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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
TASMANIAN HEALTH SERVICE BILL 2018
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
PART 2 - MINISTERIAL CHARTER
4. Minister to issue ministerial charter
5. When ministerial charter takes effect
6. THS and Secretary to comply with ministerial charter
PART 3 - FUNCTIONS OF SECRETARY
Division 1 - General functions of Secretary
7. Role of Secretary
8. Functions of Secretary under this Act
Division 2 - Service plans
9. Service plan
10. Contents of service plan
11. Amendment of service plan
Division 3 - Management of THS performance
12. Directions
[Bill 3]-X
Division 4 - Advisory panels
13. Advisory panels
14. Provision of information to advisory panels
PART 4 - TASMANIAN HEALTH SERVICE
Division 1 - Continuance of THS
15. Tasmanian Health Service continued
Division 2 - Purposes, powers and functions of THS
16. Purposes of THS
17. Functions of THS
18. Performance of certain functions not mandatory
19. Powers of THS
20. Limitations on powers of THS
21. Delegation
22. THS subject to direction of Secretary
23. Employees
24. Volunteers
25. THS to be local hospital network
Division 3 - Executive
26. Appointment of persons to constitute Executive
27. Role of Executive
28. Functions of Executive
29. Liability
30. Annual report
Division 4 - Financial matters
31. Funds of THS
32. Authorised deposit-taking institution accounts
33. Accounting records
34. Effect of Financial Agreement Act 1994
35. Notification to Secretary and Ministers of certain developments
2
PART 5 - MISCELLANEOUS
36. Certain instruments not statutory rules
37. Transitional and savings provisions
38. Employees under former Act transferred
39. Liabilities, &c., in respect of certain contracts
40. Application of certain occupation agreements
41. Regulations
42. Administration of Act
43. Legislation repealed
SCHEDULE 1 - ADVISORY PANELS
SCHEDULE 2 - LEGISLATION REPEALED
3
4
TASMANIAN HEALTH SERVICE BILL 2018
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
3 May 2018
(Brought in by the Minister for Health, the Honourable
Michael Darrel Joseph Ferguson)
A BILL FOR
An Act to continue the Tasmanian Health Service
established under the Tasmanian Health Organisations Act
2011, to provide for the role of the Secretary and the
Executive in relation to the Tasmanian Health Service, to
repeal the Tasmanian Health Organisations Act 2011, and
for related purposes
Be it enacted by Her 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:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Tasmanian Health
Service Act 2018.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 3] 5
Tasmanian Health Service Act 2018
Act No. of 2018
s. 3 Part 1 - Preliminary
3. Interpretation
In this Act, unless the contrary intention
appears -
advisory panel means an advisory panel
established under section 13(1);
employee, in relation to the THS, means a
person who is, under section 23, made
available to the THS for the purposes of
the THS;
Executive means the Executive appointed
under section 26(1);
function includes duty;
health institution means an institution (other
than a hospital) by or at which health
services or health support services are
provided;
health service means any of the following:
(a) a hospital service;
(b) a medical service;
(c) a paramedical service;
(d) a community health service;
(e) the supply or fitting of any
prosthesis or therapeutic device;
(f) any other service (including any
service of a class, or description,
6
Tasmanian Health Service Act 2018
Act No. of 2018
Part 1 - Preliminary s. 3
that is prescribed) 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 -
but does not include a service prescribed
to not be a health service;
health support service means a service that is
provided in aid or support of a health
service and includes, but is not limited to
including, the following:
(a) the professional, technical or
other education or training of
persons to be employed or
engaged by the THS or the
Crown to provide health services;
(b) the procurement or supply, or
both, of goods, substances or
services to providers of health
services;
(c) the planning or construction of
any building or facility for use in
the provision of health services;
(d) the provision of corporate
services to providers of health
services;
(e) a service prescribed to be a health
support service;
7
Tasmanian Health Service Act 2018
Act No. of 2018
s. 3 Part 1 - Preliminary
hospital services means services provided by
or on behalf of a public hospital;
medical service means a service, related to
ensuring the health of a person, that is
provided by -
(a) a health practitioner within the
meaning of the Health
Practitioner Regulation National
Law (Tasmania); or
(b) a member of a class of prescribed
persons;
ministerial charter means the ministerial
charter that is in effect from time to time
under section 5;
public hospital means a hospital that is under
the control of the THS;
Secretary means the Secretary of the
Department;
service plan means a service plan approved
under section 9;
THS means the Tasmanian Health Service
continued under section 15 and includes
any subsidiary of the THS.
