch 5, hdg: Am 2004 No 92, Sch 2 [29].
Part 1 General
1 Definitions
In this Schedule—appointed member means a member other than the chief executive.Board means a health corporation board.member means a member of a health corporation board.staff member means a member referred to in section 49 (2).
Part 2 Constitution
2 (Repealed)
3 Chairperson of the Board
(1) The Minister may, from time to time, appoint an appointed member to be the Chairperson of a Board.(2) The Minister may at any time remove the Chairperson from office as Chairperson of a Board.(3) A person who is an appointed member and Chairperson of a Board is taken to have vacated office as Chairperson if the person—(a) is removed from that office by the Minister under subclause (2), or(b) resigns that office by instrument in writing addressed to the Minister, or(c) ceases to be an appointed member.
3A Deputy Chairperson
(1) The Minister may, from time to time, appoint an appointed member (other than the Chairperson), by the instrument of appointment of the member or a subsequent instrument signed by the Minister, as the Deputy Chairperson of a Board.(2) The Minister may at any time remove the Deputy Chairperson from office as Deputy Chairperson of a Board.(3) The Deputy Chairperson may act in the office of Chairperson during the illness or absence of the Chairperson, and while so acting has and may exercise all the functions of the Chairperson and is taken to be the Chairperson.(4) A person who is an appointed member and Deputy Chairperson of a Board is taken to have vacated office as Deputy Chairperson if the person—(a) is removed from that office by the Minister under subclause (2), or(b) resigns that office by instrument in writing addressed to the Minister, or(c) ceases to be an appointed member.
4 Acting members and Acting Chairperson
(1) The Minister may, from time to time, appoint a person to act in the office of a member during the illness or absence of the member, and the person, while so acting, has and may exercise all the functions of the member and is taken to be a member.(2) The Minister may, from time to time, appoint an appointed member of a Board to act in the office of Chairperson of that Board during the illness or absence of both the Chairperson and Deputy Chairperson, and the appointed member, while so acting, has and may exercise all the functions of the Chairperson and is taken to be the Chairperson.(3) The Minister may remove any person from any office to which the person was appointed under this clause.(4) For the purposes of this clause—(a) a vacancy in the office of an appointed member or the Chairperson or Deputy Chairperson is taken to be an absence from office of the member, Chairperson or Deputy Chairperson (as the case may be), and(b) an appointed member is taken to be absent from office as an appointed member during any period when the member acts in the office of the chief executive pursuant to an appointment under subclause (1).
5 Terms of office
(1) Subject to this Schedule, a member holds office—(a) in the case of an appointed member (other than the staff member)—for such period (not exceeding 4 years) as may be specified in the instrument of appointment of the member, or(b) in the case of the staff member—for such period (not exceeding 4 years but not less than 2 years) as may be specified in the instrument of appointment of the member.(2) However, any member whose term of office expires is eligible (if otherwise qualified) for re-appointment.
6 Filling of vacancy in office of member
If the office of any member becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
7 Vacancy in office of member
The office of a member becomes vacant if the member—(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) being an appointed member, is absent from 4 consecutive meetings of that Board of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by that Board or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by that Board for being absent from those meetings, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is convicted in New South Wales of an offence which is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(h) being the staff member, ceases to be a member of staff of the NSW Health Service, or(i) is removed from office by the Governor under section 52.
8 Disclosure of pecuniary interests
(1) If—(a) a member has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Board, andthe member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Board.(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,(2) A disclosure by a member at a meeting of the Board that the member—(a) is a member, or is in the employment, of a specified company or other body, or(b) is a partner, or is in the employment, of a specified person, oris a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).(c) has some other specified interest relating to a specified company or other body or to a specified person,(3) Particulars of any disclosure made under this clause must be recorded by the Board in a book kept for the purpose and that book must be open at all reasonable hours for inspection by any person on payment of the fee determined by the Board.(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the Board otherwise determines—(a) be present during any deliberation of the Board with respect to the matter, or(b) take part in any decision of the Board with respect to the matter.(5) For the purposes of the making of a determination by the Board under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not—(a) be present during any deliberation of the Board for the purpose of making the determination, or(b) take part in the making by the Board of the determination.(5A) A member does not have a pecuniary interest for the purposes of this clause in relation to a matter merely because the member is employed or otherwise holds an appointment at a hospital or health service that is or may be affected by the matter.(6) A contravention of this clause does not invalidate any decision of the Board.(7) The provisions of this clause extend to meetings of a committee of the Board.
9 Effect of certain other Acts
(1) (Repealed)(2) If by or under any other Act provision is made—(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthat provision does not operate to disqualify the person from holding that office and also the office of an appointed member or from accepting and retaining any remuneration payable to the person under this Act as an appointed member.(b) prohibiting the person from engaging in employment outside the duties of that office,(3) The office of an appointed member is, for the purposes of any Act, taken not to be an office or place of profit under the Crown.
10 Remuneration
An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
11 (Repealed)
12 No compensation for removal from office or failure to re-appoint
A member who is removed from office or not re-appointed at the end of his or her term of office is not entitled to be paid any compensation by reason of ceasing to hold office.
Part 3 Procedure
13 General procedure
The procedure for the calling of meetings of a Board and for the conduct of business at those meetings is, subject to this Act, the regulations and any by-laws relating to that Board, to be as determined by that Board.
14 Quorum
The quorum for a meeting of the Board is a majority of its members.
15 Presiding member
(1) The presiding member for a meeting of a Board is—(a) the Chairperson, or(b) in the absence of the Chairperson, the Deputy Chairperson, or(c) in the absence of both the Chairperson and Deputy Chairperson, another member elected to preside at the meeting.(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
16 Voting
A decision supported by a majority of the votes cast at a meeting of the Board at which a quorum is present is the decision of the Board.
16A Minutes
(1) The chief executive is to ensure that minutes are kept of all meetings of the Board.(2) A motion for the confirmation of minutes of a meeting is to be put to the next ordinary meeting.(3) No business is to be transacted until the minutes of the previous meeting have been confirmed or otherwise disposed of.
16B Rescission
(1) The Board may, at any ordinary or special meeting, vary or rescind any resolution carried at any previous meeting of the Board, but only if the motion to vary or rescind the resolution has been included in or with the notice of the meeting.(2) If a motion to vary or rescind a resolution is considered at a meeting of the Board and is not carried, the motion is not to be reconsidered by the Board during the period of 3 months from the date of that meeting.
17 Transaction of business outside meetings or by telephone
(1) A Board may, if it thinks fit, transact any of its business by the circulation of papers among all the members of the Board for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Board.(2) A Board may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.(3) For the purposes of—(a) the approval of a resolution under subclause (1), orthe Chairperson and each member have the same voting rights as they have at an ordinary meeting of the Board.(b) a meeting held in accordance with subclause (2),(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Board.(5) Papers may be circulated among the members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.
18 First meeting of a Board
The Chairperson may call the first meeting of a Board in such manner as the Chairperson thinks fit.
sch 5: Am 1998 No 54, Sch 1.10 [4]; 1999 No 94, Sch 4.114; 2003 No 52, Sch 1 [3] [4]; 2004 No 92, Sch 2 [30]–[41]; 2006 No 2, Sch 2 [57]–[61]; 2010 No 97, Sch 1.1 [43]; 2016 No 45, Sch 2 [12]–[18].
Schedule 6 Provisions relating to members and procedure of Ambulance Service Advisory Board
(Section 67C (7))
sch 6, hdg: Am 2018 No 2, Sch 2 [7].
1 Definitions
In this Schedule—appointed member means a member other than the chief executive of the Ambulance Service of NSW.member means any member of the Advisory Board.staff member means a member referred to in section 67C (3).
2 Chairperson of Advisory Board
(1) Of the appointed members of the Advisory Board, one is, in and by the relevant instrument of appointment as such a member, or by another instrument executed by the Health Secretary, to be appointed as Chairperson of the Advisory Board.(2) The Health Secretary may remove an appointed member from the office of Chairperson of the Advisory Board.(3) A person who is an appointed member and Chairperson of the Advisory Board is to be taken to have vacated office as Chairperson if the person—(a) is removed from that office by the Health Secretary under this clause, or(b) resigns that office by instrument in writing addressed to the Health Secretary, or(c) ceases to be a member.
3 Acting members and acting Chairperson
(1) The Health Secretary may, from time to time, appoint a person to act in the office of a member during the illness or absence of the member, and the person, while so acting, has all the functions of the member and is to be taken to be a member.(2) The Health Secretary may, from time to time, appoint a member to act in the office of Chairperson of the Advisory Board during the illness or absence of the Chairperson, and the member, while so acting, has all the functions of the Chairperson and is to be taken to be the Chairperson.(3) The Health Secretary may remove any person from any office to which the person was appointed under this clause.(4) For the purposes of this clause, a vacancy in the office of a member or the Chairperson of the Advisory Board is to be taken to be an absence from office of the member or Chairperson, as the case may be.
4 Term of office
An appointed member holds office, subject to this Schedule, for such period not exceeding 4 years as may be specified in the instrument of appointment of the member, but is eligible (if otherwise qualified) for re-appointment.
5 Vacancy in office of member
An appointed member is to be taken to have vacated office if the member—(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Health Secretary, or(d) absents himself or herself from 4 consecutive meetings of the Advisory Board of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Board or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Board for being absent from those meetings, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or upwards or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(h) in the case of a staff member, ceases to be a member of the Ambulance Service of NSW.
6 Disclosure of pecuniary interests
(1) A member—(a) who has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Advisory Board, andmust, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Advisory Board.(b) whose interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,(2) A disclosure by a member at a meeting of the Advisory Board that the member—(a) is a member, or is in the employment, of a specified company or other body, or(b) is a partner, or is in the employment, of a specified person, oris a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under this clause.(c) has some other specified interest relating to a specified company or other body or to a specified person,(3) Particulars of any disclosure made under this clause are to be recorded by the members in a book kept for the purpose and that book is to be open at all reasonable hours to inspection by any person on payment of the fee determined by the members.(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the Health Secretary or the other members otherwise determine—(a) be present during any deliberation of the Advisory Board with respect to the matter, or(b) take part in any decision of the Board with respect to the matter.(5) For the purposes of the making of a determination by the members under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not—(a) be present during any deliberation of the other members for the purpose of making the determination, or(b) take part in the making by the other members of the determination.(6) A contravention of this clause does not invalidate any decision of the Advisory Board.
7 Effect of certain other Acts
(1) If by or under any Act provision is made—(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, orthe provision does not operate to disqualify the person from holding that office and also the office of an appointed member or from accepting and retaining any remuneration payable to the person under this Act as such a member.(b) prohibiting the person from engaging in employment outside the duties of that office,(2) The office of an appointed member is not, for the purposes of any Act, an office or place of profit under the Crown.
8 Remuneration
An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Health Secretary may from time to time determine in respect of the member.
9 Liability of members etc
A matter or thing done or omitted to be done by the Advisory Board, a member or any person acting under the direction of the Board does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this Act, subject the member or a person so acting personally to any action, liability, claim or demand.
10 General procedure
The procedure for the calling of meetings of the Advisory Board and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Board.
11 Quorum
The quorum for a meeting of the Advisory Board is a majority of the members for the time being.
12 Presiding member
(1) The Chairperson of the Advisory Board or, in the absence of the Chairperson, another member elected as Chairperson for the meeting by the members present is to preside at a meeting of the Board.(2) The person presiding at any meeting of the Advisory Board has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
13 Voting
A decision supported by a majority of the votes cast at a meeting of the Advisory Board at which a quorum is present is the decision of the Board.
14 First meeting of Advisory Board
The Health Secretary is to call the first meeting of the Advisory Board in such manner as the Health Secretary thinks fit.
sch 6: Rep 1999 No 85, Sch 4. Ins 2006 No 2, Sch 2 [62]. Am 2018 No 2, Sch 2 [8]–[11].
Schedule 6A National Health Funding Pool and Administration
Part 1 Preliminary
1 Interpretation
(1) In this Schedule—Administrator means the Administrator of the National Health Funding Pool appointed under clause 3 and under the corresponding provision of the laws of the Commonwealth and the other States.COAG means the Council of Australian Governments.local hospital network means an organisation that is a local hospital network (however described) for the purposes of the National Health Reform Agreement.Note—In New South Wales, local health districts, specialty network governed health corporations and affiliated health organisations declared to be networks under section 62B of the Act are local hospital networks for the purposes of the National Health Reform Agreement.National Health Funding Pool means the combined State Pool Accounts for each State.National Health Reform Agreement means the National Health Reform Agreement between the Commonwealth and the States that was agreed to by COAG on 2 August 2011, as amended from time to time.responsible Minister for a jurisdiction means the relevant Minister with portfolio responsibility for the administration of the provision of this Schedule in which the expression occurs (or of the corresponding provision of the laws of the Commonwealth and the other States).Note—See also clause 27.Standing Council on Health means (subject to subclause (2)) the Ministerial Council by that name or, if there is no such Ministerial Council, the standing Ministerial Council established or recognised by COAG whose members include all Ministers in Australia having portfolio responsibility for health.State includes the Australian Capital Territory and the Northern Territory.State Managed Fund of a State means a bank account or fund established or designated by the State for the purposes of health funding under the National Health Reform Agreement that is required to be undertaken in the State through a State Managed Fund.State Pool Account of a State means the bank account established by the State under Part 3 or under the corresponding provisions of the law of another State.Note—Function and exercise of a function are defined in the Dictionary to the Act.(2) The Standing Council on Health, when acting under this Schedule, is to be constituted only by a single Minister for the Commonwealth and a single Minister for each of the States, and any reference in this Schedule to a member of that Council is to be construed as a reference to those Ministerial members only.(3) If there are 2 or more Ministers for the Commonwealth or for a State who are members of the Standing Council on Health, the relevant Minister for the purposes of this Schedule is the Minister having primary portfolio responsibility for health in his or her jurisdiction.(4) A reference in this Schedule to the agreement of, or a request by, a member of the Standing Council on Health is a reference to an agreement or request in writing.(5) This Schedule is to be interpreted in accordance with Schedule 7 to the Health Practitioner Regulation National Law (NSW) and, for that purpose, Schedule 7 applies as if references to this Law or a Queensland Act were references to this Schedule or an Act of this jurisdiction, and with all other necessary modifications.(6) The Interpretation Act 1987 does not apply to or in respect of this Schedule.
