NATIONAL HEALTH REFORM AMENDMENT (ADMINISTRATOR AND NATIONAL HEALTH FUNDING BODY) BILL 2012

i National Health Reform Amendment (Administrator and National Health Funding Body) Bill

2012 No. , 2012

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Amendments

National Health Reform Act 2011

National Health Reform Amendment (Administrator and National Health Funding Body) Bill

2012 No. , 2012 1

A Bill for an Act to amend the National Health

Reform Act 2011, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the National Health Reform Amendment

(Administrator and National Health Funding Body) Act 2012.

2 Commencement

This Act commences on the day this Act receives the Royal

Assent.

Amendments Schedule 1

National Health Reform Amendment (Administrator and National Health Funding Body) Bill

2012 No. , 2012 3

Schedule 1--Amendments

National Health Reform Act 2011

1 At the end of section 3

Add:

; and (d) the office of Administrator of the National Health Funding

Pool; and

(e) the National Health Funding Body.

2 Section 4

Repeal the section, substitute:

4 Simplified outline

The following is a simplified outline of this Act:

�

This Act sets up:

(a)

the Australian Commission on Safety and Quality

in Health Care; and

(b)

the National Health Performance Authority; and

(c)

the Independent Hospital Pricing Authority; and

(d)

the office of Administrator of the National Health

Funding Pool; and

(e)

the National Health Funding Body.

�

The Australian Commission on Safety and Quality in Health

Care has functions relating to health care safety and quality

matters.

�

The main function of the National Health Performance

Authority is to monitor, and report on, the performance of the

following:

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4 National Health Reform Amendment (Administrator and National Health Funding Body)

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(a)

local hospital networks;

(b)

public

hospitals;

(c)

private

hospitals;

(d)

primary health care organisations;

(e)

other bodies or organisations that provide health

care services.

�

The main functions of the Independent Hospital Pricing

Authority are as follows:

(a)

to determine the national efficient price for health

care services provided by public hospitals where

the services are funded on an activity basis;

(b)

to determine the efficient cost for health care

services provided by public hospitals where the

services are block funded;

(c)

to publish this, and other information, for the

purpose of informing decision makers in relation to

the funding of public hospitals.

�

The main function of the Administrator of the National Health

Funding Pool is to administer the National Health Funding

Pool.

�

The function of the National Health Funding Body is to assist

the Administrator of the National Health Funding Pool.

3 Section 5

Insert:

Administrator means the Administrator of the National Health

Funding Pool appointed under section 232 and under the

corresponding provision of the laws of the States and Territories.

4 Section 5

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2012 No. , 2012 5

Insert:

function, in Part 5.2, includes a power, authority or duty.

5 Section 5

Insert:

Funding Body means the National Health Funding Body.

6 Section 5

Insert:

Funding Body CEO means the Chief Executive Officer of the

Funding Body.

7 Section 5 (definition of local hospital network)

After "local hospital network", insert ", other than in Part 5.2,".

8 Section 5 (after the definition of local hospital network)

Insert:

local hospital network, in Part 5.2, means an organisation that is a

local hospital network (however described) for the purposes of the

National Health Reform Agreement.

9 Section 5

Insert:

National Health Funding Pool means the combined State Pool

Accounts for each State and Territory.

10 Section 5 (definition of National Health Reform

Agreement)

Omit ", as agreed to by the", substitute "between the Commonwealth

and the States that was agreed to by".

11 Section 5

Insert:

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National Health Reform law, of a State or Territory, means a law

of the State or Territory that gives effect to the National Health

Reform Agreement.

12 Section 5

Insert:

official of the Funding Body means:

(a) the Funding Body CEO; or

(b) a member of the staff of the Funding Body; or

Body under section 265; or

(d) a person engaged as a consultant under section 266.

13 Section 5

Insert:

protected Administrator information means information that was

obtained by a person in the person's capacity as the Administrator.

14 Section 5

Insert:

protected Funding Body information means information that:

(a) was obtained by a person in the person's capacity as an

official of the Funding Body; and

(b) relates to the affairs of a person other than an official of the

Funding Body.

15 Section 5

Insert:

responsible Minister for a jurisdiction means the relevant Minister

with portfolio responsibility for the administration of the provision

of this Act in which the expression occurs (or of the corresponding

provision of the laws of the States).

16 Section 5

Insert:

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2012 No. , 2012 7

staff of the Funding Body means the staff described in

section 264.

17 Section 5

Insert:

Standing Council on Health has the meaning given by

section 230.

18 Section 5

Insert:

State, in Parts 5.1 and 5.2, includes the Australian Capital Territory

and the Northern Territory.

