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TASMANIA
__________
TASMANIAN HEALTH ORGANISATIONS
AMENDMENT BILL 2012
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 79 amended (Regulations)
5. Sections 81A, 81B and 81C inserted
81A. Liabilities, &c., in respect of certain contracts
81B. Application of certain occupation agreements
81C. Certain provisions to take effect from 1 July 2012
6. Schedule 6 amended (Transitional and Savings Provisions)
7. Repeal of Act
[Bill 22]-XI
2
TASMANIAN HEALTH ORGANISATIONS
AMENDMENT BILL 2012
(Brought in by the Minister for Health, the Honourable
Michelle Anne O'Byrne)
A BILL FOR
An Act to amend the Tasmanian Health Organisations Act
2011
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Tasmanian Health
Organisations Amendment Act 2012.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Principal Act
In this Act, the Tasmanian Health Organisations
Act 2011* is referred to as the Principal Act.
*No. 51 of 2011
[Bill 22] 3
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4. Section 79 amended (Regulations)
Section 79 of the Principal Act is amended by
inserting after subsection (4) the following
subsections:
(5) Regulations made before 1 July 2013
may contain provisions of a savings or
transitional nature -
(a) consequent on the enactment of,
or for furthering the purposes of,
this Act; or
(b) consequent on, or for furthering
the purposes of, the National
Health Reform Agreement
between the Commonwealth and
the States that was agreed to by
the Council of Australian
Governments on 2 August 2011,
as that Agreement is amended
from time to time.
(6) A provision referred to in subsection (5)
may take effect on and from 1 July 2012
or a later date, including a date before the
notification of the provision in the
Gazette.
(7) To the extent to which a provision
referred to in subsection (5) takes effect
from a date that is before the notification
of the provision in the Gazette, the
provision does not operate so as -
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Act No. of
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(a) to affect, in a manner prejudicial
to any person (other than the
State, a Tasmanian Health
Organisation or an authority of
the State), the rights of that
person existing before the
notification; or
(b) to impose liabilities on any
person (other than the State, a
Tasmanian Health Organisation
or an authority of the State), in
respect of anything done or
omitted to be done before the
notification.
5. Sections 81A, 81B and 81C inserted
After section 81 of the Principal Act, the
following sections are inserted in Part 8:
81A. Liabilities, &c., in respect of certain
contracts
(1) In this section -
building includes a part of a building;
building contract means a contract,
made between the Crown and one
or more other persons, pursuant
to which one or more of the other
persons has carried out, has
agreed to carry out, or is carrying
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Tasmanian Health Organisations Amendment Act 2012
Act No. of
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out, any building work that
relates to a building that is -
(a) used, or occupied, wholly
or in part, by a Tasmanian
Health Organisation; or
(b) intended by a Tasmanian
Health Organisation to be
used or occupied wholly
or in part by the
organisation -
but does not include a
procurement contract;
building work means -
(a) erecting, re-erecting,
constructing, altering,
repairing, underpinning,
demolishing or removing
a building; and
(b) adding to a building; and
(c) excavating or filling
incidental to an activity
referred to in
paragraph (a) or (b); and
(d) all work carried out in
conjunction with work
referred to in
paragraph (a), (b) or (c),
including but not limited
to -
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Act No. of
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(i) work in relation to
any system or
service in or for a
building; and
(ii) the preparation of
plans and
specifications; and
(iii) work carried out
by an architect,
engineer or
building designer;
and
(e) work carried out in the
vicinity of a building for a
purpose related to the use
or occupation of that
building; and
(f) any work for the
maintenance of an
essential safety and health
feature of a building;
commencement date means the date
on which this section
commences;
contract includes a contract,
agreement, arrangement and
undertaking;
contractor means -
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Act No. of
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(a) in relation to a building
contract, a person who, as
a party to the contract, has
carried out, or has agreed
to carry out, any building
work to which the
contract relates; and
(b) in relation to a
procurement contract, a
person who, as a party to
the contract, supplies,
agrees to supply, or has
supplied, goods,
substances or services;
Crown means the Crown in right of
Tasmania;
essential safety and health feature has
the same meaning as it has in the
Building Act 2000;
procurement contract means a
contract, made between the
Crown and one or more other
persons, pursuant to which one of
the other persons supplies, agrees
to supply, or has supplied, to the
Crown, goods, substances, or
services, that are -
(a) used, wholly or in part, by
a Tasmanian Health
Organisation; or
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Act No. of
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(b) intended by a Tasmanian
Health Organisation to be
used wholly or in part by
the organisation -
but does not include a building
contract;
relevant contract means -
(a) a building contract; or
(b) a procurement contract.
(2) This section applies to a relevant contract
whether the contract is made before or
after the commencement date or the date
on which any other provision of this Act
commences.
(3) This section does not apply to a relevant
contract to which a Tasmanian Health
Organisation is a party.
(4) Subject to subsection (7), any loss or
damage incurred or suffered by a
Tasmanian Health Organisation arising
out of -
(a) any breach or repudiation of a
relevant contract by the
contractor; or
(b) the termination of a relevant
contract by the Crown because of
the repudiation of the contract by
the contractor; or
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Act No. of
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(c) the termination of a relevant
contract by the Crown pursuant to
the exercise of a right to
terminate the contract set out in
the contract; or
(d) the termination of a relevant
contract pursuant to the exercise,
by any other person, of a
statutory power in connection
with the bankruptcy or insolvency
of the contractor -
is taken to be loss or damage incurred or
suffered by the Crown.
