Health Services (Governance and Accountability) Act 2004

Victorian Legislation Parliamentary Documents i Health Services (Governance and Accountability) Act 2004 Act No. 52/2004 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Principal Act 2 4. Definitions 2 5. Amendment of Schedules 4 6. Objectives 5 7. Principal function of the Secretary 5 11A. Principal function of the Secretary 5 8. Criteria for public funding of agencies 6 9. Repeal of section 18F 6 10. Rules of registered funded agency 6 11. Chief executive officer 7 12. Immunity 7 38A. Immunity 7 13. Repeal of section 39 7 14. New sections 40A to 40E inserted 8 40A. Notice of proposed direction 8 40B. Minister may issue directions 8 40C. Appointment of delegate to board 9 40D. Functions of delegate 11 40E. Obligations of board to delegate 11 15. Repeal of Division 4A of Part 3 11 16. New section 44A inserted 12 44A. Statement of priorities for denominational hospitals 12 17. Repeal of Division 7 of Part 3 12 18. Powers of Minister 12 19. New Division 8A of Part 3 inserted 13 Division 8A—Audits of Public Hospitals, Public Health Services, Multi Purpose Services and Denominational Hospitals 13 63. Definition 13 63A. Secretary may commission audits 13 63B. Appointment or engagement of auditors 14 63C. Powers of auditors 15 63D. Confidentiality requirements 16 -- 1 of 69 -- Victorian Legislation Parliamentary Documents Section Page ii 20. Heading to Division 9B of Part 3 17 21. Incorporation 17 22. Public health services do not represent the Crown 17 23. Objects of public health services 17 24. Board of directors 18 25. Directors 21 26. Terms and conditions 21 27. Removal and resignation 21 28. Disclosure of interest 21 29. Procedure of board 21 30. New sections 65XA and 65XB inserted 22 65XA. Chief executive officer 22 65XB. Functions of the chief executive officer 22 31. Immunity 24 32. Validity of acts or decisions 24 33. New sections 65ZAA, 65ZAB and 65ZAC inserted 24 65ZAA. Appointment of delegate to board 24 65ZAB. Functions of delegate 26 65ZAC. Obligations of board to delegate 26 34. Advisory committees 27 35. Community advisory committee 27 36. Primary care and population health advisory committee 27 37. Procedure of advisory committees 28 38. Strategic plans 28 39. New sections 65ZFA and 65ZFB inserted 28 65ZFA. When statement of priorities to be prepared 28 65ZFB. Content of statement of priorities 29 40. Annual meetings 30 41. New sections 66 and 66A inserted 30 66. Notice of proposed direction 30 66A. Minister may issue directions 31 42. Public hospital patient services agreements 32 43. New section 115JA inserted 32 115JA. Immunity 32 44. Repeal of section 115K 33 45. Membership of HPV and terms of office 33 46. Terms and conditions 33 47. Removal and resignation 33 48. Confidentiality 33 49. New section 157H inserted 34 157H. Supreme Court—limitation of jurisdiction 34 50. Spent transitional provisions repealed 34 -- 2 of 69 -- Victorian Legislation Parliamentary Documents Section Page iii 51. New Parts 12 and 13 34 PART 12—TRANSITIONAL PROVISIONS RELATING TO PUBLIC HEALTH SERVICES 34 232. Definitions 34 233. Extra-territorial operation 37 234. Public health service same body as former metropolitan health service 37 235. Certain public health services same body as certain former public hospitals 38 236. First directors of boards of certain public health service 38 237. Old instruments referring to metropolitan health service 39 238. Old instruments referring to public hospitals 40 239. Order establishing a public health service 41 240. Establishment of first board of certain public health services 42 241. First by-laws 42 242. Registrar of Titles 43 243. Operation of provisions not subject to review 43 PART 13—RE-ORGANISATION OF PUBLIC HOSPITALS AND PUBLIC HEALTH SERVICES 43 244. Definitions 43 245. Extra-territorial operation 45 246. Part to prevail 46 247. Minister to consider report 46 248. Order in Council 47 249. Amendment of Schedules if new agency established 48 250. Establishment of first board 48 251. First by-laws of agency 49 252. Appointment of first chief executive officer 49 253. Cancellation of agency's incorporation 49 254. Vesting of property, rights and liabilities 51 255. Substitution of party to agreement 51 256. Proceedings 52 257. Interests in land 52 258. Old instruments 53 259. Taxes 53 260. Evidence 53 261. Saving of quality assurance bodies 54 262. Staff transfer date 55 263. List of staff 55 264. Transfer of staff 56 265. Future terms and conditions of transferred employees 57 266. Trusts in respect of transferring agencies 58 267. Application of property cy-pres not affected 59 -- 3 of 69 -- Victorian Legislation Parliamentary Documents Section Page iv 268. Application to trusts whenever created 59 269. Validity of things done under this Part 59 270. Operation of provisions not subject to review 60 271. Appointment of administrator 61 272. Functions of administrator 62 273. Direction of Secretary 63 52. Schedule 1 63 53. Schedule 5 63 ═══════════════ ENDNOTES 65 -- 4 of 69 -- Victorian Legislation Parliamentary Documents 1 Health Services (Governance and Accountability) Act 2004† [Assented to 22 June 2004] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to amend the Health Services Act 1988— (a) to establish public health services; and (b) to enable the Minister to issue directions to public hospitals and public health services; and Victoria No. 52 of 2004 -- 5 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 2 (c) to enable the Secretary to commission audits of certain public bodies and denominational hospitals; and (d) to enable the Minister to appoint delegates to the boards of public health services; and (e) to require public health services to prepare statements of priorities; and (f) to enable public hospitals and public health services to be re-organised. 