Part 2 Administrator of the National Health Funding Pool
2 The office of Administrator
(1) The office of Administrator of the National Health Funding Pool is established by this Schedule.(2) It is the intention of Parliament that the same individual holds the office established under subclause (1) and under the corresponding provision of the laws of the Commonwealth and the other States.(3) The Administrator appointed under this Schedule may exercise and perform the functions of the Administrator in relation to—(a) one jurisdiction, or(b) 2 or more or all jurisdictions collectively.(4) A reference in a provision of this Schedule (other than in clause 8 (1) and Part 3) to a function of the Administrator under this Schedule includes a reference to a function of the Administrator under the corresponding provision of the laws of the Commonwealth and the other States.
3 Appointment of Administrator
(1) The Minister for this jurisdiction who is a member of the Standing Council on Health is to appoint an individual to the office of the Administrator of the National Health Funding Pool under this Schedule.(2) Before the appointment is made, the Chair of the Standing Council on Health is to give each member of the Council an opportunity to nominate an individual for appointment.(3) An appointment is not to be made unless all the members of the Standing Council on Health have agreed on the individual who will be appointed as Administrator, the date that the appointment will take effect, the period of appointment and the conditions of appointment.(4) The appointment is to be made by instrument in writing.(5) The Administrator is to be appointed (subject to subclause (3)) for the period, not exceeding 5 years, and on the conditions specified in his or her instrument of appointment, but is eligible for re-appointment.(6) The Administrator is entitled to the remuneration determined in accordance with the law of the Commonwealth.
4 Suspension of Administrator
(1) The Chair of the Standing Council on Health is required to suspend the Administrator from office if requested to do so by—(a) at least 3 members of the Council who are Ministers of a State, or(b) the member of the Council who is a Minister of the Commonwealth.(2) A member of the Standing Council on Health is not to request the suspension of the Administrator unless the member is satisfied that the Administrator—(a) is, because of any physical or mental incapacity or otherwise, unable to perform his or her functions satisfactorily, or(b) has failed to comply with his or her obligations or duties as Administrator, or(c) has been accused or convicted of an offence that carries a penalty of imprisonment, or(d) has or may become bankrupt.(3) A suspension is to be effected by an instrument in writing and is to be notified by the Chair of the Standing Council on Health to all members of the Council.(4) A suspension is terminated after a period of suspension of 60 days unless before the end of that period the Administrator is removed or resigns from office or a majority of the members of the Standing Council on Health—(a) terminate the suspension, or(b) extend the suspension for a specified further period.(5) Despite subclause (1), the Chair of the Standing Council on Health is not to suspend the Administrator from office within the period of 90 days after an earlier period of suspension was terminated unless a majority of the members of the Council request the Chair to do so.
5 Removal or resignation of Administrator
(1) The Minister for this jurisdiction who is a member of the Standing Council on Health is required to remove the Administrator from office if a majority of the members of the Council agree to the Administrator’s removal from office.(2) The Administrator is to be removed from office by an instrument in writing that takes effect on the date agreed to by the majority of the members of the Standing Council on Health.(3) The Administrator may resign as Administrator by notice in writing to the Chair of the Standing Council on Health.(4) The resignation of the Administrator takes effect on the date notified by the Chair of the Standing Council on Health to all members of the Council.
6 Acting Administrator
(1) The Chair of the Standing Council on Health may, from time to time, appoint an individual to act as the Administrator during any period when the office is vacant or the holder of the office is suspended or absent from duty.(2) Any such appointment may only be made from a panel of persons, and in accordance with the procedure, agreed to by all the members of the Standing Council on Health.Note—The applied provisions of Schedule 7 to the Health Practitioner Regulation National Law (NSW) (clause 27) contain additional provisions relating to acting appointments that have effect subject to this clause.
7 Provision of staff and facilities for Administrator
(1) Staff and facilities to assist the Administrator in exercising or performing his or her functions under this Schedule are to be provided by the National Health Funding Body constituted under the National Health Reform Act 2011 of the Commonwealth.(2) The Administrator is not entitled to delegate a function conferred on the Administrator under this Schedule to that body, to any such member of staff or to any other person or body.
8 Functions of Administrator
(1) The Administrator is—(a) to calculate and advise the Treasurer of the Commonwealth of the amounts required to be paid by the Commonwealth into each State Pool Account of the National Health Funding Pool under the National Health Reform Agreement (including advice on any reconciliation of those amounts based on subsequent actual service delivery), and(b) to monitor State payments into each State Pool Account for the purposes of Part 4, and(c) to make payments from each State Pool Account in accordance with the directions of the State concerned, and(d) to report publicly on the payments made into and from each State Pool Account and other matters on which the Administrator is required to report under this Schedule, and(e) to exercise or perform any other functions conferred on the Administrator under this Schedule.Note—The corresponding provisions of the laws of the Commonwealth provide that the functions of the Administrator include monitoring Commonwealth payments into each State Pool Account for the purposes of Part 4.(2) The Administrator and the body and staff assisting the Administrator are not subject to the control or direction of any Minister of the Commonwealth in relation to the exercise or performance of the Administrator’s functions under this Schedule.(3) However, the Administrator is required to comply with any directions given by COAG in relation to the manner in which the Administrator exercises or performs his or her functions under this Schedule (including in relation to the preparation or provision of annual or monthly reports, financial statements or information under Part 4).(4) Directions given by COAG under subclause (3)—(a) are to be given in accordance with a written resolution of COAG passed in accordance with the procedures determined by COAG, and(b) are to be notified in writing to the Administrator, and(c) are to be made publicly available by the Administrator.(5) To avoid doubt, this Schedule is not intended—(a) to give the Commonwealth ownership or control of money in a State Pool Account, or(b) to affect the obligation of the Administrator under the law of a State to make payments from the State Pool Account of the State in accordance with the directions of the State.(6) To avoid doubt, the Administrator may have regard to information obtained in the exercise or performance of functions under the law of another jurisdiction in the exercise or performance of the Administrator’s functions under Part 4.
Part 3 State Pool Accounts—the National Health Funding Pool
9 Establishment of State Pool Accounts with Reserve Bank
(1) The Health Secretary is to open and maintain with the Reserve Bank of Australia a separate State bank account for the purpose of the National Health Reform Agreement.(2) The bank account is the State Pool Account established for the State for the purposes of this Schedule.(3) The State Pool Account is established as an account in the Special Deposits Account.(4) To avoid doubt, the State Pool Account and the money standing to the credit of the Account are under the control of the Health Secretary for the purposes of the application of relevant accounting standards.
10 Payments into State Pool Account
There is payable into the State Pool Account established for the State—(a) money paid to the State by the Commonwealth for payment into the State Pool Account under the National Health Reform Agreement, and(b) money made available by the State for the purposes of funding in the State through the State Pool Account under the National Health Reform Agreement, and(c) money paid to the State by another State for payment into the State Pool Account under the National Health Reform Agreement, and(d) interest paid on money deposited in the State Pool Account, unless directed to be paid into another bank account by the responsible Minister for the State.
11 Payments from State Pool Account
(1) There is payable from the State Pool Account established for the State amounts to fund the following in the State under the National Health Reform Agreement (including through a State Managed Fund)—(a) the services provided by local hospital networks,(b) health teaching, training and research provided by local hospital networks or other organisations,(c) any other matter that under that Agreement is to be funded through the National Health Funding Pool.(2) Payments of amounts from the State Pool Account established for the State are to be made by the Administrator strictly in accordance with the directions of the responsible Minister for the State, including on the amount of each payment, the party or account to which it is to be paid and the timing of the payment.(3) The Administrator is required to authorise personally each payment made from the State Pool Account.(4) The Administrator is, at the direction of the responsible Minister for the State, to repay any money paid by the State into the State Pool Account for the State that the responsible Minister is satisfied constitutes an overpayment into that Account.(5) This clause does not affect the payment from the State Pool Account of charges imposed by the Reserve Bank of Australia for the operation of that Account.(6) This clause does not require the payment for services and matters referred to in subclause (1) to be made only from the State Pool Account.(7) For the purposes of this clause, the funding of a local hospital network includes the funding of another party on behalf of the network for corporate or other services provided to the network by that other party.(8) If at any time when a payment from the State Pool Account is required to be made there is no Administrator or the Administrator is not available to make the payment at that time, the payment from that Account may be made by an official of this State who is directed by the responsible Minister for the State to make the payment.
12 State Managed Funds
The Health Secretary is to—(a) open and maintain a separate bank account, or(b) establish and maintain a separate fund, oras the State Managed Fund for the State for the purposes of health funding under the National Health Reform Agreement.(c) designate an existing bank account or fund,
13 Distribution of Commonwealth funding
(1) Directions by the responsible Minister for the State to the Administrator for payments from the State Pool Account are, in relation to the distribution of Commonwealth funding provided to the State under the National Health Reform Agreement, to be consistent with the advice provided by the Administrator to the Treasurer of the Commonwealth about the basis on which the Administrator has calculated the payments to be made into that Account by the Commonwealth.(2) This clause does not affect the obligation of the Administrator to make payments from the State Pool Account strictly in accordance with the directions of the responsible Minister for the State.
Part 4 Financial management and reporting
14 Financial management obligations of Administrator
The Administrator must—(a) develop and apply appropriate financial management policies and procedures with respect to the State Pool Accounts (including policies and procedures to ensure payments from those Accounts are made in accordance with the directions of the responsible Ministers), and(b) keep proper records in relation to the administration of the State Pool Accounts, including records of all payments made into and from those Accounts and the basis on which the payments were made, and(c) prepare the financial statements required by this Part in relation to the State Pool Accounts and arrange for the audit of those financial statements in accordance with this Part.
15 Monthly reports by Administrator
(1) The Administrator must provide monthly reports to the Commonwealth and each State containing the following information for the relevant month—(a) the amounts paid into each State Pool Account and State Managed Fund by the relevant State and the basis on which the payments were made,(b) the amounts paid into each State Pool Account by the Commonwealth and the basis on which the payments were made,(c) the amounts paid from each State Pool Account to local hospital networks, a State Managed Fund or other organisations or funds and the basis on which the payments were made,(d) the amounts paid from each State Managed Fund to local hospital networks or other organisations or funds and the basis on which the payments were made,(e) the number of public hospital services funded for each local hospital network (including a running financial year total) in accordance with the system of activity based funding,(f) the number of other public hospital services and functions funded from each State Pool Account or State Managed Fund (including a running financial year total).(2) A monthly report required to be provided to a jurisdiction under this clause is to be provided to the responsible Minister for that jurisdiction or to a body or officer notified to the Administrator by that Minister.(3) The Administrator is to make reports provided under this clause publicly available.
16 Annual report by Administrator
(1) The Administrator must, within 4 months after the end of each financial year, provide to the responsible Ministers an annual report on the exercise or performance of his or her functions under this Schedule during the financial year.(2) The annual report must include the following information for the relevant financial year—(a) the amounts paid into each State Pool Account and State Managed Fund by the relevant State and the basis on which the payments were made,(b) the amounts paid into each State Pool Account by the Commonwealth and the basis on which the payments were made,(c) the amounts paid from each State Pool Account to local hospital networks, a State Managed Fund or other organisations or funds and the basis on which the payments were made,(d) the amounts paid from each State Managed Fund to local hospital networks or other organisations or funds and the basis on which the payments were made,(e) the number of public hospital services funded for each local hospital network in accordance with the system of activity based funding,(f) the number of other public hospital services and functions funded from each State Pool Account or State Managed Fund.(3) The annual report is to be accompanied by—(a) an audited financial statement for each State Pool Account, and(b) a financial statement that combines the audited financial statements for each State Pool Account.(4) A responsible Minister must, as soon as practicable after receiving an annual report under this clause, cause a copy of the report to be tabled in the Parliament of the responsible Minister’s jurisdiction.
17 Administrator to prepare financial statements for State Pool Accounts
The Administrator must, after each financial year, prepare—(a) a financial statement for each State Pool Account that details financial transactions during that financial year, and(b) a combined financial statement that consists of the financial statements for each State Pool Account for the financial year.