19 Section 5

Insert:

State Managed Fund of a State or Territory means a bank account

or fund established or designated by the State or Territory for the

purposes of health funding under the National Health Reform

Agreement that is required to be undertaken in the State or

Territory through a State Managed Fund.

20 Section 5

Insert:

State Pool Account of a State or Territory means the bank

accounts opened under the laws of the States and Territories as

State Pool Accounts for the purposes of the National Health

Reform Agreement.

21 Subsection 54A(3)

Before "an official", insert "a person who is, or has been,".

22 After paragraph 54H(1)(aa)

Insert:

(ab)

the

Administrator;

(ac) the Funding Body;

23 Subsection 113(3)

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Before "an official", insert "a person who is, or has been,".

24 After paragraph 120(1)(aa)

Insert:

(ab)

the

Administrator;

(ac) the Funding Body;

25 Subsection 213(3)

Before "an official", insert "a person who is, or has been,".

26 After paragraph 220(1)(b)

Insert:

(ba)

the

Administrator;

(bb) the Funding Body;

27 Chapter 5

Repeal the Chapter, substitute:

Chapter 5--Administrator of the Funding

Pool

Part 5.1--Introduction

228 Simplified outline

The following is a simplified outline of this Chapter:

�

This Chapter provides for the appointment of the

Administrator of the National Health Funding Pool.

�

The main function of the Administrator of the National Health

Funding Pool is to administer the National Health Funding

Pool.

�

This Chapter also sets up the National Health Funding Body

to assist the Administrator.

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2012 No. , 2012 9

229 Interpreting Part 5.2

Part 5.2 is to be interpreted in accordance with Schedule 7 to the

Health Practitioner Regulation National Law set out in the

Schedule to the Health Practitioner Regulation National Law Act

2009 of Queensland and, for that purpose, Schedule 7 applies as if

references to this Law or a Queensland Act were references to

Part 5.2 or an Act of this jurisdiction, and with all other necessary

modifications.

230 Standing Council on Health

(1)

The

Standing Council on Health is (subject to subsection (2)) the

Ministerial Council by that name or, if there is no such Ministerial

Council, the standing Ministerial Council established or recognised

by COAG whose members include all Ministers in Australia

having portfolio responsibility for health.

(2) The Standing Council on Health, when acting under Part 5.2, is to

be constituted only by a single Minister for the Commonwealth and

a single Minister for each of the States, and any reference in this

Part to a member of that Council is to be construed as a reference

to those Ministerial members only.

(3) If there are 2 or more Ministers for the Commonwealth or for a

State who are members of the Standing Council on Health, the

relevant Minister for the purposes of Part 5.2 is the Minister having

primary portfolio responsibility for health in his or her jurisdiction.

(4) A reference in Part 5.2 to the agreement of, or a request by, a

member of the Standing Council on Health is a reference to an

agreement or request in writing.

Part 5.2--Administrator of the National Health

Funding Pool

Division 1--Establishment and functions

231 The office of Administrator

(1) The office of Administrator of the National Health Funding Pool is

established by this Part.

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(2) It is the intention of Parliament that the same individual holds the

office established under subsection (1) and under the

corresponding provision of the laws of the States.

(3) The Administrator appointed under this Part may exercise and

perform the functions of the Administrator in relation to:

(a) one jurisdiction; or

(b) 2 or more or all jurisdictions collectively.

(4) A reference in a provision of this Part to a function of the

Administrator under this Part includes a reference to a function of

the Administrator under the corresponding provision of the laws of

the States.

232 Appointment of Administrator

(1) The Minister for this jurisdiction who is a member of the Standing

Council on Health is to appoint an individual to the office of the

Administrator of the National Health Funding Pool under this Part.

(2) Before the appointment is made, the Chair of the Standing Council

on Health is to give each member of the Council an opportunity to

nominate an individual for appointment.

(3) An appointment is not to be made unless all the members of the

Standing Council on Health have agreed on the individual who will

be appointed as Administrator, the date that the appointment will

take effect, the period of appointment and the conditions of

appointment.

(4) The appointment is to be made by instrument in writing.

(5) The Administrator is to be appointed (subject to subsection (3)) for

the period, not exceeding 5 years, and on the conditions specified

in his or her instrument of appointment, but is eligible for

re-appointment.

233 Remuneration

(1) The Administrator is to be paid the remuneration that is determined

by the Remuneration Tribunal. If no determination of that

remuneration by the Tribunal is in operation, the Administrator is

to be paid the remuneration that is prescribed by the regulations.