8
Tasmanian Health Service Act 2018
Act No. of 2018
Part 2 - Ministerial Charter s. 4
PART 2 - MINISTERIAL CHARTER
4. Minister to issue ministerial charter
(1) The Minister must issue a ministerial charter.
(2) A ministerial charter is to specify the Minister's
broad policy expectations for the Secretary and
the THS.
(3) A ministerial charter -
(a) may not extend or limit the functions and
powers of the THS or the Secretary; and
(b) may not prevent the performance and
exercise by the THS, or the Secretary, of
the functions and powers of the THS, or
the Secretary, respectively.
(4) A ministerial charter is to be in writing and
signed by the Minister.
(5) The Minister, in writing, signed by the Minister,
may, of his or her own motion or on the request
of the Secretary, amend or revoke the ministerial
charter.
(6) The Minister must cause a copy of a ministerial
charter, and any amendment or revocation of a
ministerial charter, to be laid before each House
of Parliament within 10 sitting-days of that
House after the charter, amendment or
revocation, as the case may be, has been signed
by the Minister.
9
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Act No. of 2018
s. 5 Part 2 - Ministerial Charter
5. When ministerial charter takes effect
(1) The Minister is to provide to the Secretary and
the Executive a copy of the ministerial charter
and of an amendment or revocation of the
ministerial charter.
(2) A ministerial charter, and an amendment or
revocation of a ministerial charter, take effect on
a day specified in the charter, amendment or
revocation, as the case may be.
(3) A day specified in a charter, amendment or
revocation as the day on which the charter,
amendment or revocation takes effect is to be a
day that is not earlier than the day on which a
copy of the charter, the amendment or the
revocation is provided to the Secretary and the
Executive under subsection (1).
6. THS and Secretary to comply with ministerial
charter
(1) The THS must conduct the business and affairs
of the THS in a manner that is consistent with
the ministerial charter.
(2) The Secretary must carry out his or her
functions, and exercise his or her powers, under
this Act in a manner that is consistent with the
ministerial charter.
(3) If the ministerial charter and the service plan in
relation to a financial year, are inconsistent, the
service plan prevails, for the financial year, to
the extent of the inconsistency.
10
Tasmanian Health Service Act 2018
Act No. of 2018
Part 3 - Functions of Secretary s. 7
PART 3 - FUNCTIONS OF SECRETARY
Division 1 - General functions of Secretary
7. Role of Secretary
The Secretary is responsible to the Minister for
the performance of the THS and the Executive.
8. Functions of Secretary under this Act
The Secretary has the following functions under
this Act:
(a) planning for the delivery by the THS,
over the long term, of health services and
health support services, including by
planning for the provision of
infrastructure;
(b) assisting the Minister to determine the
health services, and the health support
services, that are to be provided by the
THS in a financial year by submitting for
the approval of the Minister the service
plan for the financial year;
(c) monitoring the delivery by the THS of
health services, and health support
services, in accordance with the service
plan for a financial year;
(d) ensuring the performance and exercise by
the Executive of the functions and
powers of the Executive and the THS;
11
Tasmanian Health Service Act 2018
Act No. of 2018
s. 9 Part 3 - Functions of Secretary
(e) ensuring that there are appropriate
mechanisms, including by way of
advisory panels, for consultation and
engagement between the THS and
persons interested in the delivery by or
on behalf of the THS of health services
and health support services.
Division 2 - Service plans
9. Service plan
(1) The Secretary, after consultation with the THS,
is to provide to the Minister, before 1 June in a
year, a proposed service plan that is to apply to
the THS for the following financial year.
(2) The Minister, after receiving a proposed service
plan under subsection (1) or (3), may -
(a) approve the proposed service plan; or
(b) request the Secretary to alter the
proposed service plan and provide to the
Minister a further proposed service plan
as so altered.
(3) The Secretary, if requested to do so by the
Minister under subsection (2)(b), may provide to
the Minister a proposed service plan altered as
requested.
(4) The Minister is to approve under subsection (2),
before 30 June in a year, a proposed service plan
that is to apply to the THS for the following
financial year.
12
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Act No. of 2018
Part 3 - Functions of Secretary s. 10
(5) If the Minister approves a proposed service plan
under subsection (2), the service plan, as
amended if at all under section 11, applies to the
THS for the following financial year.