18 Audit of financial statements
A financial statement under this Part for the State Pool Account of a State is to be audited by the Auditor-General of that State in accordance with the relevant legislation of that State relating to financial audit by the Auditor-General.
19 Performance audits
(1) For the purposes of this clause, a performance audit is an audit by the Auditor-General of a jurisdiction of the exercise or performance of the functions of the Administrator in relation to that jurisdiction to determine whether the Administrator is acting effectively, economically, efficiently and in compliance with all relevant laws.(2) Before the Auditor-General of this jurisdiction conducts a performance audit, the Auditor-General must notify the Auditors-General of all other jurisdictions of his or her intention to conduct the proposed audit.(3) Auditors-General who are conducting performance audits at the same time are to make arrangements to co-ordinate the conduct of those audits in relation to any requirements imposed on the Administrator.(4) A performance audit is to be conducted by the Auditor-General of this jurisdiction in accordance with the laws of this jurisdiction relating to the exercise or performance of the functions of the Auditor-General.
20 States to provide Administrator with information about State Managed Funds
(1) The responsible Minister for a State is to provide information to the Administrator about any of the following matters relating to the State Managed Fund of the State that the Administrator requires for the preparation of reports and financial statements under this Part—(a) the amounts paid by the State into the State Managed Fund and the basis on which the payments were made,(b) the amounts paid by the State from the State Managed Fund to local hospital networks or other organisations or funds and the basis on which the payments were made,(c) public hospital services and functions that are funded from the State Managed Fund.(2) The information is to be provided by the time requested by the Administrator.
21 Provision of information generally
(1) The Administrator is required to provide to the responsible Minister for a jurisdiction any information requested by that Minister that relates to that jurisdiction.(2) The information is to be provided by the time requested by that responsible Minister.(3) The Administrator is required to provide to the responsible Ministers of all jurisdictions a copy of advice provided by the Administrator to the Treasurer of the Commonwealth about the basis on which the Administrator has calculated the payments to be made into State Pool Accounts by the Commonwealth.(4) The Administrator may at any time provide any information that relates to a jurisdiction to the responsible Minister for that jurisdiction.(5) Any information relating to a jurisdiction that is provided by the Administrator to another jurisdiction may only be publicly released by that other jurisdiction in accordance with arrangements approved by the responsible Minister for the jurisdiction to which the information relates.
Part 5 Miscellaneous
22 Exclusion of legislation of this jurisdiction
The following Acts of this jurisdiction do not apply to or in respect of the Administrator or any function exercised or performed by the Administrator—(c) the Ombudsman Act 1974,(e) the Public Finance and Audit Act 1983,(f) the State Records Act 1998.
23 Application of Commonwealth Acts
(1) The following Acts apply (subject to subclause (2)) as laws of this jurisdiction to or in respect of the Administrator and any function exercised or performed by the Administrator—(a) the Archives Act 1983 of the Commonwealth,(b) the Australian Information Commissioner Act 2010 of the Commonwealth,(c) the Freedom of Information Act 1982 of the Commonwealth,(d) the Ombudsman Act 1976 of the Commonwealth,(e) the Privacy Act 1988 of the Commonwealth.(2) Each of those Acts so applies subject to the modifications made by regulations made under the National Health Reform Act 2011 of the Commonwealth with the agreement of all the members of the Standing Council on Health.(3) Until regulations referred to in subclause (2) are made, subclause (1) does not have effect and instead the legislation referred to in clause 22 (a)–(d) and (f) applies to or in respect of the Administrator and any function exercised or performed by the Administrator.
24 Extraterritorial operation of Act
It is the intention of Parliament that the operation of this Schedule is to include, as far as possible, operation in relation to the following—(a) things situated in or outside the territorial limits of this jurisdiction,(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction,(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Schedule, be governed or otherwise affected by the law of another jurisdiction.
25 Schedule to bind Crown
This Schedule binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
26 Delegation of functions of responsible Minister
(1) The responsible Minister for this State may delegate to an authority or officer of the State the responsible Minister’s functions under this Schedule.(2) This clause does not apply to the functions of a Minister under Part 2.
27 Transitional and validation provisions
(1) If, on the commencement of this Schedule, corresponding provisions to this Schedule have not been enacted by another jurisdiction, the responsible Minister for that jurisdiction for the purposes of this Schedule is the Minister of that jurisdiction with portfolio responsibility for health.(2) Any thing done by a Minister of the Commonwealth or of a State before the commencement of this Schedule that would have been validly done if this Schedule, and the corresponding provisions of other jurisdictions, had been in force at the time is taken to have been validly done.
sch 6A: Ins 2012 No 36, Sch 1 [5]. Am 2014 No 33, Sch 3.13 [3].
Schedule 7 Savings, transitional and other provisions
(Section 141)
sch 7, hdg: Am 2010 No 97, Sch 1.1 [44]; 2012 No 36, Sch 1 [1].
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.(2) If the regulations so provide, any such provision may—(a) have effect despite any specified provision of this Act (including a provision of this Schedule), and(b) take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as—(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of this Act
Division 1 General
2 Definitions
In this Part—associated organisation means an organisation or institution mentioned in the Fourth Schedule to the repealed hospitals Act as in force immediately before its repeal.former area health board means an area health board constituted under section 12 of the repealed area Act and as constituted immediately before its repeal.former area health service means an area health service constituted by section 5 of the repealed area Act and specified in Schedule 2 of that Act as in force immediately before its repeal.former health organisation means—(a) an associated organisation, or(b) a former area health service, or(c) an incorporated hospital, or(d) a separate institution.incorporated health service means any of the following incorporated hospitals—(a) Far West Health Service,(b) Greater Murray Health Service,(c) Macquarie Health Service,(d) Mid North Coast Health Service,(e) Mid Western Health Service,(f) New England Health Service,(g) Northern Rivers Health Service,(h) Southern Health Service.incorporated hospital means a hospital mentioned in the Second Schedule to the repealed hospitals Act as in force immediately before its repeal.repealed area Act means the Area Health Services Act 1986 as in force immediately before its repeal.repealed hospitals Act means the Public Hospitals Act 1929 as in force immediately before its repeal.separate institution means an institution mentioned in the Third Schedule to the repealed hospitals Act as in force immediately before its repeal.successor—(a) of a former area health service means an area health service constituted under this Act on the commencement of Schedule 1 and having the same name as the former area health service, or(b) of an incorporated hospital that was an incorporated health service means an area health service constituted under this Act on the commencement of Schedule 1 and having the same (or substantially the same) name as the incorporated health service, or(c) of an incorporated hospital that was not an incorporated health service means a statutory health corporation constituted under this Act on the commencement of Schedule 2 and having the same (or substantially the same) name as the incorporated hospital, or(d) of a separate institution means an affiliated health organisation specified in Schedule 3 on its commencement having the same name (or having a different name, but being substantially the same organisation or institution) as the separate institution, or(e) of an associated organisation means an affiliated health organisation specified in Schedule 3 on its commencement and having the same name (or having a different name, but being substantially the same organisation or institution) as an associated organisation.
Division 2 Former area health services
3 Dissolution of former area health services
A former area health service—(a) is dissolved on and from the repeal of the repealed area Act, and(b) its assets, rights and liabilities immediately before its dissolution become assets, rights and liabilities of its successor.
4 Agreements by former area health services
Any agreement between a former area health service and any person that was in force immediately before the dissolution of the former area health service is taken on and from that dissolution to have been entered into between its successor and the person.
5 Delegations by former area health services
Any delegation given by a former area health service under the repealed area Act and in force immediately before the dissolution of that service is taken on and from that dissolution to have been given by its successor.
6 Staff of former area health service
A member of staff of a former area health service is (until other provision is duly made under any Act or law) to be employed as a member of staff of its successor in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the person remained a member of staff of the former area health service and that service not been dissolved.
7 By-laws under repealed area Act
The by-laws in force under section 32 of the repealed area Act immediately before its repeal are taken to have been made under section 39 of this Act. However, this does not prevent the future amendment or repeal of those by-laws.
8 Chief executive officers of former area health boards
(1) A person holding office as a chief executive officer of a former area health board immediately before its dissolution is taken to have been appointed under this Act as the chief executive officer of its successor. Such an appointment is for the remainder of the period of appointment to the position that is abolished by reason of the dissolution of the former area health service.(2) Appointment by virtue of this clause does not change the contract of employment under Part 2A of the Public Sector Management Act 1988 between the person as an executive officer and the executive officer’s employer. The contract is taken to be with the successor of the former area health service.
9 Members of area health boards of former area health services
Each member of the former area health board (including the chief executive officer) of a former area health service holding office immediately before the dissolution of the service is taken to hold office as a member of the area health board of its successor. Such an appointment is for the remainder of the period of appointment to the office that is abolished by reason of the dissolution of the former area health service.
10 Successor same legal entity as former area health service
Subject to this Part, on the dissolution of a former area health service, its successor is taken for all purposes (including the rules of private international law) to be a continuation of and the same legal entity as the former area health service.
11 References to former area health services
(1) A reference in any other Act or instrument made under any other Act or in any instrument of any kind—(a) to any particular former area health service is taken to be a reference to its successor, and(b) to an area health service constituted under the repealed area Act is taken to be a reference to an area health service constituted under this Act.(2) This clause does not apply to the State Public Service Superannuation Act 1985.
Division 3 Incorporated health service
12 Dissolution of incorporated health service
An incorporated health service—(a) is dissolved on and from the repeal of the repealed hospitals Act, and(b) its assets, rights and liabilities immediately before its dissolution become assets, rights and liabilities of its successor.
13 Assets, rights, liabilities, staff and other things of certain hospitals taken to belong to certain incorporated health services
(1) Wyalong Health Service On and from 16 March 1996—(a) the Wyalong Health Service is taken to have been transferred to the Greater Murray Health Service, and(b) the assets, rights and liabilities relating solely or principally to the operation of the Wyalong Health Service are taken to have been the assets, rights and liabilities of the Greater Murray Health Service, and(c) a member of staff at the Wyalong Health Service is taken to have been employed as a member of staff of the Greater Murray Health Service in accordance with any relevant statutory provisions, awards, agreements and determinations that applied to the person during the relevant period, and(d) any agreement between the hospital owner and another person relating solely or principally to the operation of the Wyalong Health Service is taken to be an agreement between the Greater Murray Health Service and the person, and(e) any delegation given by the hospital owner in respect of the Wyalong Health Service is taken to have been given by the Greater Murray Health Service, and(f) any by-laws in force under section 28 of the repealed hospitals Act in respect of the Wyalong Health Service are taken to have been made by the Greater Murray Health Service, and(g) any act, matter or thing done by the Greater Murray Health Service during the relevant period in relation to the Wyalong Health Service that could have been done validly by the hospital owner is validated to the extent of any invalidity.(2) Balranald District Hospital and Wentworth District Hospital and Health Service On and from 16 March 1996—(a) the Balranald District Hospital and the Wentworth District Hospital and Health Service are taken to have been transferred to the Far West Health Service, and(b) the assets, rights and liabilities relating solely or principally to the operation of the hospitals are taken to have been the assets, rights and liabilities of the Far West Health Service, and(c) a member of staff at either hospital is taken to have been employed as a member of staff of the Far West Health Service in accordance with any relevant statutory provisions, awards, agreements and determinations that applied to the person during the relevant period, and(d) any agreement between the hospital owner and another person relating solely or principally to the operation of the hospital concerned is taken to be an agreement between the Far West Health Service and the person, and(e) any delegation given by the hospital owner in respect of the hospital concerned is taken to have been given by the Far West Health Service, and(f) any by-laws in force under section 28 of the repealed hospitals Act in respect of either hospital are taken to have been made by the Far West Health Service, and(g) any act, matter or thing done by the Far West Health Service during the relevant period in relation to the hospitals that could have been done validly by the hospital owner is validated to the extent of any invalidity.(3) Minister may confirm transfer The Minister may, by notice in writing, confirm a transfer of assets, rights, liabilities or staff by operation of this Part. Such a notice is conclusive evidence of that transfer.(4) Definitions In this clause—Balranald District Hospital means the hospital known as the Balranald District Hospital located at Balranald.Far West Health Service means the incorporated health service named the Far West Health Service.Greater Murray Health Service means the incorporated health service named the Greater Murray Health Service.hospital owner means—(a) in relation to the Wyalong Health Service—the Mid Western Health Service, and(b) in relation to the Balranald District Hospital and the Wentworth District Hospital and Health Service—the Greater Murray Health Service.relevant period means the period commencing on 16 March 1996 and ending on the date of the repeal of the repealed hospitals Act.Wentworth District Hospital and Health Service means the hospital known as the Wentworth District Hospital and Health Service located at Wentworth.Wyalong Health Service means the hospital known as the Wyalong Health Service located at West Wyalong.
14 Agreements by incorporated health services
Any agreement between an incorporated health service and any person that was in force immediately before the dissolution of the incorporated health service is taken on and from that dissolution to have been entered into between its successor and the person.
15 Delegations by incorporated health services
Any delegation given by an incorporated health service under the repealed hospitals Act and in force immediately before the dissolution of that service is taken on and from that dissolution to have been given by its successor.
