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CLAUSE NOTES
Tasmanian Health Organisations Bill 2011
Clause 1 Short Title
Clause 2 Commencement
Provides for the Act to commence on a day or days to be
proclaimed.
Clause 3 Objects of Act
Sets out the object of the Act and how it is to be achieved.
Clause 4 Interpretation
Provides the definitions of specific terms used in this Act.
Clause 5 Meaning of "material personal interest"
Provides the definition of this specific term. The definition is
consistent with the definition used in the Government Business
Enterprise Act.
Clause 6 Tasmanian Health Organisations established
This clause creates the Tasmanian Health Organisations by
reference to Schedule1. This is required to meet the
requirements of D11 of Schedule D of the National Health
Reform Agreement.
Clause 7 Operational areas of Tasmanian Health Organisations
Defines the geographical boundaries of each Tasmanian Health
Organisation, by reference to Schedule 2.
Clause 8 Establishment, &c., of Tasmanian Health Organisations
may be altered by the Governor
This Clause permits the creation, dissolution, amalgamation,
division or change of name of a Tasmanian Health Organisation
by order from the Governor. This clause is required to allow
future flexibility to adapt to changing circumstances and to not
bind future governments to the decision of the current
Tasmanian Government to establish three local hospital
networks.
An order making a change to a Tasmanian Health Organisation is
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a regulation and is thus subject to Parliamentary approval.
Clause 9 Legal entity of Tasmanian Health Organisations
Establishes Tasmanian Health Organisations as independent
statutory authorities. This is a requirement of the National
Health Reform Agreement (14 b. and D1)
Clause 10 Purposes of Tasmanian Health Organisations
Statement of broad purposes of Tasmanian Health Organisations
as service providers responsible for the overall health of its
population and the provision of care and treatment. The
purposes make explicit the purposes of Tasmanian Health
Organisations implicit in sections D2-D4 of Schedule D of the
National Health Reform Agreement.
Clause 11 Functions of Tasmanian Health Organisations
Sets out the functions of Tasmanian Health Organisations. The
functions are consistent with the roles and responsibilities of
local hospital networks as outlined in sections D2-D7 of
Schedule D the National Health Reform Agreement.
Clause 12 Powers of Tasmanian Health Organisations
Sets out the powers given to Tasmanian Health Organisations to
enable them to perform their functions under the Act. These
powers are required to enable Tasmanian Health Organisations
to meet the requirements of D4 and D5 of Schedule D of the
National Health Reform Agreement.
Clause 13 Limitations on powers of Tasmanian Health
Organisations
Sets out those powers that can only be exercised with the
explicit approval of the responsible Ministers. These powers
chiefly relate to matters around borrowing and quasi borrowing
activities and other matters of a financial or corporate
governance nature.
Clause 14 Governing councils
Establishes governing councils for Tasmanian Health
Organisations and provides for their accountability to the
responsible Ministers. This is a requirement of D14 of
Schedule D of the National Health Reform Agreement.
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Clause 15 Composition of membership
Sets out the skills and experience required for membership of
governing councils. This is consistent with the requirements of
D16 and D17 of Schedule D of the National Health Reform
Agreement.
Clause 16 Appointment of members
Provides for the responsible Ministers to appoint the members
of governing councils and sets minimum and maximum numbers
of members for governing councils. This meets the
requirements of D19 of Schedule D of the National Health
Reform Agreement. This clause also allows for common
membership and a common chair of Tasmanian Health
Organisations if required.
Clause 17 Acting Members
Provides for the appointment of acting members to cover absent
members other than the chairperson.
Clause 18 Acting chairperson
Provides for the appointment of an acting chairperson in the
absence of the chairperson.
Clause 19 Disclosure of interest of members
Requires governing council members to disclose material
personal interests and sets out the procedures for dealing with a
member's material personal interests and provides for
exemptions in limited circumstances.
Clause 20 Members to act honestly, &c.
Requires governing council members to act honestly and
exercise due care and diligence in the performance of their
duties and provides penalties for failing to do so.
Clause 21 Recovery of improper profit
Allows the recovery of any improper profit made by a governing
council member breaching section 20.
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Clause 22 Functions of governing councils
Sets out the functions of THO governing councils. The
functions are consistent with the roles and responsibilities of
local hospital network governing councils as outlined in sections
D14-D15 of Schedule D the National Health Reform
Agreement.
Clause 23 Powers of governing councils
Gives governing councils the powers to enable them to perform
their functions under the Act.
Clause 24 Delegation by governing councils
Allows governing councils to delegate functions or powers,
other than the power of delegation.