(6) The Minister must, as soon as practicable after
approving a service plan, provide a copy of the
plan to the Secretary and the Executive.
(7) The Minister must cause to be laid before each
House of Parliament a copy of a service plan
approved by the Minister under this section,
within 10 sitting-days of that House after
approving the service plan.
10. Contents of service plan
(1) A service plan must include -
(a) a schedule of services to be provided by
or on behalf of the THS and the
estimated funding to be provided in
relation to the provision of those
services; and
(b) performance standards, performance
targets and performance measures for the
THS; and
(c) standards of patient care and service
delivery; and
(d) requirements for the THS to report on its
performance, as required by or under
another provision of this Act or
otherwise; and
13
Tasmanian Health Service Act 2018
Act No. of 2018
s. 11 Part 3 - Functions of Secretary
(e) a performance management process that
is to be in continuous operation in
respect of the THS.
(2) A service plan may include provisions in respect
of a matter, relating to the functions or powers of
the THS, that the Secretary thinks fit, including a
provision that limits the functions or powers of
the THS or specifies how the functions or
powers of the THS are to be performed or
exercised in relation to the matter.
(3) Despite subsection (2), a provision of a service
plan -
(a) may not prevent the THS from -
(i) performing or exercising a
function or power that the THS
must, under this or any other Act,
perform or exercise; or
(ii) otherwise complying with this or
any other Act; and
(b) may not extend the functions and powers
of the THS.
11. Amendment of service plan
(1) The Secretary, after consultation with the THS,
may provide to the Minister a proposed
amendment of the service plan for a financial
year.
14
Tasmanian Health Service Act 2018
Act No. of 2018
Part 3 - Functions of Secretary s. 11
(2) The Minister, after receiving a proposed
amendment of a service plan under
subsection (1) or (3), may -
(a) approve the proposed amendment of the
service plan; or
(b) request the Secretary to alter the
proposed amendment of the service plan
and provide to the Minister a further
proposed amendment of the service plan
as so altered.
(3) The Secretary, if requested to do so by the
Minister under subsection (2)(b), may provide to
the Minister a proposed amendment of a service
plan altered as requested.
(4) If the Minister approves a proposed amendment
of a service plan under subsection (2)(a), the
service plan is amended in accordance with the
amendment, on and from the date on which
notice of the approval of the amendment is
provided to the Executive under subsection (6).
(5) A service plan for a financial year may be
amended under subsection (1) at any time before
or during the financial year.
(6) The Minister, as soon as practicable after
approving an amendment of a service plan, must
provide a copy of the amendment to the
Secretary and the Executive.
(7) The Minister must cause to be laid before each
House of Parliament a copy of an amendment of
a service plan, approved by the Minister under
15
Tasmanian Health Service Act 2018
Act No. of 2018
s. 12 Part 3 - Functions of Secretary
this section, within 10 sitting-days of that House
after approving the amendment.
Division 3 - Management of THS performance
12. Directions
(1) The Secretary, by notice in writing, may give the
THS directions in relation to the performance of
the functions, or the exercise of the powers, of
the THS.
(2) A direction given under subsection (1) to the
THS -
(a) may limit the performance or exercise of
the functions or powers of the THS but
may not prevent the THS from -
(i) performing or exercising a
function or power that the THS
must, under this or any other Act,
perform or exercise; or
(ii) otherwise complying with this or
any other Act; and
(b) may not extend the functions and powers
of the THS.
(3) If a direction given under subsection (1) and the
service plan in relation to a financial year are
inconsistent, the service plan prevails in relation
to the financial year to the extent of the
inconsistency.
16
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Act No. of 2018
Part 3 - Functions of Secretary s. 13
(4) A direction given under subsection (1) may not
refer to the health care or health services
provided to a particular person unless -
(a) the Secretary has received advice, in
writing, from a medical practitioner, that
it is necessary for the health of the person
that an action be taken, or not taken, by
the THS; and
(b) the direction is in accordance with that
advice.
Division 4 - Advisory panels
13. Advisory panels
(1) The Secretary may establish the advisory panels
that he or she considers appropriate.
(2) An advisory panel is to consist of -
(a) the members that the Secretary considers
appropriate; and
(b) a chairperson appointed by the Secretary.
(3) An advisory panel has the function of providing
to the Secretary, or the Executive, the advice that
the Secretary requests the advisory panel to
provide to the Secretary, or the Executive,
respectively.