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(2) The Administrator is to be paid the allowances that are prescribed

by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

234 Suspension of Administrator

(1) The Chair of the Standing Council on Health is required to suspend

the Administrator from office if requested to do so by:

(a) at least 3 members of the Council who are Ministers of a

State; or

(b) the member of the Council who is a Minister of the

Commonwealth.

(2) A member of the Standing Council on Health is not to request the

suspension of the Administrator unless the member is satisfied that

the Administrator:

(a) is, because of any physical or mental incapacity or otherwise,

unable to perform his or her functions satisfactorily; or

(b) has failed to comply with his or her obligations or duties as

Administrator; or

penalty of imprisonment; or

(d) has or may become bankrupt.

(3) A suspension is to be effected by an instrument in writing and is to

be notified by the Chair of the Standing Council on Health to all

members of the Council.

(4) A suspension is terminated after a period of suspension of 60 days

unless before the end of that period the Administrator is removed

or resigns from office or a majority of the members of the Standing

Council on Health:

(a) terminate the suspension; or

(b) extend the suspension for a specified further period.

(5) Despite subsection (1), the Chair of the Standing Council on

Health is not to suspend the Administrator from office within the

period of 90 days after an earlier period of suspension was

terminated unless a majority of the members of the Council request

the Chair to do so.

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235 Removal or resignation of Administrator

(1) The Minister for this jurisdiction who is a member of the Standing

Council on Health is required to remove the Administrator from

office if a majority of the members of the Council agree to the

Administrator's removal from office.

(2) The Administrator is to be removed from office by an instrument

in writing that takes effect on the date agreed to by the majority of

the members of the Standing Council on Health.

(3) The Administrator may resign as Administrator by notice in

writing to the Chair of the Standing Council on Health.

(4) The resignation of the Administrator takes effect on the date

notified by the Chair of the Standing Council on Health to all

members of the Council.

236 Acting Administrator

(1) The Chair of the Standing Council on Health may, from time to

time, appoint an individual to act as the Administrator during any

period when the office is vacant or the holder of the office is

suspended or absent from duty.

(2) Any such appointment may only be made from a panel of persons,

and in accordance with the procedure, agreed to by all the members

of the Standing Council on Health.

Note:

The applied provisions of Schedule 7 to the Health Practitioner

Regulation National Law (clause 27) contain additional provisions

relating to acting appointments that have effect subject to this section.

237 Provision of staff and facilities for Administrator

(1) Staff and facilities to assist the Administrator in exercising or

performing his or her functions under this Part are to be provided

by the National Health Funding Body.

Note: See

section

252.

(2) The Administrator is not entitled to delegate a function conferred

on the Administrator under this Part to that body, to any such

member of staff or to any other person or body.

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2012 No. , 2012 13

238 Functions of Administrator

(1) The Administrator is:

(a) to calculate and advise the Treasurer of the Commonwealth

of the amounts required to be paid by the Commonwealth

into each State Pool Account of the National Health Funding

Pool under the National Health Reform Agreement

(including advice on any reconciliation of those amounts

based on subsequent actual service delivery); and

(b) to monitor payments into each State Pool Account for the

purposes of Division 2; and

accordance with the directions of the State concerned; and

(d) to report publicly on the payments made into and from each

State Pool Account and other matters on which the

Administrator is required to report under this Part; and

(e) to exercise or perform any other functions conferred on the

Administrator under this Part.

(2) The Administrator and the officials of the funding body are not

subject to the control or direction of any Minister of the

Commonwealth in relation to the exercise or performance of the

Administrator's functions under this Act.

(3) However, the Administrator is required to comply with any

directions given by COAG in relation to the manner in which the

Administrator exercises or performs his or her functions under this

Part.

(4) Directions given by COAG under subsection (3):

(a) are to be given in accordance with a written resolution of

COAG passed in accordance with the procedures determined

by COAG; and

(b) are to be notified in writing to the Administrator; and

(5) To avoid doubt, this Part is not intended to give the

Commonwealth ownership or control of money in a State Pool

Account.

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Division 2--Financial management and reporting

239 Financial management obligations of Administrator

The Administrator must:

(a) develop and apply appropriate financial management policies

and procedures with respect to the State Pool Accounts

(including policies and procedures to ensure payments from

those Accounts are made in accordance with the directions of

the responsible Ministers); and

(b) keep proper records in relation to the administration of the

State Pool Accounts, including records of all payments made

into and from those Accounts and the basis on which the

payments were made; and

relation to the State Pool Accounts and arrange for the audit

of those financial statements in accordance with this Part.