Clause 25 Meetings of governing councils
By reference to Schedule 4 of the Act this sets out the
procedures for meetings of the governing council.
Clause 26 Audit and risk sub-committees
Requires a governing council to establish an audit and risk sub-
committee and provides its function and specifies its
membership and procedures by reference to Schedule 5.
Clause 27 Other sub-committees
Allows a governing council to establish other sub-committees as
required.
Clause 28 Chief executive officer
Provides for the appointment of the chief executive officer
under section 29 of the State Service Act. This appointment will
be by the Premier or delegate as required under the State Service
Act, but the appointment will only be made on the
recommendation of the governing council. This effectively
makes the chief executive officer a State Service agency head.
The powers and delegations under the State Service Act are thus
held by each chief executive officer. This allows the chief
executive officer to recruit staff under the State Service Act.
Due to the requirements of the State Service Act, the
appointment will be recommended by the governing council and
be appointed by the Premier under that Act rather than
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appointed by the governing council with the approval of the
State Health Minister as required by section D19 of Schedule D
of the National Health Reform Agreement. The Australian
Government has approved the Tasmanian process as it is
virtually equivalent to the requirements of the National Health
Reform Agreement.
An appointment of a CEO under section 29 of the State Service
Act is consistent with usual practice for Government Business
Enterprises that are agencies such as, for example, the Port
Arthur Management Authority.
Clause 29 Powers and functions of chief executive officer
Outlines the role and functions of the chief executive officer as
operational manager of a Tasmanian Health Organisation and
specifies that the chief executive officer will be accountable to
the governing council. This is as required by D19 of Schedule D
of the National Health Reform Agreement. Most of the powers
and functions of the chief executive officer are specified through
the State Service Act by virtue of the chief executive officer being
an appointment under Section 29 of the State Service Act and do
not need to be restated in this Act.
Clause 30 Employees
Provides for employment of staff by Tasmanian Health
Organisations under the State Service Act.
Clause 31 Funds of Tasmanian Health Organisations
Describes the sources of funding for Tasmanian Health
Organisations and how funds may be used. The clause specifies
in very broad terms that funding can be used to meet the
requirements of the Tasmanian Health Organisation but does
not restrict how Tasmanian Health Organisations apply their
budget. This clause is to meet the requirement of Sections D2
and D5 a. of Schedule D of the National Health Reform
Agreement that local hospital networks will have their own
budget, and make active decisions about the management of
their budget.
Clause 32 Authorised deposit-taking institution accounts
Permits a Tasmanian Health Organisation, with the approval of
the Treasurer, to establish its own separate bank accounts. This
is a Requirement of D13 of Schedule D of the National Health
Reform Agreement. Treasurer approval is consistent with usual
practice for Government Business Enterprises.
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Clause 33 Accounting records
Requires a governing council to keep adequate accounting
records that properly represent the financial position of the
organisation and comply with Treasurer's Instructions and
directions from the Treasurer. This is part of the financial
accountability framework the State is required to implement
under Section 12 of Schedule D of the National Health Reform
Agreement and is consistent with usual practice for Government
Business Enterprises.
Clause 34 Financial statements
Requires a governing council to produce financial statements
that comply with the Financial Management and Audit Act 1990,
Treasurer's Instructions, any other relevant legislation and
directions from the Treasurer. This is part of the financial
accountability framework the State is required to implement
under Section 12 of Schedule D of the National Health Reform
Agreement and is consistent with usual practice for Government
Business Enterprises.
Clause 35 Treasurer's Instructions
Applies standard Treasurer's Instructions to Tasmanian Health
Organisations and allows specific Treasurer's Instructions to be
issued to Tasmanian Health Organisations. This clause also
specifies the matters that may be covered by Treasurer's
Instructions and how Instructions may be varied. This is part of
the financial accountability framework the State is required to
implement under Section 12 of Schedule D of the National
Health Reform Agreement and is consistent with usual practice
for Government Business Enterprises.
Clause 36 Matters relating to Audit Act 2008
Recognises the responsible Ministers as the relevant Minister for
the purposes of the Audit Act. This is consistent with usual
practice for Government Business Enterprises.
Clause 37 Effect of Financial Agreement Act 1994
Specifies that Tasmanian Health Organisations must follow the
Treasurer's requirements to ensure compliance with the
Agreement within the meaning of the Financial Agreement Act
1994. This is consistent with usual practice for Government
Business Enterprises.