(4) Schedule 1 has effect in relation to members of
advisory panels.
17
Tasmanian Health Service Act 2018
Act No. of 2018
s. 14 Part 3 - Functions of Secretary
14. Provision of information to advisory panels
(1) A person may provide information to an
advisory panel.
(2) A person who provides information to an
advisory panel -
(a) cannot, by virtue of providing the
information, be held to have breached
any code of professional etiquette or
ethics, to have departed from any
accepted standards of professional
conduct or to have contravened any Act -
(i) in relation to which the
Department is the responsible
Department; or
(ii) in relation to which another
department, one of the primary
functions of which relates to
human health, is the responsible
Department; and
(b) does not, to the extent that he or she has
acted in good faith, incur any civil or
criminal liability in respect of providing
the information.
(3) A person who is, or has been, a member of an
advisory panel must not, either directly or
indirectly, record, divulge or make use of
information obtained by the panel that identifies,
or that could reasonably be expected to lead to
the identification of, the person to whom the
information relates, except -
18
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Act No. of 2018
Part 3 - Functions of Secretary s. 14
(a) to the extent necessary for the
performance of the functions of that
advisory panel; or
(b) in other prescribed circumstances.
19
Tasmanian Health Service Act 2018
Act No. of 2018
s. 15 Part 4 - Tasmanian Health Service
PART 4 - TASMANIAN HEALTH SERVICE
Division 1 - Continuance of THS
15. Tasmanian Health Service continued
(1) The Tasmanian Health Service established under
the Tasmanian Health Organisations Act 2011,
as in force immediately before that Act is
repealed by this Act, is, by this subsection,
continued as a body corporate of the same name.
(2) The Tasmanian Health Service continued under
subsection (1) (the THS) -
(a) has perpetual succession; and
(b) is to have a common seal; and
(c) may sue and be sued in its corporate
name; and
(d) subject to this Act, may do, and be
subject to, all other things that a body
corporate may, by law, do and be subject
to, and that are necessary for, or
incidental to, the purposes for which the
THS is constituted or the performance of
its functions; and
(e) represents the Crown.
(3) All courts, judges and persons acting judicially
are to take judicial notice of the common seal of
the THS affixed to a document and are to
presume that it was duly affixed.
20
Tasmanian Health Service Act 2018
Act No. of 2018
Part 4 - Tasmanian Health Service s. 16
Division 2 - Purposes, powers and functions of THS
16. Purposes of THS
(1) The primary purposes of the THS are -
(a) to promote and maintain the health of
persons who are in Tasmania; and
(b) to ensure the provision of care and
treatment to, and the easing of the
suffering of, persons with health
problems in Tasmania.
(2) Nothing in subsection (1) is to be taken to
prevent the THS from performing or exercising
its functions or powers, outside Tasmania, if it is
permitted to do so by an approval under
section 20(2).
(3) The THS is to perform and exercise its functions
and powers other than for the purpose of
financial gain.
17. Functions of THS
The THS has the following functions:
(a) to ensure that the broad policy
expectations of the Minister, as specified
in the ministerial charter, are achieved;
(b) to provide the health services, and health
support services, that it is required, under
the relevant service plan, to provide, and
to provide those services to the
21
Tasmanian Health Service Act 2018
Act No. of 2018
s. 17 Part 4 - Tasmanian Health Service
standards, and within the budget, set out
in that plan;
(c) to conduct and manage public hospitals,
health institutions, health services, and
health support services, that are under the
THS's control;
(d) to ensure the effective provision of health
services, and health support services, that
are purchased by the THS;
(e) to manage the THS's budget, as
determined by the service plan, and its
other funds, so as to ensure -
(i) the efficient and economic
operation of the public hospitals,
health institutions, health
services, and health support
services, that are under the THS's
control; and
(ii) the efficient and economic
delivery of health services, and
health support services, that are
purchased by the THS; and
(iii) the efficient and economic use of
its resources;
(f) to consult and collaborate, as appropriate,
with other providers of health services
and health support services, in the
planning and delivery of health services
and health support services;
22
Tasmanian Health Service Act 2018
Act No. of 2018
Part 4 - Tasmanian Health Service s. 18
(g) to provide training and education
relevant to the provision of health
services and health support services;
(h) to undertake research and development
relevant to the provision of health
services and health support services;
(i) to collect health data, and provide health
data, for the purposes of research and
reporting and for any other purposes that
may be prescribed;
(j) any other functions conferred on the THS
by this Act or any other Act or that are
prescribed.