2. Commencement (1) This Act, except sections 52 and 53(2), comes into operation on the day after the day on which it receives the Royal Assent. (2) Sections 52 and 53(2) come into operation on 1 July 2004. 3. Principal Act In this Act, the Health Services Act 1988 is called the Principal Act. 4. Definitions In section 3(1) of the Principal Act— (a) the definition of "metropolitan health service" is repealed; s. 2 See: Act No. 49/1988. Reprint No. 8 as at 19 February 2003 and amending Act Nos 67/2003, 98/2003 and 114/2003. LawToday: www.dms. dpc.vic. gov.au -- 6 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 3 (b) in the definition of "former agency" after paragraph (b) insert— "(ba) a metropolitan health service; or (bb) a public hospital that on or after 1 July 2004 becomes a public health service; or (bc) a public hospital that on the effective date of an Order under section 239 becomes a public health service; or (bd) a transferring agency by virtue of an Order under section 248; or". (c) insert the following definition— ' "public health service" means— (a) a public health service listed in Schedule 5; or (b) premises occupied by a public health service listed in Schedule 5— as the case requires;'; (d) for the definition of "public hospital" substitute— ' "public hospital" means— (a) a hospital listed in Schedule 1; or (b) except in Division 4 of Part 3 and Parts 12 and 13, a public health service; or (c) premises occupied by a hospital listed in Schedule 1 or, except in Division 4 of Part 3 and Parts 12 and 13, by a public health service— as the case requires;'; s. 4 -- 7 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 4 (e) in the definition of "registered funded agency", after paragraph (c) insert— "(ca) a public health service; or"; (f) in the definition of "trust", after paragraph (a) insert— "(aa) a transferring agency by virtue of an Order under section 248 or a former agency of such a body; or (ab) a metropolitan health service or a former agency of such a body; or (ac) a public hospital or a former agency of such a body; or". 5. Amendment of Schedules (1) In section 8(4) of the Principal Act, for "metropolitan health service" (wherever occurring) substitute "public health service". (2) After section 8(4) of the Principal Act insert— "(5) If the name of a public hospital listed in Schedule 1 or the name of a public health service listed in Schedule 5 changes— (a) the reference in the relevant Schedule to the old name of the public hospital or public health service is taken to be a reference to the new name of the public hospital or public health service; and (b) the Governor in Council, by Order published in the Government Gazette, may amend the relevant Schedule by amending the name of the public hospital or public health service.". s. 5 -- 8 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 5 6. Objectives After section 9(b) of the Principal Act insert— "(ba) public hospitals are governed and managed effectively, efficiently and economically; and". 7. Principal function of the Secretary After section 11 of the Principal Act insert— "11A. Principal function of the Secretary To ensure that the objectives of this Act are met, the Secretary may— (a) advise the Minister on the operation of this Act; (b) develop policies and plans with respect to health services provided by health care agencies; (c) fund or purchase health services and monitor, evaluate and review publicly funded or purchased health services; (d) encourage safety and improvement in the quality of health services provided by health care agencies and health service establishments; (e) in consultation with health care agencies, develop criteria or measures that enable comparisons to be made between the performance of health care agencies providing similar services; (f) collect and analyse data to enable the Secretary to perform the Secretary's functions under this or any other Act; (g) do anything else that the Secretary considers appropriate.". s. 6 -- 9 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 6 8. Criteria for public funding of agencies After section 18(eb) of the Principal Act insert— "(ec) in the case of a public health service, whether it has met the objectives, priorities and key performance outcomes specified in its statement of priorities under section 65ZFA in relation to the current financial year or in its statements of priorities under section 65ZFA in relation to the last 2 financial years; (ed) in the case of a denominational hospital to which a statement of priorities under section 44A relates, whether it has met the objectives, priorities and key performance outcomes specified in its statement of priorities in relation to the current financial year or in its statements of priorities in relation to the last 2 financial years;". 