(5) For the avoidance of doubt,
subsection (4) applies to a breach,
repudiation, or termination, of a relevant
contract whether the breach, repudiation
or termination occurred before or after
the commencement date or the date on
which any other provision of this Act
commences.
(6) Without limiting subsection (4), the
Crown may exercise the same rights in
relation to loss or damage referred to in
that section as if the Crown had incurred
or suffered that loss or damage instead of
the Tasmanian Health Organisation that
incurred or suffered the loss or damage.
(7) Subsections (4) and (6) do not apply to
loss or damage, referred to in
subsection (4), arising in relation to a
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relevant contract, that is incurred or
suffered by a Tasmanian Health
Organisation on or after the date
specified in a notice under clause 4 of
Schedule 6 to be the date on which the
relevant contract is transferred under that
clause by the Crown to the Tasmanian
Health Organisation.
(8) A reference to the Crown in any
indemnity or release given by a
contractor to the Crown in a procurement
contract is taken to also be a reference to
any Tasmanian Health Organisation that
uses, or that intends to use, any of the
goods, substances or services that are
supplied, or have been agreed to be
supplied, by the contractor under the
contract.
(9) A reference to the Crown, in any
indemnity or release given by a
contractor to the Crown in a building
contract, is taken to also be a reference to
any Tasmanian Health Organisation that
uses or occupies, or that intends to use or
occupy, any building in respect of which
the contractor has carried out, or has
agreed to carry out, any building work.
81B. Application of certain occupation
agreements
(1) In this section -
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Crown means the Crown in right of
Tasmania;
occupation agreement means a lease,
an agreement for a lease, a
licence, or a tenancy agreement,
under which the Crown occupies,
or has the right to occupy, any
premises owned by another
person.
(2) This section applies to an occupation
agreement whether it is made before or
after the commencement of this section
or the date on which any other provision
of this Act commences.
(3) This section does not apply to an
occupation agreement in respect of any
period after the date specified in a notice
under clause 4 of Schedule 6 to be the
date on which the occupation agreement
is transferred to a Tasmanian Health
Organisation in accordance with that
clause.
(4) A Tasmanian Health Organisation that
uses or occupies any premises to which
an occupation agreement relates is taken
to be a part of the Crown for the purposes
of that occupation agreement.
81C. Certain provisions to take effect from 1 July
2012
If the Tasmanian Health Organisations
Amendment Act 2012 does not
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Act No. of
s. 6
commence on or before 1 July 2012, a
provision of this Act that is inserted or
amended by that Act is to be taken to
have commenced on 1 July 2012.
6. Schedule 6 amended (Transitional and Savings
Provisions)
Schedule 6 to the Principal Act is amended as
follows:
(a) by inserting the following definitions
after the definition of commencement day
in clause 1:
contract includes a contract,
agreement, arrangement and
undertaking;
State tax means any of the following,
if imposed by any Act or law of
Tasmania:
(a) a fee, including an
application fee and
registration fee;
(b) a tax, including a duty;
(c) a charge;
(b) by omitting paragraph (a) from clause
4(1) and substituting the following
paragraph:
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Act No. of
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(a) transfer, to a Tasmanian Health
Organisation specified in the
notice, on the day specified in the
notice as the day on which the
transfer is to occur -
(i) any contract to which the
Crown is a party; and
(ii) any property or right
vested in the Crown; and
(iii) any liability of the Crown,
or obligation of the
Crown, whether actual,
prospective or contingent;
and
(c) by inserting in clause 4(1)(b) "contract,"
after "such";
(d) by inserting the following subclause after
subclause (1) in clause 4:
(1A) A day specified in a notice under
subclause (1) as the date on
which a transfer is to occur -
(a) may, if the notice is
published in the Gazette
before 1 July 2013, be a
date before or after the
date of the notice but not
a date before 1 July 2012;
or
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Act No. of
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(b) may, if the notice is
published in the Gazette
after 1 July 2013, only be
a date after the date on
which the notice is
published.
(e) by omitting from clause 4(2)(d) "notice."
and substituting "notice; and";
(f) by inserting the following paragraph after
paragraph (d) in clause 4(2):
(e) the Crown ceases to be a party to
a contract specified in the notice
unless the notice provides
otherwise or except to the extent
specified in the notice.
(g) by inserting the following subclauses
after subclause (3) in clause 4:
(4) On and after the day specified in
a notice under subclause (1) -
(a) a contract specified in the
notice is taken to have
been made by the
Tasmanian Health
Organisation, specified in
the notice, in place of the
Crown; and
(b) a reference to the Crown
in a contract specified in
the notice is taken to be,
or include, as appropriate,
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Act No. of
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a reference to the
Tasmanian Health
Organisation specified in
the notice.
(5) A person who is a party to a
contract that is the subject of a
notice under subclause (1) is not
entitled to -
(a) terminate that contract; or
(b) claim that there has been
a breach or default of the
contract; or
(c) claim any remedy -
by reason only of the transfer by
virtue of a notice under
subclause (1) of that contract or
of property, a right, or an
obligation, to which that contract
relates or arising from that
contract.
(6) No State tax is payable in respect
of -
(a) the transfer under this
clause of any contract,
property, right or
obligation; or
(b) anything the Minister
certifies as having been
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Act No. of
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done as a consequence of
that transfer.
(7) The Minister, by notice published
in the Gazette, may amend or
revoke a notice published under
subclause (1).
7. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which it commences.
Government Printer, Tasmania 17