18. Performance of certain functions not mandatory
(1) Nothing in this Act is to be taken to require the
THS to perform a function of the THS, or to
perform a function of the THS in a manner, or to
an extent, if the performance of the function, or
the performance of the function in that manner,
or to that extent -
(a) is not expressly stated to be a function
that the THS must perform, or a function
that must be performed in that manner or
to that extent; or
(b) is not required under the relevant service
plan to be performed by the THS; or
23
Tasmanian Health Service Act 2018
Act No. of 2018
s. 19 Part 4 - Tasmanian Health Service
(c) would be in contravention of a direction
given to the THS by the Secretary under
this or any other Act; or
(d) would be in contravention of a
requirement imposed by or under this or
any other Act.
(2) A function is not, by reason only that it is
specified in a provision of this Act to be a
function of the THS, to be taken to be a function
that the THS must perform.
19. Powers of THS
Subject to section 20, the THS has the following
powers:
(a) to acquire, hold, dispose of and otherwise
deal with property;
(b) to enter into contracts, other than
contracts of employment;
(c) to receive gifts, donations or bequests;
(d) to manage trust funds for any trust that
the THS registers in accordance with
section 20(1)(j);
(e) to participate in partnerships, trusts and
joint ventures and in arrangements for
the sharing of profits;
(f) to manage and maintain property;
24
Tasmanian Health Service Act 2018
Act No. of 2018
Part 4 - Tasmanian Health Service s. 20
(g) to charge fees for the delivery of services
and to waive all or part of such fees;
(h) to do all things necessary or convenient
to be done in connection with, or
incidental to, the performance and
exercise of its functions and powers.
20. Limitations on powers of THS
(1) Despite section 19, the THS may only exercise
the following powers with the approval of the
Minister and Treasurer under subsection (2) and
in accordance with any terms or conditions of
the approval:
(a) establish an overdraft;
(b) acquire, dispose of, lease, mortgage,
charge, hypothecate, or otherwise
transfer or encumber, any interest in real
property;
(c) invest the funds of the THS;
(d) pledge, charge or encumber any of the
THS's property;
(e) create a subsidiary;
(f) indemnify any person from liability or
guarantee the payment of money or the
performance of services by another
person;
(g) make a charitable donation;
25
Tasmanian Health Service Act 2018
Act No. of 2018
s. 20 Part 4 - Tasmanian Health Service
(h) apply for or obtain endorsement by the
Australian Tax Office as -
(i) a deductible gift recipient under
the category of public benevolent
institution; or
(ii) a charitable fund, charitable
institution, health promotion
charity or income tax exempt
fund;
(i) participate in partnerships, trusts and
joint ventures and in arrangements for
the sharing of profits;
(j) register a trust;
(k) register a company;
(l) provide services outside Tasmania's
territorial boundaries.
(2) The Minister and the Treasurer may, jointly,
grant an approval for the purposes of
subsection (1) in respect of a particular matter or
a class of matters.
(3) Despite section 19, the THS may only exercise
the following powers with the approval of the
Minister under subsection (4) and in accordance
with any terms or conditions of the approval:
(a) charge fees other than as prescribed from
time to time under this or any other Act;
(b) waive fees for the delivery of services;
26
Tasmanian Health Service Act 2018
Act No. of 2018
Part 4 - Tasmanian Health Service s. 21
(c) enter into an agreement with -
(i) a government other than the
Tasmanian government; or
(ii) a government agency that is not a
Tasmanian government agency.
(4) The Minister may grant an approval for the
purposes of subsection (3) in respect of a
particular matter or a class of matters or in
respect of a particular person or class of persons,
or both.
(5) The THS does not have power to make a
political donation.
(6) The THS must not use its funds (including any
money or other assets that it receives by grant,
contribution or otherwise) for any purpose other
than the performance of its functions or the
exercise of its powers.
21. Delegation
The THS, by instrument in writing, may delegate
to a person, or a class of persons, specified in the
instrument, the performance or exercise of the
functions or powers of the THS under this Act or
any other Act (other than this power of
delegation) that are specified in the instrument.
27
Tasmanian Health Service Act 2018
Act No. of 2018
s. 22 Part 4 - Tasmanian Health Service
22. THS subject to direction of Secretary
The THS must comply with any direction of the
Secretary given to the THS under this or any
other Act.