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Clause 38 Certain services, &c., to be used by Tasmanian Health
Organisation
Allows the Minister to direct a Tasmanian Health Organisation
to use certain administrative services, medical services or
contractual arrangements. This clause is designed to specify
certain services that Tasmanian Health Organisations must use
(i.e. Tasmanian Ambulance Service, Tasmanian Risk Management
Fund, centralised Business Support Network for a range of
administrative services etc). The exact make up of services is
yet to be determined and will be subject to internal
commissioning and policy decisions. It will be essential for
meeting the requirements of Section 17 of the National Health
Reform Agreement for no net increase in bureaucracy and is
also needed to achieve scale efficiencies in a small jurisdiction
such as Tasmania.
It is expected that the services that Tasmanian Health
Organisations are required to use will need to demonstrate
value for money and that there will need to be a greater
transparency of costs for such services.
Clause 39 Ministerial charters
Provides the process for issuing a ministerial charter to provide
broad policy direction to a Tasmanian Health Organisation and
sets out the process to vary a ministerial charter. The clause
also requires the ministerial charter to be laid before each
House of Parliament. This is consistent with usual practice for
Government Business Enterprises. The ministerial charter
provides a basis for the development of strategic and operational
plans as required under D14 a. of Schedule D of the National
Health Reform Agreement.
Clause 40 Contents of ministerial charters
Specifies that a ministerial charter is to provide broad policy
direction to a Tasmanian Health Organisation and that a
ministerial charter may limit the functions and powers of a
Tasmanian Health Organisation but may not extend the
functions and powers of a Tasmanian Health Organisation. The
charter may not prevent a Tasmanian Health Organisation from
performing a function or exercising a power it is required to
perform or from complying with any Act. This is consistent with
usual practice for Government Business Enterprises.
Clause 41 Compliance with ministerial charters
Requires a Tasmanian Health Organisation to comply with its
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charter unless there is an inconsistency with its service
agreement. This is consistent with usual practice for
Government Business Enterprises. In the case of inconsistency
the service agreement prevails to the extent of the
inconsistency.
Clause 42 Ministerial policy
Requires Tasmanian Health Organisations to comply with
ministerial policies. This clause is to be used to ensure
consistent application of policies on a state wide basis to ensure
Tasmanians have the same access to services and are subject to
consistent policies regardless of where they live. Inconsistent
application of policies was a major failing of previous regional
health boards.
This will be important in implementing consistent rules for
activity based funding and consistent state wide application of
programs such as the Patient Travel Assistance Scheme, the
Community Equipment Scheme etc. This clause is also
necessary to allow for consistent reporting to national health
reform bodies and as a mechanism to ensure compliance with
national or state clinical standards. This is consistent with the
requirements of D5 d. and f. of Schedule D of the National
Health Reform Agreement.
This clause will assist in meeting the requirement of
sections 1 f. i. and 8 a. of the National Health Reform
Agreement that States are the systems managers of public
hospitals.
Tasmanian Health Organisations will be responsible for their
own local operational policies.
Clause 43 Ministerial directions
Allows the responsible Ministers to give direction to a
Tasmanian Health Organisation. It is expected this power will
seldom be used but it provides the responsible Ministers with
the mechanism to be the ultimate source of accountability. As
the responsible Ministers are directly accountable to Parliament
for the overall performance of the health system, this is the
appropriate line of accountability. This provides a mechanism to
give direction quickly to resolve critical issues.
This clause will assist in meeting the requirement of
sections 1 f. i. and 8 a. of the National Health Reform
Agreement that States are the systems managers of public
hospitals.
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This clause is also consistent with usual practice for Government
Business Enterprises.
Clause 44 Minister and Tasmanian Health Organisations to enter
into service agreements
Requires the Minister and a Tasmanian Health Organisation to
sign an annual service agreement by no later than 30 June of the
financial year prior to the financial year to which the service
agreement relates. The clause also allows the Minister to
determine the service agreement if agreement cannot be
reached with the governing council.
This is consistent with the requirements of clause D5 b. and c. of
Schedule D of the National Health Reform Agreement.
Clause 45 Contents of service agreements
Specifies the content of a service agreement in general terms.
The required contents are consistent with the requirements of
clause D8 of Schedule D of the National Health Reform
Agreement.
Clause 46 Corporate plans
Requires a Tasmanian Health Organisation to have a corporate
plan and sets out the approvals process. This will be a long term
strategic plan but updated annually. Meets the requirement for a
strategic plan as required under D14 a. and D15 b. of
Schedule D of the National Health Reform Agreement.
Consistent with usual practice for Government Business
Enterprises.
Clause 47 Amendments to corporate plans
Allows for amendment of a corporate plan and sets out the
approvals process. Consistent with usual practice for
Government Business Enterprises.