9. Repeal of section 18F Section 18F of the Principal Act is repealed. 10. Rules of registered funded agency (1) After section 24(2)(f) of the Principal Act insert— "(fa) a matter consequent on the making of an Order under section 248; or". (2) In section 24(2A) of the Principal Act, for "metropolitan health service" (wherever occurring) substitute "public health service". s. 8 -- 10 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 7 11. Chief executive officer For section 25(2) of the Principal Act substitute— "(2) A registered funded agency must not appoint a person as chief executive officer unless— (a) the appointment of that person is approved by the Secretary; and (b) in the case of a public hospital, the remuneration of the chief executive officer and the terms and conditions of his or her appointment are approved by the Secretary.". 12. Immunity After section 38 of the Principal Act insert— "38A. Immunity (1) A member of the board of a public hospital is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a power or the discharge of a duty under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act. (2) Any liability resulting from an act or omission that would but for sub-section (1) attach to a member of the board of a public hospital attaches instead to the public hospital.". 13. Repeal of section 39 Section 39 of the Principal Act is repealed. s. 11 -- 11 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 8 14. New sections 40A to 40E inserted After section 40 of the Principal Act insert— "40A. Notice of proposed direction (1) If the Minister proposes to issue the board of a public hospital with a direction under section 40B, the Minister must give a copy of the proposed direction to the board at least 7 days before issuing the direction. (2) The board of a public hospital may give the Minister comments in relation to the proposed direction before the day on which the direction is to be issued. (3) The Minister must take into account the comments of the board of a public hospital in determining— (a) whether to issue the direction; and (b) if the direction is to be issued, the content of the direction. 40B. Minister may issue directions (1) Subject to sub-section (4), the Minister may issue written directions to the board of a public hospital on any matter in relation to the public hospital that the Minister considers necessary or expedient if the Minister considers that the direction— (a) is in the public interest; and (b) will give effect to the objectives of this Act. (2) A direction may be given generally in relation to public hospitals or in relation to a specified public hospital or a specified class of public hospitals. s. 14 s. 14 -- 12 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 9 (3) The board of a public hospital must comply with any direction issued to it. (4) A direction issued under this section must not— (a) refer to the health care or health services provided or proposed to be provided to a particular person; or (b) refer to the employment or engagement of a particular person by a public hospital; or (c) require the supply of goods or services to a public hospital by any particular person or organisation unless the supply is in accordance with a tender process. (5) The Minister must cause copies of each direction issued to be made available on request to members of the public. 40C. Appointment of delegate to board (1) The Minister may appoint not more than 2 delegates to the board of a public hospital if the Minister considers that such an appointment will assist the board to improve the performance of the public hospital. (2) A delegate is not a member of the board of a public hospital. (3) In determining if an appointment of a delegate under sub-section (1) will assist the board to improve the performance of the public hospital, the Minister must have regard to— (a) the financial performance of the public hospital; and s. 14 -- 13 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 10 (b) the safety and quality of the health services provided by the public hospital; and (c) whether the public hospital is complying with the health service agreement to which it is a party; and (d) whether the board has requested such an appointment. (4) The Minister may appoint a delegate irrespective of whether the board has requested such an appointment. (5) The instrument of appointment of a delegate— (a) must be published in the Government Gazette; and (b) must specify the terms and conditions of appointment; and (c) may specify any remuneration to which the delegate is entitled. (6) A delegate— (a) subject to sub-sections (7) and (8), holds office for the period specified in the instrument of appointment, being a period of not more than 12 months from the date of appointment; and (b) is eligible for re-appointment; and (c) is entitled to be reimbursed reasonable expenses incurred in holding office as delegate; and (d) is not, in respect of the office of delegate, subject to the provisions of the Public Sector Management and Employment Act 1998. s. 14 -- 14 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 11 (7) A delegate may resign by writing signed by that person and delivered to the Minister. (8) The Minister may revoke the appointment of a delegate. 