23. Employees
The THS may make arrangements, with the
Secretary, for State Service officers, or State
Service employees, of the Department to be
made available to the THS for the purposes of
the THS.
24. Volunteers
The THS may make use of the services provided
by volunteers.
25. THS to be local hospital network
The THS is intended to be a local hospital
network for 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.
Division 3 - Executive
26. Appointment of persons to constitute Executive
(1) The Secretary may appoint a person, or persons,
who are employees to be, or to be a member of,
the Executive.
28
Tasmanian Health Service Act 2018
Act No. of 2018
Part 4 - Tasmanian Health Service s. 27
(2) A person appointed to be, or to be a member of,
the Executive holds that office in conjunction
with State Service employment.
(3) The Secretary may terminate the appointment of
a person to be, or to be a member of, the
Executive.
(4) Without limiting the Secretary's power under
subsection (3), the Secretary may terminate the
appointment of a person to be, or to be a member
of, the Executive if the Secretary is satisfied that,
during the period in which the person was, or
was a member of, the Executive, the person
failed to take all reasonable steps to ensure the
compliance by the THS with -
(a) a direction given to the THS by the
Secretary under this or any other Act; or
(b) a requirement imposed on the THS by or
under this or any other Act.
27. Role of Executive
(1) The Executive is responsible to the Secretary
for -
(a) the administration and management of
the THS; and
(b) the performance and exercise by the THS
of the functions and powers of the THS;
and
(c) compliance with any directions given to
the THS under this Act.
29
Tasmanian Health Service Act 2018
Act No. of 2018
s. 28 Part 4 - Tasmanian Health Service
(2) Any matter or thing done by the Executive in the
name of, or on behalf of, the THS is to be taken
to have been done by the THS.
28. Functions of Executive
The functions of the Executive are -
(a) to administer and manage the THS; and
(b) to perform and exercise the functions and
powers of the THS; and
(c) to ensure that the health services, and
health support services, that the THS is
required, under the relevant service plan,
to provide, are provided by the THS to
the standards, and within the budget, set
out in that plan; and
(d) to manage and monitor, and report to the
Secretary on, the administration and
financial performance of the THS, as
required by the Secretary; and
(e) to establish appropriate management and
administrative structures for the THS;
and
(f) any other functions specified by the
Secretary.
29. Liability
(1) A person who is, or constitutes, the Executive
does not incur any personal liability in respect of
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any act done, or omitted to be done, in good
faith, in the performance or exercise, or the
purported performance or exercise, of any
function or power of the Executive under this
Act.
(2) Subsection (1) does not preclude the Crown or
the THS from incurring liability that a person
would, but for that subsection, incur.
30. Annual report
(1) The Executive is to cause to be prepared, and to
submit to the Secretary before 30 September in a
year, a report (an annual report) in relation to
the previous financial year.
(2) The annual report in relation to a financial year
is to include -
(a) the financial statements of the THS for
the financial year; and
(b) a copy of the Auditor-General's opinion,
in relation to the financial statements,
provided to the Executive under section
19 of the Audit Act 2008; and
(c) a report on the operations of the THS
during the financial year; and
(d) a report on the performance of the THS
during the financial year; and
(e) any other information that the Executive
considers to be appropriate or necessary
to properly inform the Parliament as to
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s. 31 Part 4 - Tasmanian Health Service
the performance and progress of the THS
during the financial year.
(3) The Secretary is to submit to the Minister, before
15 October in a year, the annual report in
relation to the previous financial year submitted
to the Secretary under subsection (1).
(4) The Minister is, before 31 October in a year, to
table before both Houses of Parliament the
annual report submitted to him or her under
subsection (3) in respect of the previous
financial year.
(5) If the Minister is unable to comply with
subsection (4) because, after the annual report is
submitted to the Minister and before 31 October
in a year, a House of Parliament is not sitting,
the Minister is to be taken to have complied with
that subsection if the Minister -
(a) provides a copy of the annual report to
the Clerk of the House of Parliament as
soon as practicable after 31 October; and
(b) tables a copy of the annual report before
the House of Parliament within the next
7 sitting-days of the House.
(6) Section 36 of the State Service Act 2000 does not
apply in respect of the THS.