16 Staff of incorporated health service
A member of staff of an incorporated health service is (until other provision is duly made under any Act or law) to be employed as a member of staff of its successor in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the person remained a member of staff of the incorporated health service and that service not been dissolved.
17 By-laws under repealed hospitals Act
The by-laws in force under section 28 of the repealed hospitals Act immediately before its repeal in relation to an incorporated health service are taken to have been made under section 39 of this Act. However, this does not prevent the future amendment or repeal of those by-laws.
18 Chief executive officers of incorporated health services
(1) A person holding office as a chief executive officer of an incorporated health service immediately before its dissolution is taken to have been appointed under this Act as the chief executive officer of its successor. Such an appointment is for the remainder of the period of appointment to the position that is abolished by reason of the dissolution of the incorporated health service.(2) Appointment by virtue of this clause does not change the terms of the contract of employment between the person as an executive officer and the executive officer’s employer.(3) However—(a) the contract is taken to be with the successor of the incorporated health service, and(b) the chief executive officer’s appointment is also taken to be an appointment made under section 28 of this Act and therefore to be an appointment to which Part 2A (but not Part 2) of the Public Sector Management Act 1988 applies.
19 Members of board of directors of incorporated health services
Each member of the board of directors (including the chief executive officer) of an incorporated health service holding office immediately before the dissolution of the service is taken to hold office as a member of the area health board of its successor. Such an appointment is for the remainder of the period of appointment to the office that is abolished by reason of the dissolution of the incorporated health service.
20 Successor same legal entity as incorporated health service
Subject to this Part, on the dissolution of an incorporated health service, its successor is taken for all purposes (including the rules of private international law) to be a continuation of and the same legal entity as the incorporated health service.
21 References to incorporated health services
(1) A reference in any other Act or instrument made under any other Act or in any instrument of any kind to any particular incorporated hospital that was an incorporated health service is taken to be a reference to its successor.(2) This clause does not apply to the State Public Service Superannuation Act 1985.
Division 4 Incorporated hospitals other than incorporated health services
22 Application of this Division
This Division applies to any incorporated hospital other than an incorporated health service.
23 Dissolution of incorporated hospital
An incorporated hospital—(a) is dissolved on and from the repeal of the repealed hospitals Act, and(b) its assets, rights and liabilities immediately before its dissolution become assets, rights and liabilities of its successor.
24 Agreements by incorporated hospitals
Any agreement between an incorporated hospital and any person that was in force immediately before the dissolution of the incorporated hospital is taken on and from that dissolution to have been entered into between its successor and the person.
25 Delegations by former incorporated hospitals
Any delegation given by an incorporated hospital under the repealed hospitals Act and in force immediately before the dissolution of that service is taken on and from that dissolution to have been given by its successor.
26 Staff of incorporated hospital
A member of staff of an incorporated hospital is (until other provision is duly made under any Act or law) to be employed as a member of staff of its successor in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the person had the person remained a member of staff of the incorporated hospital.
27 By-laws under repealed hospitals Act
The by-laws in force under section 28 of the repealed hospitals Act immediately before its repeal in relation to an incorporated hospital are taken to have been made under section 60 of this Act. However, this does not prevent the future amendment or repeal of those by-laws.
28 Chief executive officers of incorporated hospitals
(1) A person holding office as a chief executive officer of an incorporated health service immediately before its dissolution is taken to have been appointed under this Act as the chief executive officer of its successor. Such an appointment is for the remainder of the period of appointment to the position that is abolished by reason of the dissolution of the incorporated hospital.(2) Appointment by virtue of this clause does not change the terms of the contract of employment between the person as an executive officer and the executive officer’s employer.(3) However—(a) the contract is taken to be with the successor of the incorporated hospital, and(b) the chief executive officer’s appointment is taken, for the purposes of section 51—(i) if the officer’s current appointment is to a position referred to in Schedule 3B to the Public Sector Management Act 1988—to be an appointment to which Part 2A of that Act applies, or(ii) in any other case—to be an appointment to which Part 2A of that Act does not apply.
29 Members of board of directors of incorporated hospitals
Each member of the board of directors (including the chief executive officer) of an incorporated hospital holding office immediately before the dissolution of the hospital is taken to hold office as a member of the health corporation board of its successor. Such an appointment is for the remainder of the period of appointment to the office that is abolished by reason of the dissolution of the incorporated hospital.
30 Preservation of existing functions
(1) The successor of an incorporated hospital has the same functions as the incorporated hospital had immediately before its dissolution.(2) However, nothing in this clause prevents the future alteration of the functions of the successor, by or under this Act.
31 Successor same legal entity as incorporated hospital
Subject to this Part, on the dissolution of an incorporated hospital, its successor is taken for all purposes (including the rules of private international law) to be a continuation of and the same legal entity as the incorporated hospital.
32 References to incorporated hospitals
(1) A reference in any other Act or instrument made under any other Act or in any instrument of any kind—(a) to any particular incorporated hospital is taken to be a reference to its successor, and(b) to an incorporated hospital constituted under the repealed hospitals Act is taken to be a reference to a statutory health corporation constituted under this Act.(2) This clause does not apply to the State Public Service Superannuation Act 1985.
Division 5 Separate institutions
33 By-laws under repealed hospitals Act
Any by-laws made by a separate institution in force under section 29AE of the repealed hospitals Act immediately before its repeal are taken to have been made under section 63 of this Act by its successor. However, this does not prevent the future amendment or repeal of those by-laws.
34 Borrowing by separate institutions
The repeal of sections 37 and 37A of the repealed hospitals Act does not affect any borrowing by a separate institution effected before the repeal of the repealed hospitals Act. Those provisions continue to apply to that borrowing until such time as it is repaid by its successor.
35 Funding agreements under section 17A of repealed hospitals Act
Any agreement made under section 17A of the repealed hospitals Act in relation to a separate institution that is in force on the repeal of that Act is taken to be an agreement made under section 128 of this Act in relation to its successor.
36 References to separate institutions
(1) A reference in any other Act or instrument made under any other Act or in any instrument of any kind to a separate institution is taken to be a reference to an affiliated health organisation.(2) This clause does not apply to the State Public Service Superannuation Act 1985.
Division 6 Associated organisations
37 Borrowing by associated organisations
The repeal of sections 37 and 37A of the repealed hospitals Act does not affect any borrowing by an associated organisation effected before the repeal of the repealed hospitals Act. Those provisions continue to apply to that borrowing until such time as it is repaid by its successor.
38 References to associated organisations
(1) A reference in any other Act or instrument made under any other Act or in any instrument of any kind to an associated organisation is taken to be a reference to an affiliated health organisation.(2) This clause does not apply to the State Public Service Superannuation Act 1985.
Division 7 Miscellaneous
39 Existing Samaritan Funds
(1) Any Samaritan Fund established under section 40A of the repealed hospitals Act and in effect immediately before its repeal is taken to be a Samaritan Fund established under section 133 of this Act by the public health organisation that controls the hospital in respect of which the original Samaritan Fund was established.(2) A reference in this clause to a public health organisation includes a reference to the Crown in relation to any public hospital controlled by the Crown (including the Minister or the Health Administration Corporation).
40 Debts owing by patients of public hospitals under repealed hospitals Act
(1) A debt owing to a board under section 30 or 30A of the repealed hospitals Act is taken to be a debt owing under section 70 or 72 (as the case may be) of this Act to the public health organisation that controls the hospital in respect of which the debt is owed.(2) A reference in this clause to a public health organisation includes a reference to the Crown in relation to any public hospital controlled by the Crown (including the Minister or the Health Administration Corporation).
41 Employment matters under repealed area Act and repealed hospitals Act
(1) In this clause—existing employment agreement or determination means—(a) any agreement or determination in respect of officers or employees of a former area health service or former area health services made under section 26 of the repealed area Act that is in force immediately before the repeal of that section, and(b) any agreement or determination in respect of officers or employees of a hospital or hospitals made under section 40BA of the repealed hospitals Act that is in force immediately before the repeal of that section.hospital has the same meaning as it had in section 40BA of the repealed hospitals Act immediately before its repeal.(2) Any existing employment agreement or determination is taken to have been made under section 115 of this Act and therefore binds the successor of the former area health service or hospital to which it originally related.(3) Nothing in this clause prevents the making of any future agreement or determination under section 115 of this Act.
42 Arbitrations under repealed hospitals Act
(1) The provisions of Part 5C of the repealed hospitals Act, as in force immediately before its repeal, continue to apply to arbitrations under that Part that have not been determined before that repeal.(2) For the purposes of subclause (1), any reference in Part 5C of the repealed hospitals Act (or any instrument made under that Part)—(a) is, to the extent that it applies to any particular former area health service, incorporated hospital or separate institution (or governing body), to be read as a reference to the successor of the service, hospital or institution concerned, and(b) to former area health services, incorporated hospitals or separate institutions (or their governing bodies) generally is to be read as a reference to public health organisations.
43 Appeals under repealed hospitals Act
(1) The provisions of Part 6B of the repealed hospitals Act, as in force immediately before its repeal, continue to apply to appeals under that Part that have not been determined before that repeal.(2) For the purposes of subclause (1), any reference in Part 6B of the repealed hospitals Act (or any instrument under that Part) to the board is to be read as a reference to the public health organisation that is the successor to the former area health service, incorporated hospital, separate institution or associated organisation concerned.
44 Approved standard contracts under repealed hospitals Act
(1) Any standard conditions approved by the Minister under section 29RB of the repealed hospitals Act and in force immediately before the repeal of that Act are taken to be standard conditions approved under section 87 of this Act.(2) Any reference in those standard conditions—(a) to any particular former area health service, incorporated hospital or separate institution is to be read as a reference to the successor of the service, hospital or institution, or(b) to former area health services, incorporated hospitals or separate institutions generally is to be read as a reference to area health services, statutory health corporations and affiliated health organisations, respectively, within the meaning of this Act.(3) For the purposes of section 89 (3), 5 years is taken to be the period specified by an order of the Minister made under section 29RB of the repealed hospitals Act approving any such standard conditions.(4) Nothing in this clause prevents the making of any future orders under section 87 of this Act approving standard conditions.
44A Determination under repealed hospitals Act
(1) In this clause—existing determination means the Public Hospitals (Visiting Medical Officers—Sessional Contracts) Determination 1994, made under Division 2 of Part 5C of the Public Hospitals Act 1929 and which, immediately before the repeal of that Act, applied to sessional visiting medical officers by operation of section 29R of that Act.(2) The existing determination is taken to be a determination made under Division 3 of Part 2 of Chapter 8 and applying, by virtue of section 98, in relation to any service contract between an organisation and a visiting medical officer providing his or her services as an individual.(3) A reference in that determination—(a) to any particular former area health service, incorporated hospital or separate institution is to be read as a reference to the successor of the service, hospital or institution, as the case may be, or(b) to former area health services, incorporated hospitals or separate institutions generally is to be read as a reference to area health services, statutory health corporations and affiliated health organisations, respectively.(4) On and from a date appointed by proclamation for the purposes of this subclause, the existing determination is taken to also be a determination made under Division 3 of Part 2 of Chapter 8 and applying, by virtue of section 98, in relation to any service contract between an organisation and a practice company through which a visiting medical officer provides services (in accordance with section 85).Editorial note—Date appointed for the purposes of this subclause: 30.6.2000—see Gazette No 81 of 30.6.2000, p 5354.(5) On and from that date, a reference in that determination—(a) to any particular former area health service, incorporated hospital or separate institution is to be read as a reference to the successor of the service, hospital or institution, as the case may be, or(b) to former area health services, incorporated hospitals or separate institutions generally is to be read as a reference to area health services, statutory health corporations and affiliated health organisations, respectively, or(c) to a contract with or payment to a visiting medical officer is to be read as including a reference to a contract with or payment to a visiting medical officer’s practice company, or(d) to the termination of a sessional contract is to be read as including a reference to the termination of a visiting medical officer’s appointment as a visiting medical officer.(6) Nothing in this clause prevents the making of any future orders under section 87 approving standard conditions.
45 Scale of fees under repealed hospitals Act
(1) Any scale of fees fixed by the Minister under section 30 (8) of the repealed hospitals Act and in force on the date of the repeal of that Act is taken to be a scale of fees fixed by the Minister under section 69 of this Act.(2) Nothing in this clause prevents the future fixing, amendment or revocation of a scale of fees under section 69 of this Act.
46 Descriptions of parts of areas of area health services
Until a regulation made under section 18 (2) of this Act provides otherwise—(a) a reference in column 2 of Schedule 1 to the area “Sydney and South Sydney (part)” in relation to the Central Sydney Area Health Service is a reference to the western sector of the cities of Sydney and South Sydney with the boundaries as shown on the map deposited in the principal office of the Department of Health marked “Area Health Service Boundaries—Cities of Sydney and South Sydney”, and(b) a reference in column 2 of Schedule 1 to the area “Sydney and South Sydney (part)” in relation to the South Eastern Sydney Area Health Service is a reference to the eastern sector of the cities of Sydney and South Sydney with the boundaries as shown on the map deposited in the principal office of the Department of Health marked “Area Health Service Boundaries—Cities of Sydney and South Sydney”.