Clause 48 Tasmanian Health Organisations to operate in
accordance with corporate plans
Requires a Tasmanian Health Organisation to act in accordance
with its corporate plan. Consistent with usual practice for
Government Business Enterprises.
Clause 49 Ministers to be notified if development may affect
achievement of corporate plan, &c.
Requires the governing council to give notification to the
responsible Ministers of any developments with potential to
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affect the implementation of the corporate plan.
Clause 50 Annual business plans
Requires a Tasmanian Health Organisation to have an annual
business plan. The annual business plan will describe how a
Tasmanian Health Organisation intends to meet its service
agreement requirements and how it will spend its funds. This
meets the requirement for an operational plan as required under
D14 a. and D15 b. of Schedule D of the National Health Reform
Agreement.
Clause 51 Tasmanian Health Organisations to operate in
accordance with annual business plans
Requires a Tasmanian Health Organisation to act in accordance
with its annual business plan.
Clause 52 Progress reports
Requires a Tasmanian Health Organisation to provide progress
reports to the responsible Ministers. This clause will assist in
meeting the requirement of sections 1 f. i. and 8 a. of the
National Health Reform Agreement that States are the systems
managers of public hospitals.
Clause 53 Annual reports
Requires a Tasmanian Health Organisation to produce an annual
report. This is consistent with usual practice for Government
Business Enterprises.
Clause 54 Tabling of annual reports
Sets out the timeline for tabling the annual report before
Parliament. This is consistent with usual practice for
Government Business Enterprises.
Clause 55 Annual report under State Service Act 2000 not required
Exempts the Tasmanian Health Organisation from the annual
report requirements in Section 36 of the State Service Act as the
annual report process is specified in Section 50 of this Bill.
Clause 56 Minister may request reports
Allows the Minister to request reports by specifying by notice in
writing the relevant information required. This can be used to
require regular or ad hoc reports on the operations of a
Tasmanian Health Organisation. This clause will assist in
meeting the requirement of sections 1 f. i. and 8 a. of the
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National Health Reform Agreement that States are the systems
managers of public hospitals. It also meets the requirements of
section D5 f. of Schedule D of the National Health Reform
Agreement.
This clause will also facilitate the provision of data by the State
to national bodies as required under section B93 of Schedule B
of the National Health Reform Agreement.
Clause 57 Governing council to notify responsible Ministers of
developments affecting financial viability, &c.
Requires the governing council to give notification to the
responsible Ministers of any developments affecting financial
viability. This is similar to insolvent trading provisions that are
the usual practice for Government Business Enterprises.
Clause 58 Review and audit
Provides for the Minister to authorise a review or audit of
Tasmanian Health Organisation operations and for a Tasmanian
Health Organisation to provide assistance to the reviewer or
auditor. This is required to help the State meet its management
requirements under clause 8 of the National Health Reform
Agreement and to meet the requirements of D5 g., D12 and
D13 of Schedule D of the National Health Reform Agreement.
Clause 59 Unsatisfactory performance
Defines unsatisfactory performance for the purposes of Part 7 of
the Bill. This clause is required to help the State meet its
management requirements under clause 8 of the National Health
Reform Agreement (especially clause 8 c.) and to meet the
requirements of D5 g. and D12 of Schedule D of the National
Health Reform Agreement.
Clause 60 Minister may require governing council to produce
performance improvement plans
Provides the power for the Minister to request a Tasmanian
Health Organisation to prepare a performance improvement
plan. This clause is required to help the State meet its
management requirements under clause 8 of the National Health
Reform Agreement (especially clause 8 c.) and to meet the
requirements of D5 g. and D12 of Schedule D of the National
Health Reform Agreement.
It is expected that this will be the usual method of dealing with
performance issues and that more interventional options will
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only be used in rare circumstances.
Clause 61 Performance improvement plans
Describes the matters to be covered by a performance
improvement plan.
Clause 62 Governing councils, &c., to comply with performance
improvement plans
Requires the Tasmanian Health Organisation to comply with a
performance improvement plan.
Clause 63 Minister may appoint ministerial representatives to
governing councils
Provides the power for the Minister to appoint representatives
in relation to a particular Tasmanian Health Organisation
governing council and the conditions under which this can occur.
This clause is required to help the State meet its management
requirements under clause 8 of the National Health Reform
Agreement (especially clause 8 c.) and to meet the requirements
of D5 g. and D12 of Schedule D of the National Health Reform
Agreement.
This clause is designed to deal with serious performance issues
of a corporate governance nature where problems arise from
the corporate management and decision making processes of the
governing council.
Clause 64 Terms of appointment of ministerial representatives
Specifies the terms of appointment for ministerial
representatives.