40D. Functions of delegate The functions of a delegate to the board of a public hospital are— (a) to attend meetings of the board and observe its decision-making processes; and (b) to provide advice or information to the board to assist it in understanding its obligations under this Act; and (c) to advise the Minister and the Secretary on any matter relating to the public hospital or the board. 40E. Obligations of board to delegate The board of a public hospital must— (a) permit a delegate appointed to the board to attend any meeting of the board; and (b) provide a delegate appointed to the board with information or a copy of any notice or other document provided to the members of the board at the same time as such information, notice or other document is provided to the members.". 15. Repeal of Division 4A of Part 3 Division 4A of Part 3 of the Principal Act is repealed. s. 15 -- 15 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 12 16. New section 44A inserted After section 44 of the Principal Act insert— "44A. Statement of priorities for denominational hospitals The board of a denominational hospital and the Minister may agree to a statement of priorities in respect of a financial year that specifies the matters referred to in section 65ZFB with any necessary modifications to that section.". 17. Repeal of Division 7 of Part 3 Division 7 of Part 3 of the Principal Act is repealed. 18. Powers of Minister After section 58(1)(ca) of the Principal Act insert— "(cb) in the case of a public health service— (i) has substantially failed to meet any of the objectives, priorities or key performance outcomes specified in its current statement of priorities under section 65ZFA or in its statements of priorities under section 65ZFA in relation to the last 2 financial years; and (ii) has failed to identify and adequately address any problems relating to the failure referred to in sub-paragraph (i) in a timely manner; or (cc) in the case of a public hospital or public health service, has failed to comply with a direction issued by the Minister under section 40B or 66A; or". s. 16 -- 16 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 13 19. New Division 8A of Part 3 inserted After section 62 of the Principal Act insert— 'Division 8A—Audits of Public Hospitals, Public Health Services, Multi Purpose Services and Denominational Hospitals 63. Definition In this Division, "agency" means— (a) a public hospital; or (b) a multi purpose service; or (c) a denominational hospital. 63A. Secretary may commission audits (1) Having regard to the objectives of this Act and the public interest, the Secretary may commission an audit under this Division of an agency to determine whether the agency— (a) is effectively using the public funds allocated to it; or (b) is providing health services of a high quality; or (c) in the case of a public health service, is meeting the objectives, priorities and key performance outcomes specified in its current statement of priorities under section 65ZFA; or (d) in the case of a denominational hospital to which a statement of priorities applies, is meeting the objectives, priorities and key performance outcomes specified in its current statement of priorities under section 44A. s. 19 -- 17 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 14 (2) If the Secretary commissions an audit, the Secretary must set the terms of reference for the audit, including when the auditor is to report to the Secretary. (3) An auditor under this Division must report to the Secretary in accordance with sub-section (2). 63B. Appointment or engagement of auditors (1) The Secretary may appoint an employee under Part 3 of the Public Sector Management and Employment Act 1998 or engage any other person with the qualifications, skills or expertise which, in the opinion of the Secretary, are appropriate to carry out an audit under this Division. (2) The Secretary must specify the terms and conditions on which a person is engaged to carry out an audit under this Division. (3) The Secretary must give written notice to the chief executive officer of an agency in respect of which an audit will be carried out under this Division stating— (a) that an audit will be carried out and the terms of reference for the audit; and (b) the name of the auditor who has been appointed or engaged to carry out the audit. (4) The Secretary must issue to an auditor a copy of the auditor's authorisation to act as an