240 Monthly reports by Administrator

(1) The Administrator must provide monthly reports to the

Commonwealth and each State containing the following

information for the relevant month:

(a) the amounts paid into each State Pool Account and State

Managed Fund by the relevant State and the basis on which

the payments were made;

(b) the amounts paid into each State Pool Account by the

Commonwealth and the basis on which the payments were

made;

hospital networks, a State Managed Fund or other

organisations or funds and the basis on which the payments

were made;

(d) the amounts paid from each State Managed Fund to local

hospital networks or other organisations or funds and the

basis on which the payments were made;

(e) the number of public hospital services funded for each local

hospital network (including as a running financial year total)

in accordance with the system of activity based funding;

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(f) the number of other public hospital services and functions

funded from each State Pool Account or State Managed Fund

(including a running financial year total).

(2) A monthly report required to be provided to a jurisdiction under

this section is to be provided to the responsible Minister for that

jurisdiction or to a body or officer notified to the Administrator by

that Minister.

(3) The Administrator is to make reports provided under this section

publicly available.

241 Annual report by Administrator

(1) The Administrator must, within 4 months after the end of each

financial year, provide to the responsible Ministers an annual

report on the exercise or performance of his or her functions during

the financial year.

(2) The annual report must include the following information for the

relevant financial year:

(a) the amounts paid into each State Pool Account and State

Managed Fund by the relevant State and the basis on which

the payments were made;

(b) the amounts paid into each State Pool Account by the

Commonwealth and the basis on which the payments were

made;

hospital networks, a State Managed Fund or other

organisations or funds and the basis on which the payments

were made;

(d) the amounts paid from each State Managed Fund to local

hospital networks or other organisations or funds and the

basis on which the payments were made;

(e) the number of public hospital services funded for each local

hospital network in accordance with the system of activity

based funding;

(f) the number of other public hospital services and functions

funded from each State Pool Account or State Managed

Fund.

(3) The annual report is to be accompanied by:

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(a) an audited financial statement for each State Pool Account;

and

(b) a financial statement that combines the audited financial

statements for each State Pool Account.

(4) A responsible Minister must, as soon as practicable after receiving

an annual report under this section, cause a copy of the report to be

tabled in the Parliament of the responsible Minister's jurisdiction.

242 Administrator to prepare financial statements for State Pool

Accounts

The Administrator must, after each financial year, prepare:

(a) a financial statement for each State Pool Account that details

financial transactions during that financial year; and

(b) a combined financial statement that consists of the financial

statements for each State Pool Account for the financial year.

243 Audit of financial statements

A financial statement under this Division for the State Pool

Account of a State is to be audited by the Auditor-General of that

State in accordance with the relevant legislation of that State

relating to financial audit by the Auditor-General.

244 Performance audits

(1) For the purposes of this section, a performance audit is an audit by

the Auditor-General of a jurisdiction of the exercise or

performance of the functions of the Administrator in relation to

that jurisdiction to determine whether the Administrator is acting

effectively, economically, efficiently and in compliance with all

relevant laws.

(2) Before the Auditor-General of this jurisdiction conducts a

performance audit, the Auditor-General must notify the

Auditors-General of all other jurisdictions of his or her intention to

conduct the proposed audit.

(3) Auditors-General who are conducting performance audits at the

same time are to make arrangements to co-ordinate the conduct of

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those audits in relation to any requirements imposed on the

Administrator.

(4) A performance audit is to be conducted by the Auditor-General of

this jurisdiction in accordance with the Auditor-General Act 1997.

245 Provision of information generally

(1) The Administrator is required to provide to the responsible

Minister for a jurisdiction any information requested by that

responsible Minister that relates to that jurisdiction.

(2) The information is to be provided by the time requested by that

responsible Minister.

(3) The Administrator is required to provide a copy of advice to the

Treasurer of the Commonwealth referred to in paragraph 238(1)(a)

to the responsible Ministers of all jurisdictions.

(4) The Administrator may at any time provide any information that

relates to a jurisdiction to the responsible Minister for that

jurisdiction.

(5) Any information relating to a jurisdiction that is provided by the

Administrator to another jurisdiction may only be publicly released

by that other jurisdiction in accordance with arrangements

approved by the responsible Minister for the jurisdiction to which

the information relates.

246 Format and content of reports and statements

Monthly or annual reports and financial or information statements

under this Division are to be prepared in accordance with any

directions that are given by COAG under subsection 238(3).