47 Effect of amendments to other Acts on existing appointments
An amendment made by Schedule 6 to a provision of any other Act does not affect the validity of any appointment made under that provision before its amendment by that Schedule.
48 Existing visiting practitioners
(1) Subject to this Schedule, a person who was a visiting practitioner within the meaning of the repealed hospitals Act of a former health organisation immediately before the repeal of that Act is taken to be a visiting practitioner under this Act appointed as such by the successor of the organisation.(2) Section 100 is taken not to apply to any conviction for a serious sex or violence offence of a person referred to in subclause (1) if, before the person was appointed as a visiting practitioner by the former health organisation concerned, the Director-General (or a person acting on behalf of the Director-General) notified the chief executive officer or the governing body of the organisation that, despite the conviction, he or she approved of (or did not object to) the person being appointed as a visiting practitioner.
49 Disclosure of serious sex or violence offences by existing employees
(1) Section 118 is taken not to apply to any conviction for a serious sex or violence offence of an existing employee if, before the person was employed by the former health organisation concerned, the Director-General (or a person acting on behalf of the Director-General) notified the chief executive officer or the governing body of the organisation that, despite the conviction, he or she approved of (or did not object to) the person being employed by the organisation.(2) In this clause—existing employee means a person who, by operation of this Schedule, is taken to be an employee of the successor of a former health organisation.
50 Model by-laws for former area health services preserved
(1) Any order of the Minister setting the terms of model by-laws made under section 32 of the former area Act that was published in the Gazette and was in force immediately before the repeal of that Act is taken—(a) to be an order of the Minister made under section 39 (2) of this Act, and(b) to set out model by-laws in respect of which the Minister has received advice from the Medical Services Committee for the purposes of section 39 (3) (a) of this Act.(2) Any reference in any such by-laws—(a) to an area health service is taken to be a reference to an area health service within the meaning of this Act, and(b) to an area health board is taken to be a reference to an area health board within the meaning of this Act, and(c) to a chief executive officer of an area health board is taken to be a reference to a chief executive officer of an area health service within the meaning of this Act, and(d) to a visiting practitioner in relation to a hospital under the control of an area health service is taken to be a visiting practitioner of an area health service within the meaning of this Act, and(e) to the clinical privileges of a visiting practitioner is taken to be a reference to clinical privileges within the meaning of section 105 (2) of this Act.(3) Nothing in this clause prevents the making of a future order under section 39 (2) of this Act.
51 Minister entitled to certain payments under Local Government and Other Authorities (Superannuation) Act 1927
(cf PH Act s 40BB)
(1) Any money that would, but for this subclause, be payable to a public health organisation under section 15Y or 15Z of the Local Government and Other Authorities (Superannuation) Act 1927 is to be paid to the Minister instead.(2) The Minister may, on the written application of a contributing employer, pay to the employer such part of any money the Minister has received under subsection (1) in respect of a contributor or former contributor as the Minister considers proper having regard to the payments made by the employer to the Board in respect of the contributor or former contributor.(3) In this clause—Board has the same meaning as in the Local Government and Other Authorities (Superannuation) Act 1927.contributing employer means a person who has—(a) employed a contributor or former contributor, and(b) made payments to the Board in respect of the contributor or former contributor.contributor and former contributor have the same meanings as in sections 15Y and 15Z of the Local Government and Other Authorities (Superannuation) Act 1927.
52 References to repealed area Act and repealed hospitals Act
(1) A reference in any other Act or instrument made under an Act, or in any instrument of any kind, to the repealed area Act or the repealed hospitals Act is taken to be a reference to this Act.(2) This clause does not apply to the State Public Service Superannuation Act 1985.
53 Reference to this Act in Health Care Complaints Act 1993
A reference in section 25 (1) of the Health Care Complaints Act 1993 to this Act is taken to include a reference to the repealed area Act and the repealed hospitals Act.Note—Section 25 of the Health Care Complaints Act 1993 requires the Health Care Complaints Commission to notify the Director-General of the details of a complaint under that Act if it appears to the Commission that it involves a possible breach of any of the various Acts (or the regulations made under them) listed in that section.This clause ensures that the reference in that Act to this Act will be read so as to require the Commission to notify the Director-General of possible breaches of the repealed area Act and the repealed hospitals Act committed before their repeal.
54 General savings
Subject to this Schedule, anything done by, to or in relation to a former health organisation is taken to have been done by, to or in relation to the successor of the organisation.
Part 3 Provisions consequent on the enactment of the Health Legislation Amendment Act 1999
55 Validation of loans to public health organisations
Any loan made before the commencement of this clause to an area health service, statutory health corporation or affiliated health organisation out of money appropriated from the Consolidated Fund to the Minister for Health is validated.
Part 4 Provisions consequent on the enactment of the Health Services Amendment Act 2004
56 Definition
In this Part, the 2004 amending Act means the Health Services Amendment Act 2004.
57 Abolition of area health boards
(1) Each area health board constituted under section 23, as in force immediately before the commencement of Schedule 1 [2] to the 2004 amending Act, is abolished.(2) The members of each area health board cease to hold office on the commencement of Schedule 1 [2] to the 2004 amending Act, but are not entitled to be paid any compensation by reason of ceasing to hold office.(3) The chief executive officer of an area health service is not removed from office just because he or she ceases to be a member of the area health board for the service.
58 Abolition of health corporation board for The Royal Alexandra Hospital for Children
(1) The health corporation board for The Royal Alexandra Hospital for Children, as existing immediately before the commencement of Schedule 1 [28] to the 2004 amending Act, is abolished.(2) The members of the health corporation board for The Royal Alexandra Hospital for Children cease to hold office on the commencement of Schedule 1 [28] to the 2004 amending Act, but are not entitled to be paid any compensation by reason of ceasing to hold office.
59 Appointment of first health executives
(1) This clause applies to the following positions—(a) the position of chief executive of an area health service,(b) a position that, as at the commencement of this clause, is the subject of a determination in force under section 121B (1) (b).(2) On the commencement of Schedule 1 [27] to the 2004 amending Act, a person who, immediately before that commencement, held a position to which this clause applies, or was an appointee to such a position, is taken to have been appointed to the position under section 121C (1).(3) Until further provision is made under Part 3 of Chapter 9, the person’s conditions of employment (including remuneration) are, subject to that Part, to be the same as those that applied to the person immediately before the commencement of Schedule 1 [27] to the 2004 amending Act.(4) An appointment by the Governor under section 28, as in force immediately before the commencement of Schedule 1 [2] to the 2004 amending Act, has the same effect as if it were an appointment by the Health Administration Corporation under section 121C, as inserted by that Act.
60 Existing executive officers
Any person within the NSW Health Service who, immediately before the commencement of Schedule 1 [27] to the 2004 amending Act, was an executive officer under Part 3.1 of the Public Sector Employment and Management Act 2002, is taken, on that commencement, to be a health executive under Part 3 of Chapter 9 of this Act.
61 Unattached officers
Any person who, immediately before the commencement of section 121N, was an unattached officer under section 77 of the Public Sector Employment and Management Act 2002, being a person who was then—(a) an employee in the NSW Health Service, oris taken, on that commencement, to be an unattached officer under section 121N.(b) an employee of an area health service, having been the chief executive officer of the service immediately before he or she became an unattached officer,
Part 5 Provisions consequent on enactment of Public Sector Employment Legislation Amendment Act 2006
62 Definitions
In this Part—amending Act means the Public Sector Employment Legislation Amendment Act 2006.former corporation means the Ambulance Service of New South Wales constituted under the repealed Act.relevant commencement means—(a) in relation to an area health service or a statutory health corporation—the commencement of Schedule 2 [27] to the amending Act, or(b) in relation to an affiliated health organisation—the day on which the organisation becomes a declared affiliated health organisation.relevant public health organisation means—(a) an area health service, or(b) a statutory health corporation, or(c) a declared affiliated health organisation.repeal date means the date on which the repealed Act is repealed by the amending Act.repealed Act means the Ambulance Services Act 1990 as in force immediately before its repeal by the amending Act.
63 Transitional provision—construction of superseded references
(1) In any other Act, or in any instrument made under any Act or in any other instrument of any kind (whether enacted, made or executed before or after the commencement of this clause)—(a) a reference to a member of staff or employee (however described) of a relevant public health organisation is to be read as including a reference to a member of staff of that part of the NSW Health Service comprising the group of staff who are employed under Part 1 of Chapter 9 to enable the public health organisation to exercise its functions, and(b) a reference to a relevant public health organisation in its capacity as an employer of staff (however described) is, to the extent that the staff concerned comprise a group of staff employed under Part 1 of Chapter 9 to enable the public health organisation to exercise its functions, to be read as including a reference to the Director-General, and(c) a reference to the Health Administration Corporation in relation to the employment of staff is to be read as including a reference to the Director-General.(2) This clause is subject to the regulations.
64 Existing staff of public health organisations and Health Administration Corporation
(1) A person who, immediately before the relevant commencement, was employed as a member of staff (however described) of a relevant public health organisation or the Health Administration Corporation (the Corporation)—(a) ceases, on that commencement, to be employed by the public health organisation or the Corporation, and(b) is taken, on that commencement, to be employed under Part 1 of Chapter 9 as a member of staff of the NSW Health Service.(2) Any such person who, under subclause (1), becomes a member of staff of the NSW Health Service—(a) is, until such time as provision is otherwise made under this Act or any other law, to continue to be employed in accordance with the same terms and conditions (including the terms of any State industrial instrument) that applied to the person as a member of staff of the relevant public health organisation or the Corporation, and(b) is taken, for the purposes of this clause, to have been transferred to the NSW Health Service from the employment of the public health organisation or the Corporation.(3) If an award under the Workplace Relations Act 1996 of the Commonwealth (the Federal award) applied to the person as a member of staff of the public health organisation or Corporation immediately before the relevant commencement, a State industrial instrument in the nature of an award is taken to have been created in the same terms as the Federal award and is taken to apply to the person for the purposes of subclause (2).(4) If a certified agreement under the Workplace Relations Act 1996 of the Commonwealth (the Federal agreement) applied to the person as a member of staff of the public health organisation or Corporation immediately before the relevant commencement, a State industrial instrument in the nature of an enterprise agreement is taken to have been created in the same terms as the Federal agreement and is taken to apply to the person for the purposes of subclause (2).(5) The terms of any such instrument created as provided by subclause (3) or (4) have effect despite anything to the contrary in the Annual Holidays Act 1944, the Long Service Leave Act 1955, the Industrial Relations Act 1996 or any other law of the State.(6) A person who is transferred under this clause—(a) retains any rights to annual leave, long service leave, sick leave, and other forms of leave, accrued or accruing in his or her employment with the organisation or body from which the person is transferred, and(b) is not entitled to receive any payment or other benefit merely because the person ceases to be a member of staff of the organisation or body from which the person is transferred, and(c) is not entitled to claim, both under this Act or any other Act, dual benefits of the same kind for the same period of service.(7) A relevant public health organisation is liable for the cost of any leave entitlements for a person who is transferred under this clause that have accrued up until the date on which the person is transferred (the transfer date).(8) The Minister may, from time to time, direct a relevant public health organisation to meet the cost of its liability in respect of any leave entitlements that have accrued before the transfer date. Any such direction has effect despite any determination made in respect of the public health organisation under section 127.(9) This clause is subject to the provisions of this Act and the regulations.
65 Existing executive officers
Any person within the NSW Health Service who, immediately before the commencement of Schedule 2 [27] to the amending Act, was an executive officer under Part 3.1 of the Public Sector Employment and Management Act 2002, is taken, on that commencement, to be a health executive under Part 3 of Chapter 9 of this Act.
66 Abolition of former corporation
(1) On the repeal date—(a) the former corporation is abolished, and(b) any assets, rights and liabilities of the former corporation become the assets, rights and liabilities of the Health Administration Corporation.(2) Except as provided by clause 71, a reference in any other Act, or in any instrument of any kind (including any contract or agreement) to the former corporation is to be construed as a reference to the Health Administration Corporation.(3) In this clause—assets means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents.liabilities means all liabilities, debts and obligations (whether present or future and whether vested or contingent).rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent).
67 Ambulance Service Board
(1) On the repeal date—(a) the Ambulance Service Board constituted under the repealed Act is abolished, and(b) each person who held office as a director of the Board (other than the Chief Executive Officer of the Board) immediately before that date ceases to hold that office.(2) A person who, under this clause, ceases to hold office is not entitled to any remuneration or compensation because of the loss of that office.(3) However, the person is taken to have been appointed as a member of the Ambulance Service Advisory Council, subject to Schedule 6 (as inserted by the amending Act), for the remainder of the term for which the person was appointed as a director of the Ambulance Service Board.
68 Chief Executive Officer of Ambulance Service Board
(1) The person holding office as the Chief Executive Officer of the Ambulance Service Board immediately before the repeal date ceases to hold that office on that date but is taken to be employed as a health executive (within the meaning of Part 3 of Chapter 9) for the balance of the person’s term of appointment as Chief Executive Officer of the Ambulance Service Board.(2) The continuation of a person’s employment under subclause (1) is subject to Part 3 of Chapter 9.