Division 4 - Financial matters
31. Funds of THS
(1) The funds of the THS consist of -
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(a) any money received from the
Commonwealth or the State, whether
directly or through an authority
established under an enactment of the
Commonwealth or the State; and
(b) any money received by the THS as fees
or charges; and
(c) any money otherwise received by the
THS in the course of performing its
functions or exercising its powers; and
(d) any money received by, or for the
purposes of, the THS as a gift, donation
or bequest; and
(e) any money received by the THS from
any other source.
(2) The funds of the THS are to be applied -
(a) in remunerating the employees of the
THS; and
(b) in payment or discharge of the expenses,
charges and obligations incurred or
undertaken by the THS in the
performance and exercise of the
functions and powers of the THS.
32. Authorised deposit-taking institution accounts
The THS may, with the approval in writing of
the Treasurer, open and maintain the authorised
deposit-taking institution accounts that it
considers necessary.
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s. 33 Part 4 - Tasmanian Health Service
33. Accounting records
(1) The THS is to ensure that -
(a) accounting records, that correctly record
and explain the transactions (including
any transactions as trustee) and financial
position of the THS, are kept; and
(b) those records are retained for a period of
not less than 7 years after the completion
of the transaction to which they relate or
another longer period that the Treasurer
determines by notice in writing to the
THS.
(2) The Treasurer may give directions in writing to
the THS in relation to the manner or form in
which accounting records are to be kept.
34. Effect of Financial Agreement Act 1994
If the Treasurer, under section 5(1) of the
Financial Agreement Act 1994, requires the THS
to do or refrain from doing anything for the
purpose of implementing the Agreement, within
the meaning of that Act, the THS must comply
with that requirement.
35. Notification to Secretary and Ministers of certain
developments
(1) The Executive is to notify the Secretary as soon
as practical of any development that, in the
opinion of the Executive, may significantly
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Part 4 - Tasmanian Health Service s. 35
affect the financial position or operating ability
of the THS.
(2) The Secretary is to notify the Minister and the
Treasurer as soon as practical of any
development that, in the opinion of the
Secretary, may significantly affect the financial
position or operating ability of the THS.
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s. 36 Part 5 - Miscellaneous
PART 5 - MISCELLANEOUS
36. Certain instruments not statutory rules
(1) The following instruments are not statutory rules
within the meaning of the Rules Publication Act
1953:
(a) a direction, notice, or instrument in
writing, issued under this Act by the
Secretary;
(b) a ministerial charter or service plan or an
amendment of a ministerial charter or
service plan.
(2) An instrument referred to in subsection (1) is not
to be taken to be an instrument of a legislative
character for the purposes of section 38A of the
Acts Interpretation Act 1931.
37. Transitional and savings provisions
(1) In this section -
chief executive officer means the chief
executive officer, within the meaning of
the former Act, of the former body
corporate;
commencement day means the day on which
the former Act is repealed by this Act;
former Act means the Tasmanian Health
Organisations Act 2011;
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former body corporate means the body
corporate that, immediately before the
commencement day, was referred to in
Schedule 1 to the former Act as the
Tasmanian Health Service;
governing council means the governing
council, within the meaning of the former
Act, of the former body corporate.
(2) A decision by the governing council, or the chief
executive officer, before the commencement day
is to be taken to have been made by the THS.
(3) A service agreement, within the meaning of the
former Act, entered into by the Minister and the
former body corporate in relation to the 2018-
2019 financial year, is to be taken to be a service
plan under this Act for that financial year.
(4) The financial statements, in relation to the
former body corporate, that, but for the repeal of
the former Act, the governing council would
have been required, under section 27 of the
Financial Management and Audit Act 1990, to
prepare in relation to the 2017-2018 financial
year are to be prepared by a person appointed by
the Minister for that purpose.
(5) The annual report, in relation to the former body
corporate, that, but for the repeal of the former
Act, the governing council would have been
required, under section 53 of the former Act, to
prepare in relation to the 2017-2018 financial
year is to be prepared by a person appointed by
the Minister for that purpose.
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s. 38 Part 5 - Miscellaneous
(6) Despite any provision of the State Service Act
2000 or the Financial Management and Audit
Act 1990, the Agency responsible for the
administration of this Act is not required to
prepare or provide, in the annual report, or the
financial statements, in respect of the Agency in
relation to the 2017-2018 financial year, any
information or financial statements in relation to
the THS.
