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CLAUSE NOTES
Tasmanian Health Organisations Amendment Bill 2012
Summary The Bill addresses urgent technical matters and necessary clarifications
identified in implementation planning for the commencement of the
Tasmanian Health Organisations Act 2011, to remove any doubt as to the
operation of the Act through amendments in relation to transitional
regulation making powers, contracts and occupation agreements in the
Crown's name, and transfer provisions.
Clause 1 Short Title
Clause 2 Commencement
Provides for the Act to commence on Royal Assent.
Clause 3 Principal Act
Defines the Tasmanian Health Organisations Act 2011 as the Principal Act.
Clause 4 Section 79 amended (Regulations)
Amends Section 79 of the Principal Act by including subsections (5), (6)
and (7) to provide for the making of regulations of a savings or
transitional nature.
This will allow emerging savings and transitional matters consequent on
or for furthering the purposes of the Principal Act and the National
Health Reform Agreement between the Commonwealth and the State to
be dealt with where appropriate through the use of subordinate
legislation.
A specific transitional and saving regulation power is commonly included
in significant reform legislation.
To clarify this is only a power to address transitional purposes emerging
in the first 12 months of the operation of Tasmanian Health
Organisations, such regulations can only be made before 1 July 2013.
While they may take effect on and from 1 July 2012, if necessary before
publication in the Gazette, subsection (7) provides clarity as to the effect
of such a notice.
Any subordinate legislation made under this power or any other power in
the Principal Act remains disallowable by the Parliament if necessary, in
the usual way.
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Clause 5 Sections 81A and 81B inserted
Section 81A is inserted to provide that:
for building and procurement contracts (as defined) held by the
Crown, any loss or damage incurred by or suffered by a
Tasmanian Health Organisation in relation to that contract is
taken to be a loss or damage incurred by or suffered by the
Crown and is recoverable by the Crown.
the section applies to a relevant contract made, and any
breach, repudiation or termination arising, before or after the
commencement dates. This is to ensure existing contracts and
matters arising are covered, as well as any future contracts
made by the Crown. This amendment does not affect the
existing statutory power of Tasmanian Health Organisations to
enter contracts in their own name.
the section does not apply to a contract to which a Tasmanian
Health Organisation is a party, or to loss or damage incurred
after a contract is transferred under clause 4 of Schedule 6.
This is because if the Tasmanian Health Organisation is a party,
it can take action in relation to its own loss or damage directly.
a reference to the Crown in any indemnities or release given
to the Crown in contracts is taken to be a reference to the
relevant Tasmanian Health Organisation.
These provisions are required to ensure that loss and damage under
Crown contracts that is suffered by a Tasmanian Health Organisation
(not being a party to the contract) is still recoverable by the Crown as if
it were a loss to the Crown.
Section 81B is inserted to provide that for an occupation agreement, for
example a lease, held by the Crown for premises occupied by a
Tasmanian Health Organisation, the Tasmanian Health Organisation in
relation to that occupation agreement is taken to be part of the Crown.
This provision is required to ensure that the Crown does not breach any
occupancy agreements, and that use of the premises by a Tasmanian
Health Organisation is permitted under occupation agreements made by
the Crown. It does not apply if an existing occupation agreement is
transferred to a Tasmanian Health Organisation under clause 4 of
Schedule 6, as the organisation will then hold the occupation agreement
in its own name.
Section 81C provides that the provisions of the Principal Act that are
inserted or amended by this Act are taken to have commenced on 1 July
2012, if not otherwise commenced by that date. Given the urgency and
importance of the Bill's amendments, this is to ensure the provisions
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affecting the Tasmanian Health Organisations, which are being established
on 1 July 2012 by the Principal Act, are as clear as possible should passage
of the Bill be delayed.
Clause 6 Schedule 6 amended (Transitional and Savings Provisions)
Amends Schedule 6 of the Principal Act to provide for, and clarify,
arrangements in respect of transfers under clause 4 of that Schedule:
clause 6(a) amends the definitions in clause 1 by providing
necessary definitions of `contract' and `State tax'
clause 6(b) substitutes existing clause 4(1)(a) with a new
provision to clarify clause 4 extends to the transfer of contracts
to which the Crown is a party
clause 6(c) provides a necessary consequential amendment to
clause 4(1)(b) by inserting the word `contract'
clause 6(d) inserts a new clause 4(1A) to provide for a transfer
notice, if published by 1 July 2013, to be able to have effect on a
date before publication of the notice, but not before 1 July
2012. This is to assist management of transitional matters in the
first 12 months.
clause 6(e) and (f) relate to the insertion of a new clause
4(2)(e), clarifying that the Crown ceases to be a party to a
transferred contract unless the transfer notice provides
otherwise.
clause 6(g) inserts new subclauses (4), (5), (6) and (7) in clause 4
to clarify that:
o a transferred contract is taken to have been made by the
THO, and a reference to the Crown in such a contract is
taken to be or include as appropriate a reference to the
THO
o a person party to a transferred contract is not entitled to
terminate, claim there has been a breach or default, or
claim any remedy, only by reason of the transfer of that
contract, or of property, rights or obligations relevant to
that contract.
o no State tax is payable in respect of the transfer under
clause 4 of any contract, property, right or obligation; or
anything the Minister certifies as having been done as a
consequence of that transfer.
o the usual principal applies that a power to make a notice
includes a power to amend or revoke a notice. This
ensures an error or lack of certainty in a notice can be
addressed, to provide certainty to the Crown, THOs and
relevant parties.
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Clause 7 Repeal
Provides for automatic repeal of the Amendment Act.
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