69 Transfer of staff of former corporation
(1) A person who, immediately before the repeal date, was employed as a member of staff of the former corporation, is taken, on that date, to be employed as a member of staff of the Ambulance Service of NSW.(2) Any such person who, under subclause (1), becomes a member of staff of the Ambulance Service of NSW is, until such time as provision is otherwise made under this Act or any other law, to continue to be employed in accordance with the same terms and conditions (including the terms of any State industrial instrument) that applied to the person as a member of staff of the former corporation.(3) A reference in any other Act or instrument to a member of staff (however described) of the former corporation is to be construed as a reference to a member of staff of the Ambulance Service of NSW.(4) This clause is subject to the provisions of this Act (including clause 70) and the regulations.
70 Appointment of certain staff of former corporation as executive officers
(1) This clause applies to a position on the staff of the former corporation that is, as at the repeal date, the subject of a determination under section 121B (1) (b).(2) On the repeal date, a person who, immediately before that date, held a position to which this clause applies, or was an appointee to such a position, is taken to have been appointed to the position under section 121C (1).(3) Until further provision is made under Part 3 of Chapter 9, the person’s conditions of employment (including remuneration) are, subject to that Part, to be the same as those that applied to the person immediately before the repeal date.
71 Continuation of regulation made under repealed Act
(1) The Ambulance Services Regulation 2005, as in force immediately before the repeal date, continues in force and is taken to be a regulation made under this Act.(2) The Regulation continued in force by subclause (1) (the continued regulation) may be amended and repealed in the same way as any other regulation made under this Act.(3) A reference in the continued regulation to the Ambulance Service (other than a reference that relates to a member of staff of the Ambulance Service) is to be construed as a reference to the chief executive of the Ambulance Service of NSW.(4) In exercising any of the functions of the former corporation under the continued regulation, the chief executive of the Ambulance Service of NSW may delegate to any person any of the functions that the chief executive may exercise as a result of subclause (3).
72 Existing workers compensation policies of insurance
A policy of insurance issued to a public health organisation under the Workers Compensation Act 1987 and in force immediately before the relevant commencement for the organisation concerned is also taken to have been issued to the Government of New South Wales (but only as a policy that is limited to workers employed in the NSW Health Service to enable the public health organisation to exercise its functions).
73 Special provisions relating to The Stewart House Preventorium, Curl Curl
(1) The amendments made to this Act by the amending Act do not apply to or in respect of The Stewart House Preventorium until the day appointed by proclamation by the Governor for the purposes of this clause.(2) Until that appointed day, this Act continues to apply to and in respect of The Stewart House Preventorium (including in relation to the employment of any staff) as if the amending Act had not been enacted.
Part 6 Provision consequent on enactment of Health Practitioner Regulation Amendment Act 2010
74 Service contracts
Despite its repeal by the Health Practitioner Regulation Amendment Act 2010, section 85 (3) continues to apply to a service contract between a public health organisation and a medical practitioner’s practice company that was entered into and in force immediately before its repeal.
Part 7 Provisions consequent on enactment of Health Services Amendment (Local Health Networks) Act 2010
75 Definitions
In this Part—amending Act means the Health Services Amendment (Local Health Networks) Act 2010.existing area health advisory council means an area health advisory council for an existing area health service.existing area health service means an area health service in existence immediately before the network establishment day.existing by-laws means any by-laws made by an area health service that were in force immediately before the network establishment day.local health network means a local health network constituted by this Act (as in force on the network establishment day).network establishment day means the day on which Schedule 1 is substituted by the amending Act.
76 Dissolution of existing area health services
On and from the network establishment day—(a) each existing area health service is dissolved, and(b) each existing area health advisory council is dissolved, and(c) the members (including chairpersons) of each existing area health advisory council cease to hold office as such, and(d) any person who ceases to be a member of an existing area health advisory council because of the operation of this clause is not entitled to any compensation for the loss of that office.
77 Transfers of assets, rights, liabilities and staff of area health services
(1) Without limiting the generality of section 131, the Governor may make an order under that section during the transitional period as if any reference in the section to a statutory health organisation also included references to both a proposed local health network and proposed statutory health corporation.(2) Section 131 (3) does not apply during the transitional period in relation to an order made under that section that transfers to a proposed local health network, proposed statutory health corporation, local health network or statutory health corporation—(a) a public hospital, health institution, health service or health support service under the control of an area health service, or(b) any assets, rights or liabilities of an area health service.(3) A transfer under an order made under section 131 to a proposed local health network or proposed statutory health corporation is taken to have effect on the network establishment day.(4) The provisions of Schedule 4 apply in relation to any of the residual assets, rights and liabilities of each area health service dissolved by operation of clause 76 as if—(a) an order under section 20 (1) (a) had been made dissolving the service on the network establishment day, and(b) Schedule 4 continued to apply in relation to the dissolution of an area health service by an order made under that section in the same way as it applied to such a dissolution immediately before the network establishment day.(5) The Governor may make an order under section 131 transferring to any one or more statutory health organisations any residual assets, rights or liabilities of an area health service that are vested in the Minister by operation of subclause (4) as if the Minister were a statutory health organisation for the purposes of that section. Section 131 (3) does not apply in relation to such an order.(6) Without limiting clause 18 of Schedule 4, regulations of a savings and transitional nature may be made consequent on the dissolution of an existing area health service by clause 76.(7) In this clause—proposed local health network means a local health network to be constituted on the network establishment day.proposed statutory health corporation means a statutory health corporation to be constituted on the network establishment day.residual assets, rights and liabilities of an existing area health service dissolved by operation of clause 76 means any assets, rights and liabilities of the area health service that—(a) have not already been transferred under this Act to another person before the network establishment day, and(b) will not otherwise be transferred to a local health network or statutory health corporation on the network establishment day by means of an order made under section 131 or any other provision of this Act.transitional period means the period commencing on the day on which this clause commences and ending on the day immediately after the network establishment day.
78 Constitution of local health networks
(1) Each of the local health networks specified in Schedule 1 (as substituted by the amending Act) is constituted as such on the network establishment day, subject to subclause (2).(2) Nothing in this clause prevents the amendment of Schedule 1 (whether on or after the network establishment day) by an order made under section 19 or 20.
79 Change in corporate governance of The Sydney Children’s Hospitals Network
(1) The SCHN becomes a network governed health corporation on the reconstitution day.(2) A person who was a member of the existing advisory council of the SCHN immediately before the reconstitution day—(a) ceases to be a member of the existing advisory council on that day, and(b) if the person consents, becomes instead a member of the governing council of the SCHN.(3) A person who becomes a member of the governing council of the SCHN by operation of subclause (2) holds office as such for a term of 2 years commencing on the reconstitution day unless the person vacates office before the expiry of that term.(4) The provisions of this clause have effect despite anything to the contrary in Division 2 of Part 2 of Chapter 3 (as applied to network governed health corporations by section 52F), including in relation to the maximum number of members for the governing council of a network governed health corporation.(5) In this clause—existing advisory council of the SCHN means the advisory council constituted for the SCHN under section 52D that was in existence immediately before the reconstitution day.reconstitution day means the day on which Schedule 1 [35] to the amending Act commences.SCHN means the statutory health corporation with the corporate name “The Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating The Royal Alexandra Hospital for Children)”.
80 Preservation of existing by-laws
(1) The regulations may make provision for or with respect to the continued application of existing by-laws made in relation to public hospitals, health institutions, health services or health support services controlled by area health services until new by-laws are made under this Act in relation to such hospitals, institutions or services.(2) Any regulations made for the purposes of this clause may provide for the continued application of existing by-laws subject to such modifications as may be prescribed by the regulations.
81 Updating of references to area health services
(1) A reference in any other Act or instrument made under any other Act or in any instrument of any kind to an area health service constituted under this Act (other than a particular area health service) is to be read on and from the network establishment day as being a reference to a local health network constituted under this Act.(2) The regulations may make provision for or with respect to how a reference in any other Act or instrument made under any other Act or in any instrument of any kind to a particular area health service (or a hospital, health institution, health service or health support service controlled by a particular area health service) is to be read on and from the network establishment day.
82 Relationship of this Part with Interpretation Act 1987
The provisions of this Part are in addition to, and do not derogate from, the provisions of section 26 of the Interpretation Act 1987.Note—Section 26 of the Interpretation Act 1987 enables a power to make instruments of a legislative or administrative character that is to be conferred by an enacted but uncommenced amendment to an Act to be exercised before the amendment commences. Any such instrument will have effect on the commencement of the amendment.
Part 8 Provisions consequent on enactment of Health Services Amendment (Local Health Districts and Boards) Act 2011
Division 1 Preliminary
83 Interpretation
(1) In this Part—amending Act means the Health Services Amendment (Local Health Districts and Boards) Act 2011.existing by-laws means any by-laws made (or taken to have been made) by an existing local health network that were in force immediately before the reconstitution day.existing local health network means a local health network in existence immediately before the reconstitution day.existing local health network governing council means a local health network governing council for an existing local health network in existence immediately before the reconstitution day.existing network governed health corporation means a network governed health corporation in existence immediately before the reconstitution day.initial local health district means a local health district constituted by this Act (as in force on the reconstitution day).instrument means an instrument (other than this Act or an instrument made under this Act) or any other document that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order, process or other instrument issued by a court or tribunal.reconstitution day means the day on which section 17 is substituted by the amending Act.successor, in relation to an existing local health network, means an initial local health district having substantially the same name as the existing local health network.(2) For the purposes of the definition of successor in subclause (1), an initial local health district has substantially the same name as an existing local health network if the only difference between the corporate names of the district and network is the use of the word “District” instead of the word “Network”.
Division 2 Dissolution and reconstitution of existing local health networks
84 Dissolution of existing local health networks
(1) On the reconstitution day—(a) each existing local health network is dissolved, and(b) each existing local health network governing council is dissolved, and(c) the members (including chairpersons and deputy chairpersons) of each existing local health network governing council cease to hold office as such, but are eligible (if otherwise qualified) to be appointed as members (including chairpersons and deputy chairpersons) of local health district boards, and(d) any person who ceases to be a member (including a chairperson or deputy chairperson) of an existing local health network governing council because of the operation of this clause is not entitled to any compensation for the loss of that office.(2) Subject to this Division, on the dissolution of an existing local health network, the network’s successor is taken for all purposes (including the rules of private international law) to be a continuation of and the same legal entity as the network.
85 Constitution of initial local health districts
(1) Each of the local health districts specified in Schedule 1 (as amended by the amending Act on the reconstitution day) is constituted as such on that day, subject to subclause (2).(2) Nothing in this clause prevents the amendment of Schedule 1 (whether on or after the reconstitution day) by an order made under section 19 or 20.
86 Transfer of existing local health network’s undertaking to network’s successor
(1) The following provisions have effect in relation to the assets, rights and liabilities of an existing local health network on its dissolution—(a) the assets of the network vest in the network’s successor by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance,(b) the rights or liabilities of the network become by virtue of this clause the rights or liabilities of the network’s successor,(c) all proceedings relating to the assets, rights or liabilities commenced before the network’s dissolution by or against the network or a predecessor of the network and pending immediately before the network’s dissolution are taken to be proceedings pending by or against the network’s successor,(d) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the network’s dissolution by, to or in respect of the network is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the network’s successor,(e) the network’s successor has all the entitlements and obligations of the network in relation to those assets, rights and liabilities that the network would have had but for its dissolution, whether or not those entitlements and obligations were actual or potential at the time the dissolution took effect.(2) Without limiting subclause (1)—(a) any agreement between an existing local health network and any person that was in force (or taken to be in force) immediately before the dissolution of the network is taken on and from that dissolution to have been entered into between the network’s successor and the person, and(b) any delegation given (or taken to have been given) by an existing local health network in force immediately before the dissolution of that network is taken on and from that dissolution to have been given by the network’s successor.(3) The operation of this clause is not to be regarded—(a) as a breach of contract or confidence or otherwise as a civil wrong, or(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or(d) as an event of default under any contract or other instrument.(4) No attornment to an existing local health network’s successor by a lessee from the network is required.(5) No compensation is payable to any person or body in connection with the transfer of any asset, right or liability by operation of this clause.(6) State tax is not payable in relation to—(a) an exempt matter, or(b) anything done because of, or for a purpose connected with or arising out of, an exempt matter.(7) The Minister may, by notice in writing, confirm that particular assets, rights or liabilities have become the assets, rights or liabilities of an initial local health district by operation of this clause. Such a notice is conclusive evidence of that fact.(8) In this clause—exempt matter means any of the following—(a) the transfer of any assets, rights or liabilities by operation of this clause (including, without limitation, any instrument executed only for a purpose ancillary to or consequential on the operation of this clause),(b) anything certified by the Minister in writing as having been done in consequence of such a transfer (for example, the transfer or registration of an interest in land).State tax means application or registration fees, duty or any other tax, fee or charge imposed by any legislation or other law of the State.
87 Existing chief executives continue in office
On the reconstitution day, any person holding office as a chief executive of an existing local health network immediately before its dissolution is taken to have been appointed as the chief executive of the network’s successor for the balance of his or her term of office as the chief executive of the local health network, unless the person vacates office before the expiry of the balance of that term.