auditor under this Division. s. 19 -- 18 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 15 63C. Powers of auditors (1) An auditor may at any time, with such assistance as he or she reasonably requires, for the purpose of carrying out an audit under this Division enter the premises of an agency and may— (a) inspect the premises; and (b) inspect, take possession of, make copies of or take extracts from any document; and (c) ask questions of any— (i) person who is engaged or employed in or by the agency; (ii) member or director of the board of the agency. (2) If any document is seized under sub-section (1), the auditor must return the document to the agency within 7 days after it is seized. (3) A person must not refuse or fail to give full and true answers to the best of that person's knowledge to any questions asked by an auditor in the performance or exercise of any power under this Division. Penalty: 60 penalty units. (4) An answer given pursuant to a requirement under sub-section (3) is not admissible in evidence against the person in criminal proceedings other than proceedings under this section. (5) A person must not obstruct or hinder an auditor in the performance or exercise of the auditor's powers under this Division. Penalty: 60 penalty units. s. 19 -- 19 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 16 (6) An auditor must produce a copy of his or her authorisation to act as an auditor if requested to do so. 63D. Confidentiality requirements (1) A person who is, or at any time has been, an auditor under this Division must not, except to the extent necessary to perform any official duties or to perform or exercise any function or power under this Act, either directly or indirectly, make a record of or divulge or communicate to any person any information that is or was acquired by the person by reason of being, or having been, an auditor or make use of any such information for any purpose other than the performance of official duties or the performance or exercise of that function or power. Penalty: 100 penalty units. (2) Sub-section (1) does not preclude a person from— (a) producing a document to a court in the course of criminal proceedings; or (b) divulging or communicating to a court in the course of any criminal proceedings any matter or thing coming under the notice of the person in the performance of official duties or in the performance or exercise of a function or power referred to in sub-section (1); or s. 19 -- 20 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 17 (c) producing a document or divulging or communicating information with the prior consent of the person to whom it relates, or if that person has died, with the consent of the senior available next of kin of that person.'. 20. Heading to Division 9B of Part 3 For the heading to Division 9B of Part 3 of the Principal Act substitute— "Division 9B—Public Health Services". 21. Incorporation In section 65P of the Principal Act for "metropolitan health service" substitute "public health service". 22. Public health services do not represent the Crown (1) Insert the following heading to section 65Q of the Principal Act— "Public health services do not represent the Crown". (2) In section 65Q of the Principal Act, for "metropolitan health service" substitute "public health service". 23. Objects of public health services (1) Insert the following heading to section 65R of the Principal Act— "Objects of public health services". (2) In section 65R of the Principal Act— (a) in sub-section (1), for "metropolitan health service" (wherever occurring) substitute "public health service"; (b) in sub-section (2), for "metropolitan health service" substitute "public health service". s. 20 -- 21 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 18 24. Board of directors (1) In section 65S(1) of the Principal Act, for "metropolitan health service" substitute "public health service". (2) For section 65S(2) of the Principal Act substitute— "(2) The functions of the board of a public health service are— (a) to develop statements of priorities and strategic plans for the operation of the public health service and to monitor compliance with those statements and plans; (b) to develop financial and business plans, strategies and budgets to ensure the accountable and efficient provision of health services by the public health service and the long term financial viability of the public health service; (c) to establish and maintain effective systems to ensure that the health services provided meet the needs of the communities served by the public health service and that the views of users and providers of health services are taken into account; (d) to monitor the performance of the public health service to ensure that— (i) the public health service operates within its budget; (ii) its audit and accounting systems accurately reflect the financial position and viability of the public health service; s. 24 -- 22 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 19 (iii) the public health service adheres to its financial and business plans, strategic plans