Division 3--Provisions relating to the functions of the

Administrator

247 Constitutional limits

The Administrator may perform his or her functions under this Act

only:

(a) for purposes related to:

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Body) Bill 2012 No. , 2012

(i) the provision of pharmaceutical, sickness or hospital

benefits; or

(ii) the provision of medical or dental services; or

(b) for purposes related to the granting of financial assistance to

a State on such terms and conditions as the Parliament thinks

fit; or

Commonwealth; or

(d) for purposes related to statistics; or

(e) in, or for purposes related to, a Territory; or

(f) in or with respect to a Commonwealth place (within the

meaning of the Commonwealth Places (Application of Laws)

Act 1970); or

(g) for purposes related to trade and commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or

between 2 Territories; or

(h) for purposes related to a corporation to which paragraph

51(xx) of the Constitution applies; or

(i) by way of the use of a postal, telegraphic, telephonic or other

like service within the meaning of paragraph 51(v) of the

Constitution; or

(j) by way of the provision of a service to:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth;

for a purpose of the Commonwealth; or

(k) for purposes related to matters that are peculiarly adapted to

the government of a nation and that cannot otherwise be

carried on for the benefit of the nation; or

(l) for purposes related to matters incidental to the execution of

any of the legislative powers of the Parliament or the

executive power of the Commonwealth.

248 State laws may confer functions and powers

(1) A National Health Reform law of a State may confer powers or

functions, or impose duties, on:

(a) the Administrator; or

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(b) an officer of the Commonwealth in relation to the powers,

functions or duties of the Administrator (including powers or

functions conferred, or duties imposed, under a law of a

State).

Note:

Section 250 sets out when such a law imposes a duty on the

Administrator.

(2) Subsection (1) does not authorise the conferral of a power or

function, or the imposition of a duty, by a law of a State to the

extent to which:

(a) the conferral or imposition, or the authorisation, would

contravene any constitutional doctrines restricting the duties

that may be imposed on the Administrator or officer; or

(b) the authorisation would otherwise exceed the legislative

power of the Commonwealth.

(3) This Act is not intended to exclude or limit:

(a) the operation of a law of a State that confers any functions or

powers, or imposes any duties, on the Administrator or

officer to the extent to which that law is capable of operating

concurrently with this Act; or

(b) the conferral of a function or power, or the imposition of a

duty, on the Administrator or officer in his or her capacity as

a person appointed under a law of a State.

249 How duty is imposed by State laws

Application

(1) This section applies if a National Health Reform law of a State

purports to impose a duty on the Administrator or an officer of the

Commonwealth.

Note:

Section 250 sets out when such a law imposes a duty on the

Administrator.

State legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Act (or any other law

of the Commonwealth) to the extent to which:

(a) imposing the duty is within the legislative powers of the State

concerned; and

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(b) imposing the duty by the law of the State is consistent with

the constitutional doctrines restricting the duties that may be

imposed on the Administrator or officer.

Note:

If this subsection applies, the duty will be taken to be imposed by

force of the law of the State (the Commonwealth having consented

under section 248 to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but

State legislative powers are not

(3) If, to ensure the validity of the purported imposition of the duty, it

is necessary that the duty be imposed by a law of the

Commonwealth (rather than by the law of the State), the duty is

taken to be imposed by this Act to the extent necessary to ensure

that validity.

(4) If, because of subsection (3), this Act is taken to impose the duty, it

is the intention of the Parliament to rely on all powers available to

it under the Constitution to support the imposition of the duty by

this Act.

(5) The duty is taken to be imposed by this Act in accordance with

subsection (3) only to the extent to which imposing the duty:

(a) is within the legislative powers of the Commonwealth; and

(b) is consistent with the constitutional doctrines restricting the

duties that may be imposed on the Administrator.

(6) Subsections (1) to (5) do not limit section 248.

250 When State laws impose a duty on Administrator

For the purposes of sections 248 and 249, a law of a State imposes

a duty on the Administrator or an officer of the Commonwealth if:

(a) the law confers a power or function on the Administrator or

officer; and

(b) the circumstances in which the power or function is conferred

give rise to an obligation on the Administrator or officer to

exercise the power or to perform the function.

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2012 No. , 2012 21

Part 5.3--National Health Funding Body

Division 1--Establishment

251 National Health Funding Body

The National Health Funding Body is established by this section.

Note: In

this

Act,

Funding Body means the National Health Funding

Body--see section 5.

252 Function

The function of the Funding Body is to assist the Administrator in

the performance of the Administrator's functions.

Division 2--Chief Executive Officer of the Funding Body

253 Establishment

There is to be a Chief Executive Officer of the Funding Body.

Note: In

this

Act,

Funding Body CEO means the Chief Executive Officer of

the Funding Body--see section 5.

254 Role

The Funding Body CEO is responsible for the day-to-day

administration of the Funding Body.

255 Appointment

(1) The Funding Body CEO is to be appointed by the Minister.

(2) Before making an appointment under subsection (1), the Minister

must consult with the Administrator.