38. Employees under former Act transferred
A person who was, immediately before the
commencement of this section, an employee
within the meaning of the Tasmanian Health
Organisations Act 2011 is to be taken to be a
person made available under section 23 to the
THS for the purposes of the THS, until the
Secretary determines otherwise or the person
ceases to be a State Service officer or a State
Service employee, as the case may be.
39. 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 out,
any building work that relates to a
building that is -
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Part 5 - Miscellaneous s. 39
(a) used, or occupied, wholly or in
part, by the THS; or
(b) intended by the THS to be used
or occupied wholly or in part by
the THS -
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 -
(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
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Act No. of 2018
s. 39 Part 5 - Miscellaneous
(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
the essential building services of
a building;
commencement day means the day on which
this section commences;
contract includes a contract, agreement,
arrangement and undertaking;
contractor means -
(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 building services has the same
meaning as it has in the Building Act
2016;
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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 the
THS; or
(b) intended by the THS to be used
wholly or in part by the THS -
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 day or the day on which any
other provision of this Act commences.
(3) This section does not apply to a relevant contract
to which the THS is a party.
(4) Subject to subsection (7), any loss or damage
incurred or suffered by the THS 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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s. 39 Part 5 - Miscellaneous
(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 day or the day 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 it may have
exercised if the Crown had incurred or suffered
that loss or damage instead of the THS.
(7) Subsections (4) and (6) do not apply to loss or
damage, referred to in subsection (4), arising in
relation to a relevant contract, that is incurred or
suffered by the THS on or after the date on
which the relevant contract was transferred
under the Tasmanian Health Organisations Act
2011 by the Crown to a Tasmanian Health
Organisation within the meaning of that Act.
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(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 the THS if the THS uses, or 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 the THS if it uses or occupies, or 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.
40. Application of certain occupation agreements
(1) In this section -
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.
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(3) This section does not apply to an occupation
agreement in respect of any period after the day
on which, under the Tasmanian Health
Organisations Act 2011, the occupation
agreement was transferred to a Tasmanian
Health Organisation within the meaning of that
Act.
(4) If the THS uses or occupies any premises to
which an occupation agreement relates, the THS
is taken to be a part of the Crown for the
purposes of that occupation agreement.
41. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may prescribe fees that may be
charged by the THS.
(3) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstances or
otherwise, specified in the regulations.
(4) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by the Secretary, the Minister or the
Treasurer.
(5) The regulations may -
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Part 5 - Miscellaneous s. 41
(a) provide for savings or transitional
matters necessary or expedient for
bringing this Act into operation; or
(b) provide for any of those savings or
transitional matters to take effect on the
day on which this section commences or
on a later day specified in the
regulations, whether the day so specified
is before, on or after the day on which
the regulations are made; or
(c) make provision 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, or substituted,
from time to time.
(6) A provision referred to in subsection (5) may
take effect on and from 1 July 2018 or on and
from a later day, including a day before the
notification of the provision in the Gazette.
(7) To the extent to which a provision referred to in
subsection (6) takes effect from a day that is
before the notification of the provision in the
Gazette, the provision does not operate so as -
(a) to affect, in a manner prejudicial to any
person (other than the State, the THS or
an authority of the State), the rights of
that person existing before the
notification; or
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s. 42 Part 5 - Miscellaneous
(b) to impose liabilities on any person (other
than the State, the THS or an authority of
the State) in respect of anything done or
omitted to be done before the
notification.
42. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Health; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Health
and Human Services.
43. Legislation repealed
The legislation specified in Schedule 2 is
repealed.
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sch. 1
SCHEDULE 1 - ADVISORY PANELS
Section 13(4)
1. Membership of advisory panels
(1) A member of an advisory panel -
(a) is to be appointed for the period that the
Secretary thinks fit; and
(b) may be removed from office by the
Secretary by notice in writing addressed
and delivered to that member; and
(c) may at any time resign his or her office
by notice in writing addressed and
delivered to the Secretary.
(2) The terms and conditions of office of a member
of an advisory panel, with respect to matters not
provided for in this section, are as determined by
the Secretary.
2. Meeting of advisory panels
(1) Meetings of an advisory panel may be convened
by the Secretary or by the chairperson of the
advisory panel.
(2) Subject to this Schedule, the procedure for the
calling of, and for the conduct of business at,
meetings of an advisory panel is to be
determined by the advisory panel.
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sch. 2
SCHEDULE 2 - LEGISLATION REPEALED
Section 43
Tasmanian Health Organisations Act 2011 (No. 51 of 2011)
48 Government Printer, Tasmania