88 Continuation of existing by-laws
(1) Subject to the regulations, the existing by-laws of an existing local health network continue in force on and from the reconstitution day as by-laws of the network’s successor (with such modifications as are necessary or prescribed by the regulations) until by-laws are made by the successor.(2) Subject to the regulations, any committee, subcommittee or council established (or taken to have been established or continued in existence) under the existing by-laws of an existing local health network continues in existence as a committee, subcommittee or council of the network’s successor until such time as a replacement committee, subcommittee or council is established under the successor’s by-laws.(3) The continuation of an existing committee, subcommittee or council by operation of this clause does not alter or otherwise affect the existing membership or functions of the committee, subcommittee or council.
89 Continuation of existing approved quality assurance committees
(1) Subject to the regulations, each of the committees declared (or taken to have been declared) as an approved quality assurance committee under section 20E of the Health Administration Act 1982 in relation to any local health network that is in existence immediately before the reconstitution day is taken on and from that day to be an approved quality assurance committee of the network’s successor.(2) The continuation of an approved quality assurance committee by operation of this clause does not alter or otherwise affect the existing membership or functions of the committee.
90 Updating of references to local health networks and their governing councils
(1) Subject to the regulations—(a) a reference in any other Act or instrument made under any other Act or in any instrument of any kind to a local health network constituted under this Act (other than a particular local health network) is to be read on and from the reconstitution day as being a reference to a local health district constituted under this Act, and(b) a reference in any other Act or instrument made under any other Act or in any instrument of any kind to a particular local health network is to be read on and from the reconstitution day as being a reference to the network’s successor, and(c) a reference in any other Act or instrument made under any other Act or in any instrument of any kind to a local health network governing council established under this Act (other than a local health network governing council of a particular local health network) is to be read on and from the reconstitution day as being a reference to a local health district board established under this Act, and(d) a reference in any other Act or instrument made under any other Act or in any instrument of any kind to a local health network governing council for a particular local health network is to be read on and from the reconstitution day as being a reference to the local health district board for the network’s successor.(2) Subclause (1) does not apply in relation to clause 38 of the Children (Criminal Proceedings) Regulation 2005 or such other references as may be prescribed by the regulations.
Division 3 Miscellaneous
91 Change in corporate governance of existing network governed health corporations
(1) On the conversion day—(a) the governance of each existing network governed health corporation changes to specialty network governance and, accordingly, the corporation becomes a specialty network governed health corporation within the meaning of this Act, and(b) each governing council for an existing network governed health corporation is dissolved, and(c) the members (including chairpersons and deputy chairpersons) of each governing council for an existing network governed health corporation cease to hold office as such, but are eligible (if otherwise qualified) to be appointed as members (including chairpersons and deputy chairpersons) of the boards for specialty network governed health corporations, and(d) any person who ceases to be a member (including a chairperson or deputy chairperson) of a governing council for an existing network governed health corporation because of the operation of this clause is not entitled to any compensation for the loss of that office.(2) Without limiting clause 1, the regulations may make provision for or with respect to the re-appointment of existing council members of the SCHN to the new board of the SCHN.Note—The SCHN becomes a specialty network governed health corporation on the conversion day by operation of subclause (1) (a).(3) Any regulation made for the purposes of subclause (2) has effect despite anything to the contrary in subclause (1) or in Division 2 of Part 2 of Chapter 3 (as applied to specialty network governed health corporations by section 52F), including in relation to the maximum number of members for the board of a specialty network governed health corporation.(4) A change in the governance of an existing network governed health corporation that is effected by operation of this clause does not operate—(a) to create a new legal entity, or(b) to prejudice or affect the identity of the body corporate constituted as the health corporation or its continuity as a body corporate, or(c) to affect the property, or the rights or obligations, of the health corporation, or(d) to render defective any legal proceedings by or against the health corporation, or(e) to affect the appointment of the chief executive of the health corporation.(5) In this clause—conversion day means the day on which Schedule 1.1 [3] to the amending Act commences.existing council member of the SCHN means a person who is a member (including the chairperson or deputy chairperson) of the governing council of the SCHN immediately before the conversion day.SCHN means the statutory health corporation with the corporate name “The Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating The Royal Alexandra Hospital for Children)”.
92 Status of local health districts and specialty network governed health corporations for purposes of National Health Reform Agreement
It is declared that each local health district and specialty network governed health corporation constituted under this Act is intended to operate as a local hospital network of the kind referred to in the National Health Reform Agreement.
93 Regulations
Without limiting clause 1, the regulations may make provision for or with respect to the following—(a) the updating of references in any other Acts or instruments made under any other Acts or in any instruments of any kind to local health networks, local health network governing councils, network governed health corporations or governing councils of network governed health corporations,(b) the application (whether with or without modifications) of the by-laws of existing local health networks to local health districts,(c) the continuation of committees declared (or taken to have been declared) as approved quality assurance committees under section 20E of the Health Administration Act 1982 and of committees, subcommittees and councils established (or taken to be established or continued in existence) under existing by-laws.
Part 9 Provisions consequent on enactment of Health Services Amendment (Ambulance Fees) Act 2014
94 Scale of fees
An order made under section 67D of this Act and in force immediately before the repeal of that section by the Health Services Amendment (Ambulance Fees) Act 2014 is taken, on that repeal, to have been made under section 67L.
95 Recovery of fees for services provided before commencement
(1) A debt notice may be issued under Part 4 of Chapter 5A in respect of an existing ambulance fee, as if a fee invoice had already been served on the person by whom the fee is payable, if—(a) a notice specifying the existing ambulance fee and the person by whom it was payable was issued by or on behalf of the Health Secretary before the relevant commencement date, and(b) the person by whom the fee was payable was given a copy of the notice, and(c) the fee specified in the notice was not greater than the fee for the relevant ambulance services fixed by the scale of fees in force under section 67D at the time that the notice was issued, and(d) the fee is not paid in full by the date that is 7 days after the due date for payment specified in the notice.(2) In such a case, the person is taken to have been served with a fee invoice for the purposes of this Act.(3) This clause does not prevent the Health Secretary from issuing a fee invoice, in accordance with Part 4 of Chapter 5A, for ambulance services provided before the relevant commencement date if the Health Secretary charges the fee after the relevant commencement date.(4) This clause is subject to the Limitation Act 1969.(5) In this clause—existing ambulance fee means an ambulance fee charged by the Health Secretary before the relevant commencement date.relevant commencement date means the date of commencement of section 67P (as inserted by the Health Services Amendment (Ambulance Fees) Act 2014).
96 Charging of parents for services provided to child
Section 67M (3), as inserted by the Health Services Amendment (Ambulance Fees) Act 2014, does not apply to ambulance services provided before the commencement of that subsection.
97 References to Health Secretary
(1) In Chapter 5A and Schedule 9, as inserted by the Health Services Amendment (Ambulance Fees) Act 2014, and in this Part, a reference to the Health Secretary is a reference to the Secretary of the Ministry of Health.(2) A reference in this Part to anything done by or on behalf of the Health Secretary includes, in relation to anything done before the commencement of the Government Sector Employment Act 2013, a reference to anything done by or on behalf of the Head of the Government Department or Division responsible for charging ambulance fees for ambulance services or a delegate of the Head.
Part 10 Provisions consequent on enactment of Health Legislation Amendment Act 2016
98 Definition
In this Part, amending Act means the Health Legislation Amendment Act 2016.
99 Extension of terms of office of members of local health district boards
The amendments to section 26 by Schedule 2 [1] and [2] to the amending Act extend to persons holding office at the commencement of those amendments.
100 Repeal of New South Wales Institute of Psychiatry Act 1964
(1) On the repeal of the New South Wales Institute of Psychiatry Act 1964 by the amending Act—(a) the body corporate known as “The New South Wales Institute of Psychiatry” is dissolved, and(b) each person appointed as a member of that body corporate ceases to hold office as such a member, and(c) any assets, rights and liabilities (if any) of that body corporate become the assets, rights and liabilities of the Health Education and Training Institute, and(d) the accounts called “The New South Wales Institute of Psychiatry Account” and the “House Account” are abolished, and(e) any balance standing to the credit of those accounts is transferred to the Health Education and Training Institute.(2) A person who ceases to hold office as a member of the New South Wales Institute of Psychiatry is not entitled to any remuneration or compensation because of the loss of that office.(3) Subject to this Schedule and the regulations, a reference in any Act or instrument to the New South Wales Institute of Psychiatry is taken to be a reference to the Health Education and Training Institute.(4) In this clause—assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents.liabilities means all liabilities, debts and obligations (whether present or future, whether vested or contingent and whether personal or assignable).rights means all rights, powers, privileges and immunities (whether present or future and whether vested or contingent and whether personal or assignable).
101 Changes to by-law provisions
The substitution of sections 39 and 60 by the amending Act does not affect the validity of any by-laws made before that substitution.
Part 11 Provisions consequent on enactment of Government Sector Employment Legislation Amendment Act 2016
102 Definitions
In this Part—amending Act means the Government Sector Employment Legislation Amendment Act 2016.existing Health Service senior executive means a member of the NSW Health Service who was, immediately before the substitution of Part 3 of Chapter 9 of this Act by the amending Act, holding an executive position under the former senior executive provisions, and includes any such member of the NSW Health Service holding office as a chief executive under section 23, 51, 52A, 52G or 67A of this Act.former senior executive provisions means the provisions of Part 3 of Chapter 9 of this Act (and any other provisions of this Act that relate to the operation of that Part), as in force immediately before the substitution of that Part by the amending Act.new senior executive provisions means the provisions of Part 3 of Chapter 9 of this Act (and any other provisions of this Act that relate to the operation of that Part), as amended by the amending Act, and the provisions of Part 3B of the Statutory and Other Offices Remuneration Act 1975.
103 Application of new senior executive provisions to existing Health Service senior executives
(1) On the commencement of the new senior executive provisions, the following provisions apply in relation to an existing Health Service senior executive—(a) the executive is taken to be employed in ongoing employment as a Health Service senior executive under the new senior executive provisions,(b) for that purpose, a contract of employment under the new senior executive provisions is taken to have been entered into in relation to employment of the executive,(c) the terms and conditions of that contract are taken to be those contained in the model contract of employment for NSW Health Service senior executives that is prescribed by the government sector employment rules as at the date of commencement of the new senior executive provisions,(d) the executive is taken to be employed in the band under the Public Service senior executive band determination that—(i) the employer of the executive considers appropriate for the role of the executive, and(ii) is approved by the Health Secretary (in the case where the Health Secretary is not the employer),(e) the executive is to be assigned to the same (or a similar) role to the role in which the executive was employed immediately before the commencement of the new senior executive provisions,(f) the executive has a remuneration package that is equivalent to the executive’s remuneration package under the former senior executive provisions (unless the remuneration package is increased as a result of arrangements in force under those provisions) even if it exceeds the band in which the person is employed,(g) the executive continues to be entitled to any recruitment or other allowance payable to the executive under the former senior executive provisions immediately before the commencement of the new senior executive provisions,(h) the executive is entitled to continue, until such time as the employer determines otherwise, to work on a part-time basis if the executive was working part-time immediately before the commencement of the new senior executive provisions.(2) However, subclause (1) (a)–(c) do not apply to an existing Health Service senior executive holding an executive position under the former senior executive provisions that is designated by the Health Secretary by order in writing before the commencement of this clause (a designated position). Such a designation may only be made if the Health Secretary is satisfied that the senior executive was appointed to the executive position—(a) to undertake temporary project work, or(b) on an acting or short-term basis pending the taking of recruitment action to fill a vacancy in the executive position.(3) On the commencement of the new senior executive provisions, the following provisions apply in relation to an existing Health Service senior executive holding a designated position—(a) the person is taken to be employed as a Health Service senior executive for the remainder of the term of the person’s appointment under the former senior executive provisions,(b) the person is not required to enter into a contract of employment under the new senior executive provisions and the person’s contract of employment under the former senior executive provisions continues to apply for the remainder of that term.(4) Subclause (1) (f) and (g) cease to apply in relation to a Health Service senior executive if the executive is assigned to a role (whether in the NSW Health Service or any other government sector agency) that has a remuneration package exceeding the remuneration package paid to the executive immediately before the assignment to the new role.
103A Termination of employment
Section 121H extends to conduct occurring before 1 January 2017.
103B Dealing with misconduct and unsatisfactory performance
(1) Any matter relating to the conduct or performance of an existing Health Service senior executive that was being dealt with under this Act before 1 January 2017 is to continue to be dealt with as if this Act had not been amended by the amending Act.(2) If the employer of a NSW Health Service senior executive takes any action under section 68 (2) of the Government Sector Employment Act 2013 on or after 1 January 2017 in relation to the executive, anything done before that date by an employer of the executive in dealing with the executive’s unsatisfactory performance in accordance with the rules made under that Act is taken to have been done by the employer who is taking the action (whether or not the same person).
104 Savings and transitional regulations
(1) The provisions of any regulation made under Part 1 of this Schedule consequent on the enactment of the amending Act have effect despite anything to the contrary in this Part.(2) The regulations made under Part 1 of this Schedule consequent on the enactment of the amending Act may make separate savings and transitional provisions or amend this Part to consolidate the savings and transitional provisions.