(3) The appointment is to be made by written instrument.

(4) The Funding Body CEO holds office on a full-time basis.

(5) The Funding Body CEO holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

Note:

For reappointment, see the Acts Interpretation Act 1901.

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(6) The Funding Body CEO must not be the Administrator.

256 Acting appointments

(1) The Minister may appoint a person to act as the Funding Body

CEO:

(a) during a vacancy in the office of the Funding Body CEO

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when the Funding

Body CEO:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

(2) Before making an appointment under subsection (1), the Minister

must consult with the Administrator.

(3) An appointment under subsection (1) is to be made by written

instrument.

(4) Anything done by or in relation to a person purporting to act under

an appointment under subsection (1) is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(d) the occasion to act had not arisen or had ceased.

Note: See

the

Acts Interpretation Act 1901.

257 Outside employment

(1) The Funding Body CEO must not engage in paid employment

outside the duties of his or her office without the approval of the

Minister.

(2) Before giving approval for the purposes of subsection (1), the

Minister must consult with the Administrator.

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258 Remuneration and allowances

(1) The Funding Body CEO is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the Funding

Body CEO is to be paid the remuneration that is prescribed by the

regulations.

(2) The Funding Body CEO is to be paid the allowances that are

prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

259 Leave of absence

(1) The Funding Body CEO has the recreation leave entitlements that

are determined by the Remuneration Tribunal.

(2) The Minister may grant the Funding Body CEO leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines in writing.

(3) Before making a determination under subsection (2), the Minister

must consult with the Administrator.

260 Disclosure of interests

The Funding Body CEO must give written notice to the Minister

and the Administrator of all interests, pecuniary or otherwise, that

the Funding Body CEO has or acquires and that conflict or could

conflict with the proper performance of the Funding Body CEO's

duties.

261 Resignation

(1) The Funding Body CEO may resign his or her appointment by

giving the Minister a written resignation.

(2) The resignation takes effect on the day it is received by the

Minister or, if a later day is specified in the resignation, on that

later day.

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24 National Health Reform Amendment (Administrator and National Health Funding

Body) Bill 2012 No. , 2012

262 Termination of appointment

(1) The Minister may terminate the appointment of the Funding Body

CEO for misbehaviour or physical or mental incapacity.

(2) The Minister may terminate the appointment of the Funding Body

CEO if the Minister is satisfied that the Funding Body CEO's

performance has been unsatisfactory.

(3) Before the Minister terminates the appointment of the Funding

Body CEO under subsection (1) or (2), the Minister must consult

the Administrator.

(4) The Minister must terminate the appointment of the Funding Body

CEO if:

(a) the Funding Body CEO:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the Funding Body CEO is absent, except on leave of absence,

for 14 consecutive days or for 28 days in any 12 months; or

comply with section 260; or

(d) the Funding Body CEO engages, except with the approval of

the Minister, in paid employment outside the duties of his or

her office (see section 257).

263 Other terms and conditions

(1) The Funding Body CEO holds office on the terms and conditions

(if any) in relation to matters not covered by this Act that are

determined, in writing, by the Minister.

(2) Before making a determination under subsection (1), the Minister

must consult with the Administrator.

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National Health Reform Amendment (Administrator and National Health Funding Body) Bill

2012 No. , 2012 25

Division 3--Staff, consultants etc.

264 Staff

(1) The staff of the Funding Body are to be persons engaged under the

Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the Funding Body CEO and the staff of the Funding Body

together constitute a Statutory Agency; and

(b) the Funding Body CEO is the Head of that Statutory Agency.

265 Persons assisting the Funding Body

The Funding Body may also be assisted:

(a) by officers and employees of Agencies (within the meaning

of the Public Service Act 1999); or

(b) by officers and employees of authorities of the

Commonwealth; or

(d) by officers and employees of authorities of a State or

Territory;

whose services are made available to the Funding Body in

connection with the performance of the functions of the

Administrator.

266 Consultants

(1) The Funding Body may engage persons having suitable

qualifications and experience as consultants to the Funding Body.

(2) The consultants are to be engaged on the terms and conditions that

the Funding Body CEO determines in writing.

267 Annual report

(1) The Funding Body CEO must, as soon as practicable after the end

of each financial year, prepare and give to the Minister, for

presentation to the Parliament, a report on the operations of the

Funding Body during that year.

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26 National Health Reform Amendment (Administrator and National Health Funding

Body) Bill 2012 No. , 2012

(2) The Funding Body CEO must also give a copy of the report to the

responsible Ministers for the States and Territories.

Note:

See also section 34C of the Acts Interpretation Act 1901, which

contains extra rules about annual reports.