Clause 65 Functions of ministerial representatives
Describes the functions of ministerial representatives.
Clause 66 Obligations of governing councils to ministerial
representatives
Requires the governing council to permit a ministerial
representative to attend meetings and to receive meeting
papers.
Clause 67 Minister may appoint performance improvement teams
Provides the power for the Minister to appoint a performance
improvement team, and the terms and conditions for the
appointment, in relation to a particular Tasmanian Health
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Organisation. This clause is required to help the State meet its
management requirements under clause 8 of the National Health
Reform Agreement (especially clause 8 c.) and to meet the
requirements of D5 g. and D12 of Schedule D of the National
Health Reform Agreement.
This clause is designed to deal with performance issues of a
service delivery nature where problems arise from the
management or delivery of particular service units.
Clause 68 Assistance to be provided to performance improvement
teams
Requires a Tasmanian Health Organisation to render assistance
to a performance improvement team.
Clause 69 Minister may dissolve governing council
Permits the Minister to dissolve a governing council and outlines
the conditions under which this can occur. This clause is
required to help the State meet its management requirements
under clause 8 of the National Health Reform Agreement
(especially clause 8 c.) and to meet the requirements of D5 g.
and D12 of Schedule D of the National Health Reform
Agreement.
This clause is required to deal with performance issues of a
serious nature where the governing council is unable or
unwilling to perform its functions in a satisfactory manner and
no other action is available to remedy the situation.
Clause 70 Administrators
Permits the Minister to appoint an administrator to a Tasmanian
Health Organisation and provides for the functions and powers
of an administrator. This clause is required to help the State
meet its management requirements under clause 8 of the
National Health Reform Agreement (especially clause 8 c.) and
to meet the requirements of D5 g. and D12 of Schedule D of
the National Health Reform Agreement.
This clause is required to deal with corporate governance of a
Tasmanian Health Organisation where a governing council has
been dissolved and a new governing council is yet to be
appointed.
Clause 71 Deputy administrators
Permits an administrator to appoint deputies.
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Clause 72 Terms of appointment of administrators or deputy
administrators
Specifies the terms of appointment of administrators or deputy
administrators and how appointments may be terminated.
Clause 73 Disclosure of interest of administrators and deputy
administrators
Requires administrators and deputy administrators to disclose
material personal interests.
Clause 74 Certain persons disqualified from offices
Disqualifies certain persons from holding office due to criminal
convictions or corporate disqualifications.
This is consistent with usual practice for Government Business
Enterprises.
Clause 75 Indemnity
Provides a general indemnity for specific offices created within
the Bill.
Staff members of the Tasmanian Health Organisation are state
servants and so are covered under State Service Act indemnity
arrangements.
Clause 76 Delegation by Ministers
Provides a power of delegation for individual ministers and the
responsible Ministers collectively. All powers, other than the
power of delegation, may be delegated.
Clause 77 Certain instruments are not statutory rules
Specifies that notices issued by a Minister under this Act or
Treasurer's Instructions are not statutory rules.
Clause 78 Volunteers
Provides for Tasmanian Health Organisation to make use of
volunteer services (i.e. hospital auxiliaries).
Clause 79 Regulations
Provides for regulations to be made under this Act.
Clause 80 Administration of Act
Provides a temporary assignment of the Act to the Minister for
Health and the Department of Health and Human Services until
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a permanent assignment is made under the Acts Administration
Act.
Clause 81 Transitional and savings provisions
Provides a reference to the transitional and savings provisions in
Schedule 6.
Clause 82 Consequential Amendments
Provides a reference to the consequential amendments in
Schedule 7.
Schedule 1 Tasmanian Health Organisations
Provides a list of Tasmanian Health Organisations.
Schedule 2 Operational areas of Tasmanian Health Organisations
Specifies the geographic boundaries of Tasmanian Health
Organisations.
Schedule 3 Members of Governing Councils
Specifies administrative arrangements for members of governing
councils including term of office, remuneration and vacation of
office.
Schedule 4 Meetings of Governing Councils
Specifies procedures for meetings of the governing councils.
Schedule 5 Sub-Committees
Specifies administrative arrangements and meeting procedures
for sub-committees of governing councils.
Schedule 6 Transitional and savings provisions
Provides transitional provisions in relation to the appointment of
an interim chairperson for a Tasmanian Health Organisation, the
transfer of staff to Tasmanian Health Organisations, the transfer
of property to Tasmanian Health Organisations and the
procedures for dealing with legal matters.
Schedule 7 Consequential Amendments
Includes Tasmanian Health Organisations as State Service
Agencies for the purposes of the State Service Act.
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