Part 12 Provisions consequent on enactment of Health Legislation Amendment Act 2018
105 Existing members of Ambulance Services Advisory Council
A person who is a member of the Ambulance Services Advisory Council does not cease to be a member on the commencement of Schedule 2 to the Health Legislation Amendment Act 2018 (the amending Act) despite any of the following—(a) the renaming of that Council as the Ambulance Service Advisory Board,(b) the person having been appointed by the Minister rather than the Health Secretary,(c) the person not having any of the expertise or experience required by section 67C (3), as substituted by the amending Act.
Part 13 Provisions consequent on enactment of State Debt Recovery Act 2018
106 Changes to fee recovery
(1) This Act, the regulations under this Act, and the Fines Act 1996, as in force immediately before the repeal of Schedule 9 by the State Debt Recovery Act 2018, continue to apply in respect of any fee recovery order made under this Act before that repeal, as if the State Debt Recovery Act 2018 had not been enacted.(2) The State Debt Recovery Act 2018 extends to any ambulance fee that became payable, or is incurred for a service that was provided, before the commencement of that Act. Accordingly, that fee may be referred to the Chief Commissioner of State Revenue for debt recovery action under that Act.(3) However, a fee cannot be referred to the Chief Commissioner for debt recovery action under the State Debt Recovery Act 2018 if the fee is the subject of fee recovery action under Schedule 9, unless the fee recovery order is withdrawn.
Part 14 Provisions consequent on enactment of Health Legislation Amendment Act (No 3) 2018
107 Constitution of Committee of Review
Section 108 (2) (c1) applies only in respect of a Committee of Review appointed after the commencement of that paragraph.
Part 15 Provision consequent on enactment of Criminal Legislation Amendment (Child Sexual Abuse) Act 2018
108 Sexual touching and sexual act include former acts of indecency
Any references in this Act to sexual touching or sexual act are taken, in a reference to any offence occurring before the commencement of this clause, to include a reference to an act of indecency.
sch 7: Am 1998 No 54, Sch 1.10 [5]; 1999 No 76, Sch 9 [5] [6]; 2004 No 87, Sch 2 [8]; 2004 No 92, Sch 1 [29] [30]; 2006 No 2, Sch 2 [63] [64]; 2009 No 15, Sch 1.4 [5]; 2010 No 34, Sch 2.27 [17]; 2010 No 52, Sch 3.4 [3]; 2010 No 97, Sch 1.1 [45]–[48]; 2011 No 4, Sch 1.1 [9] [10]; 2012 No 56, Sch 2 [4]; 2014 No 60, Sch 1 [5]; 2016 No 2, Sch 2 [23]; 2016 No 45, Sch 2 [19]; 2016 (726), Sch 1 [1]–[3]; 2016 (773), cl 3; 2018 No 2, Sch 2 [12]; 2018 No 11, Sch 3.6 [17]; 2018 No 33, Sch 5.9 [5]; 2018 No 73, Sch 4 [4]; 2019 No 14, Sch 2.10.
Schedule 8 Transferred provisions—Sydney Hospital (Trust Property) Act 1984
1 Future property
(1) To the extent to which, by a deed, will or other instrument, whether taking effect before, on or after 14 December 1984 (the appointed day)—(a) any property would, but for this clause, be devised, bequeathed, given, granted, released, conveyed or appointed on or after the appointed day to The Sydney Hospital, or another person, for, or for the benefit of, or in trust for, a unit or the purposes of a unit, orthe deed, will or other instrument shall be construed and have effect as if the reference therein to The Sydney Hospital or the person, as the case may be, were a reference to the relevant hospital.(b) any property would, but for this clause, be declared or directed on or after the appointed day to be held by any person for, or for the benefit of, or in trust for, a unit or the purposes of a unit,(2) In this clause—relevant hospital, in relation to a unit, means—(a) where the unit is the Cardio-renal Unit, the Endocrine Unit or the Renal Unit—The Royal North Shore Hospital of Sydney, and(b) where the unit is the Kanematsu Memorial Institute, the Melanoma Unit or the Solid Tissue Tumour Unit—The Royal Prince Alfred Hospital, and(c) where the unit is the Immunology Unit or the Radiation Oncology Unit—the Newcastle Mater Misericordiae Hospital (Waratah), and(d) where the unit is the Biorheology Unit—The Rachel Forster Hospital.unit means a unit of The Sydney Hospital existing immediately before 1 October 1982, being one of the following—(a) Biorheology Unit,(b) Cardio-renal Unit,(c) Endocrine Unit,(d) Immunology Unit,(e) Kanematsu Memorial Institute,(f) Melanoma Unit,(g) Radiation Oncology Unit,(h) Renal Unit,(i) Solid Tissue Tumour Unit.(3) Subclauses (1) and (2) re-enact (with minor modifications) the definition of unit in section 3 (1), and section 5, of the Sydney Hospital (Trust Property) Act 1984 and are transferred provisions to which section 30A of the Interpretation Act 1987 applies.
sch 8: Ins 2012 No 42, Sch 4.6.
Schedule 9 (Repealed)
sch 9: Ins 2014 No 60, Sch 1 [6]. Rep 2018 No 11, Sch 3.6 [18].
Dictionary
(Section 3)
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
Part 1 Definitions
affiliated health organisation—see section 13.
Ambulance Service of NSW—see section 67A.
ambulance services means services relating to the work of rendering first aid to, and the transport of, sick and injured persons.
appellant means a person who appeals under section 106.
appoint, in relation to a visiting practitioner, includes re-appoint.
arbitrator means a person appointed under section 90 to be an arbitrator.
area of a local health district means the area described in Column 2 or 3 (or both) of Schedule 1 in respect of which the local health district is constituted.
assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents.
Association means the Australian Medical Association (NSW) Limited.
means a person appointed under section 124.
board governed health corporation means a statutory health corporation that, as specified in Schedule 2, is governed by a board.
by-laws means by-laws under this Act.
chief executive—
(a) of a local health district—means the chief executive of that district, or
(b) of a statutory health corporation—means the chief executive of that corporation, or
(c) of an affiliated health organisation—means the person who is responsible to the governing body of the organisation for the management of its recognised establishments and recognised services.
chief executive governed health corporation means a statutory health corporation that, as specified in Schedule 2, is governed by a chief executive.
Committee means a Committee of Review appointed by the Minister under section 108.
conviction means a conviction within the meaning of the Criminal Records Act 1991.
declared affiliated health organisation—see section 62A.
eligible person has the same meaning as it has in the Health Insurance Act 1973 of the Commonwealth.
exercise of a function includes performance of a duty.
fee-for-service contract—see section 82.
financial year means the period of 12 months beginning on 1 July.
function includes a power, authority or duty.
governing body of an affiliated health organisation means the person or the board or other body that is responsible for the management of the organisation in relation to its recognised establishments and recognised services.
Health Administration Corporation means the Health Administration Corporation constituted by the Health Administration Act 1982.
health corporation board means a health corporation board constituted under section 46 for a statutory health corporation.
health institution means an institution (other than a hospital) by or at which health services or health support services are provided.
Health Secretary means the Secretary of the Ministry of Health.
health service means any of the following—
(a) any hospital service,
(b) any medical service,
(c) any paramedical service,
(d) any community health service,
(e) any environmental health service,
(e1) the supply or fitting of any prosthesis or therapeutic device,
(f) any other service (including any service of a class or description prescribed by the regulations) relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or injury to persons.
health support service means a service that is provided in aid or support of a health service, such as—and includes a service prescribed by the regulations.
(a) the professional, technical or other education or training of persons to be employed within the public health system to provide health services, or
(b) the procurement or supply (or both) of goods, substances or services to providers of health services, or
(c) the planning or construction of any building or facility for use in the provision of health services, or
(d) the provision of corporate services to providers of health services,
honorary ambulance officer means a person appointed to be an honorary ambulance officer under section 67H.
honorary contract—see section 84.
honorary medical officer—see section 79.
hospital means an institution at which relief is given to sick or injured people through the provision of care or treatment.
liabilities means any liabilities, debts or obligations (whether present or future, whether vested or contingent and whether personal or assignable).
local health district—see section 8.
local health district board means a local health district board for a local health district established under section 26.
Medical Services Committee means the Medical Services Committee established under section 20B of the Health Administration Act 1982.
Medicare Agreement means the Agreement (as in force from time to time) between the Commonwealth and the States referred to in section 24 of the Health Insurance Act 1973 of the Commonwealth.
Medicare Principles and Commitments—see section 68.
member of the NSW Health Service means any person who is employed under Part 1 of Chapter 9 in the NSW Health Service.
modification includes addition, exception, omission or substitution.
National Health Reform Agreement has the same meaning as it has in Schedule 6A and includes any agreement that replaces or supersedes that Agreement.
non-chargeable hospital service means any health service provided to a patient by a public hospital that is a recognized hospital and for which it has been agreed under the Medicare Agreement that the patient is not to be charged, but only if the Medicare Agreement is in force at the time the service is provided.
NSW Health Service means the NSW Health Service referred to in section 115.
NSW Health Service senior executive means a person employed in the NSW Health Service as a NSW Health Service senior executive.
nursing home means a nursing home within the meaning of the Public Health Act 2010.
practice company means a corporation (however incorporated) that is controlled or conducted by a medical practitioner and by means of which the medical practitioner conducts his or her medical practice.
private health facility means a private health facility within the meaning of the Private Health Facilities Act 2007.
public health organisation—see section 7.
public health system—see section 6.
public hospital—see section 15.
recognised establishment of an affiliated health organisation means a hospital or health institution of the organisation that is listed in column 2 of Schedule 3 next to its name.
recognised service of an affiliated health organisation means a health service or health support service of the organisation that is listed in column 2 of Schedule 3 next to its name.
recognized hospital has the same meaning as it has in the Health Insurance Act 1973 of the Commonwealth.
relevant Minister means the Minister administering the Industrial Relations Act 1996 for the time being.
rights means any rights, powers, privileges or immunities (whether present or future, whether vested or contingent and whether personal or assignable).
role of a NSW Health Service senior executive means the duties and responsibilities of the executive.
serious sex or violence offence means an offence involving sexual activity, sexual touching or a sexual act, physical violence or the threat of physical violence that—
(a) if committed in New South Wales, is punishable by imprisonment for 12 months or more, or
(b) if committed elsewhere than in New South Wales, would have been an offence punishable by imprisonment for 12 months or more if committed in New South Wales.
service contract—see section 80.
sessional contract—see section 83.
sexual touching and sexual act have the same meanings as in Division 10 of Part 3 of the Crimes Act 1900.
specialty network governed health corporation means a statutory health corporation that, as specified in Schedule 2, is specialty network governed.
standard service contract—see section 87 (2).
statutory health corporation—see section 11.
statutory health organisation means a local health district or a statutory health corporation.
visiting medical officer—see section 78.
visiting practitioner—see section 76.
Part 2 Other expressions
1 References to acts, omissions or things of affiliated health organisations
(1) A reference in this or any other Act (however expressed) to any act, omission or thing of an affiliated health organisation in relation to any of its recognised establishments or recognised services—(a) in the case of an affiliated health organisation that is unincorporated—is a reference to an act, omission or thing of the governing body of the organisation or a member of that body (as the case may be) in relation to that establishment or service, or(b) in the case of an affiliated health organisation that is incorporated—is a reference to an act, omission or thing of the corporate body constituting the organisation in relation to that establishment or service.(2) A reference in this or any other Act (however expressed) to—(a) a hospital, health institution, health service or health support service of an affiliated health organisation is a reference to a hospital, health institution, health service or health support service that is a recognised establishment or recognised service of the organisation, or(b) the staff, assets, rights or liabilities of an affiliated health organisation is a reference to the staff, assets, rights or liabilities of the organisation relating solely or principally to the operation of the recognised establishments or the provision of the recognised services of the organisation.
2 References to control of hospitals, health institutions, health services or health support services
A reference in this Act to a hospital, health institution, health service or health support service controlled by the Crown or any public health organisation or other body or person includes a reference to a hospital, health institution or service that is conducted by or on behalf of such an organisation, body or person.
3 References to serious sex or violence offence
A reference in this Act to a serious sex or violence offence includes a reference to an attempt to commit a serious sex or violence offence or a conspiracy to commit such an offence.
Dictionary: Am 1999 No 85, Sch 2.28 [2]; 1999 No 94, Sch 4.114; 2004 No 87, Sch 2 [9]–[11]; 2004 No 92, Sch 2 [42]–[45]; 2005 No 98, Sch 3.30 [2]; 2006 No 2, Sch 2 [65] [66]; 2007 No 9, Sch 5.13 [2] [3]; 2007 No 89, Sch 2.5 [6]; 2010 No 34, Sch 2.27 [18]; 2010 No 97, Sch 1.1 [49] [50]; 2010 No 127, Sch 4.10; 2011 No 4, Schs 1.1 [11], 1.2 [14]; 2012 No 36, Sch 1 [6]; 2014 No 33, Sch 3.13 [4]; 2016 No 2, Sch 2 [24] [25]; 2018 No 33, Sch 5.9 [6] [7].