Part 5.4--Secrecy

Division 1--The Administrator

268 Secrecy

(1) A person commits an offence if:

(a) the person is, or has been, the Administrator; and

(b) the person has obtained protected Administrator information

in the person's capacity as the Administrator; and

(c)

the

person:

(i) discloses the information to another person; or

(ii) uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exceptions

(2) Each of the following is an exception to the prohibition in

subsection (1):

(a) the disclosure or use is authorised by this Act or by a

National Health Reform law of a State or Territory;

(b) the disclosure or use is in compliance with a law of the

Commonwealth or a law of a State or Territory;

National Health Reform law of a State or Territory;

(d) the disclosure or use is for the purposes of the performance of

the functions of the Administrator under this Act or a

National Health Reform law of a State or Territory;

(e) the disclosure or use is in the course of the Administrator's

employment or service as the Administrator;

(f) the disclosure or use is in accordance with a direction given

by COAG under subsection 238(3);

Amendments Schedule 1

National Health Reform Amendment (Administrator and National Health Funding Body) Bill

2012 No. , 2012 27

(g) the disclosure is to the Treasurer of the Commonwealth or a

State or Territory, or to the responsible Minister for the

Commonwealth or a State or Territory;

(h) the disclosure is of information that relates to the affairs of a

person with consent of the person;

(i) the disclosure is of information that has already been lawfully

made available to the public.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) Except where it is necessary to do so for the purposes of giving

effect to this Act, the person is not to be required:

(a) to produce to a court or tribunal a document containing

protected Administrator information; or

(b) to disclose protected Administrator information to a court or

tribunal.

Division 2--Funding Body officials

269 Secrecy

(1) A person commits an offence if:

(a) the person is, or has been, an official of the Funding Body;

and

(b) the person has obtained protected Funding Body information

in the person's capacity as an official of the Funding Body;

and

(c)

the

person:

(i) discloses the information to another person; or

(ii) uses the information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Exceptions

(2) Each of the following is an exception to the prohibition in

subsection (1):

(a) the disclosure or use is authorised by this Division;

(b) the disclosure or use is in compliance with a requirement

under:

Schedule 1 Amendments

28 National Health Reform Amendment (Administrator and National Health Funding

Body) Bill 2012 No. , 2012

(i) a law of the Commonwealth; or

(ii) a prescribed law of a State or a Territory.

Note:

A defendant bears an evidential burden in relation to a matter in

subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) Except where it is necessary to do so for the purposes of giving

effect to this Act, a person who is, or has been, an official of the

Funding Body is not to be required:

(a) to produce to a court or tribunal a document containing

protected Funding Body information; or

(b) to disclose protected Funding Body information to a court or

tribunal.

270 Disclosure or use for the purposes of this Act

An official of the Funding Body may disclose or use protected

Funding Body information if:

(a) the disclosure or use is for the purposes of this Act; or

(b) the disclosure or use is for the purposes of the performance of

the functions of the Funding Body under this Act; or

employment or service as an official of the Funding Body.

271 Disclosure to the Minister

An official of the Funding Body may disclose protected Funding

Body information to:

(a) the Minister; or

(b)

the

Treasurer.

272 Disclosure to a State/Territory Health Minister

An official of the Funding Body may disclose protected Funding

Body information to a State/Territory Health Minister.

273 Disclosure to the Secretary etc.

An official of the Funding Body may disclose protected Funding

Body information to:

(a) the Secretary; or

Amendments Schedule 1

National Health Reform Amendment (Administrator and National Health Funding Body) Bill

2012 No. , 2012 29

(b) the head (however described) of the Health Department of a

State or Territory.

274 Disclosure to a Royal Commission

(1) An official of the Funding Body may disclose protected Funding

Body information to a Royal Commission.

(2) The Funding Body CEO may, by writing, impose conditions to be

complied with in relation to protected Funding Body information

disclosed under subsection (1).

(3) An instrument under subsection (2) is not a legislative instrument.

275 Disclosure to certain agencies, bodies or persons

Scope

(1) This section applies if the Administrator or the Funding Body CEO

is satisfied that particular protected Funding Body information will

enable or assist any of the following agencies, bodies or persons:

(a)

the

Commission;

(b)

the

Performance

Authority;

(d)

the

Administrator;

(e) the Standing Council on Health;

(f) the Australian Health Ministers' Advisory Council;

(g) the Australian Institute of Health and Welfare;

(h) the Australian Statistician;

(i) a State/Territory government body that has functions relating

to health care;

(j) an agency, body or person specified in a legislative

instrument made by the Minister with the agreement of

COAG;

to perform or exercise any of the functions or powers of the

agency, body or person.

(2) COAG is to give its agreement for the purposes of paragraph (1)(j)

by a written resolution of COAG passed in accordance with the

procedures determined by COAG.

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30 National Health Reform Amendment (Administrator and National Health Funding

Body) Bill 2012 No. , 2012

Disclosure

(3) If an official of the Funding Body is authorised by the

Administrator or the Funding Body CEO, in writing, for the

purposes of this section, the official may disclose that protected

Funding Body information to the agency, body or person

concerned.

(4) If protected Funding Body information is disclosed under

subsection (3) to an agency, body or person, the agency, body or

person must not disclose or use the information for a purpose other

than the purpose for which the information was given to the

agency, body or person.

276 Disclosure to researchers

Scope

(1) This section applies if the Administrator or the Funding Body CEO

is satisfied that particular protected Funding Body information will

assist an agency, body or person to conduct research.

Disclosure

(2) If an official of the Funding Body is authorised by the

Administrator or the Funding Body CEO, in writing, for the

purposes of this section, the official may disclose that protected

Funding Body information to the agency, body or person

concerned.

(3) An official of the Funding Body must not disclose information

under subsection (2) if the information is likely to enable the

identification of a particular patient.

277 Disclosure with consent

An official of the Funding Body may disclose protected Funding

Body information that relates to the affairs of a person if:

(a) the person has consented to the disclosure; and

(b) the disclosure is in accordance with that consent.

Amendments Schedule 1

National Health Reform Amendment (Administrator and National Health Funding Body) Bill

2012 No. , 2012 31

278 Disclosure of publicly available information

An official of the Funding Body may disclose protected Funding

Body information if it is already publicly available.

Chapter 6--Miscellaneous

279 Protection of patient confidentiality

Scope

(1) This section applies to each of the following persons or bodies:

(a)

the

Commission;

(b)

the

Performance

Authority;

(d)

the

Administrator;

(e) the Funding Body.

Protection of confidentiality

(2) In the performance of the person or body's functions, the person or

body must not publish or disseminate information that is likely to

enable the identification of a particular patient.

(3) Subsection (2) does not apply if the publication or dissemination of

the information takes place with the consent of:

(a) if the patient is aged at least 18 years--the patient; or

(b) if the patient has died but is survived by a person (the

surviving partner) who was:

(i) his or her partner immediately before he or she died;

and

(ii) living with him or her immediately before he or she

died;

the surviving partner; or

is authorised to give consent to the publication or

dissemination of the information.

Schedule 1 Amendments

32 National Health Reform Amendment (Administrator and National Health Funding

Body) Bill 2012 No. , 2012

(4) For the purposes of paragraph (3)(b), a person is taken to have

been living with his or her partner at a particular time if they were

not living together at that time only because of:

(a) a temporary absence from each other; or

(b) illness or infirmity of either or both of them.

280 Concurrent operation of State and Territory laws etc.

This Act is not intended to exclude or limit the operation of a law

of a State or Territory that is capable of operating concurrently

with this Act.

281 Commonwealth Authorities and Companies Act 1997 does not

apply

The

Commonwealth Authorities and Companies Act 1997 does not

apply in relation to:

(a) the Performance Authority; or

(b) the Pricing Authority.

282 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) The regulations may modify the operation of the following in

relation to things done by, or in relation to, the Administrator, the

Funding Body CEO or the Funding Body:

(a)

the

Archives Act 1983;

(b)

the

Australian Information Commissioner Act 2010;

(c)

the

Freedom of Information Act 1982;

(d)

the

Ombudsman Act 1976;

(e)

the

Privacy Act 1988.

(3) Regulations under subsection (2) may be made only with the

agreement of all of the members of the Standing Council on Health

(as constituted for the purposes of Part 5.2).

28 Transitional and validation provisions

Amendments Schedule 1

National Health Reform Amendment (Administrator and National Health Funding Body) Bill

2012 No. , 2012 33

(1)

If, on the commencement of Part 5.2 of the National Health Reform Act

2011, corresponding provisions to that Part have not been enacted by

another jurisdiction, the responsible Minister for that jurisdiction for the

purposes of that Part is the Minister of that jurisdiction with portfolio

responsibility for health.

(2)

Any thing done by a Minister of the Commonwealth or of a State before

the commencement of Part 5.2 of the National Health Reform Act 2011

that would have been validly done if that Part, and the corresponding

provisions of other jurisdictions, had been in force at the time is taken to

have been validly done.

Commonwealth of Australia Bills

NATIONAL HEALTH REFORM AMENDMENT (ADMINISTRATOR AND NATIONAL HEALTH FUNDING BODY) BILL 2012