and statements of priorities; (iv) effective and accountable risk management systems are in place; (v) effective and accountable systems are in place to monitor and improve the quality and effectiveness of health services provided by the public health service; (vi) any problems identified with the quality or effectiveness of the health services provided are addressed in a timely manner; (vii) the public health service continuously strives to improve the quality of the health services it provides and to foster innovation; (viii) committees established or appointed under this Division operate effectively; (e) to appoint a chief executive officer of the public health service and to determine, subject to the Secretary's approval, his or her remuneration and the terms and conditions of appointment; (f) to monitor the performance of the chief executive officer of the public health service, each financial year, having regard to the objectives, priorities and key performance outcomes specified in the service's statement of priorities under section 65ZFA; s. 24 -- 23 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 20 (g) to establish the organisational structure, including the management structure, of the public health service; (h) to develop arrangements with other relevant agencies and service providers to enable effective and efficient service delivery and continuity of care; (i) to ensure that the Minister and the Secretary are advised about significant board decisions and are informed in a timely manner of any issues of public concern or risks that affect or may affect the public health service; (j) to establish a Finance Committee, an Audit Committee and a Quality Committee; (k) to facilitate health research and education; (l) to adopt a code of conduct for staff of the public health service; (m) to provide appropriate training for directors; (n) any other functions conferred on the board by or under this Act.". (3) In section 65S(3) of the Principal Act, for "metropolitan health service" substitute "public health service". (4) After section 65S(3) of the Principal Act insert— "(4) In performing its functions and exercising its powers, the board of a public health service must have regard to— (a) the needs and views of patients and other users of the health services that the public health service provides and s. 24 -- 24 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 21 the community that the public health service serves; and (b) the need to ensure that the public health service uses its resources in an effective and efficient manner; and (c) the need to ensure that resources of the Victorian public hospital sector generally are used effectively and efficiently.". 25. Directors In section 65T(1) and (5) of the Principal Act, for "metropolitan health service" substitute "public health service". 26. Terms and conditions In section 65U(1) and (2) of the Principal Act, for "metropolitan health service" substitute "public health service". 27. Removal and resignation In section 65V(1) of the Principal Act, for "metropolitan health service" substitute "public health service". 28. Disclosure of interest In section 65W(1) of the Principal Act, for "metropolitan health service" substitute "public health service". 29. Procedure of board In section 65X of the Principal Act, for "metropolitan health service" substitute "public health service". s. 25 -- 25 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 22 30. New sections 65XA and 65XB inserted After section 65X of the Principal Act insert— "65XA. Chief executive officer (1) The board of a public health service must appoint a chief executive officer of the public health service and determine, subject to the Secretary's approval, the remuneration of the chief executive officer and the terms and conditions of his or her employment. (2) The chief executive officer of a public health service is subject to the direction of the board in controlling and managing the public health service. 65XB. Functions of the chief executive officer (1) The functions of the chief executive officer are— (a) to manage the public health service in accordance with— (i) the financial and business plans, strategies and budgets developed by the board; and (ii) the instructions of the board; (b) to prepare material for consideration by the board including statements of priorities, strategic plans, business plans, strategies and budgets; (c) to ensure that the board and the committees established or appointed under this Division are assisted and provided with relevant information to enable them to perform their functions effectively and efficiently; s. 30 -- 26 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 23 (d) to implement effective and accountable systems to monitor the quality and effectiveness of health services provided by the public health service; (e) to ensure that the public health service continuously strives to improve the quality of the health services it provides and to foster innovation; (f) to ensure that the board's decisions are implemented effectively and efficiently throughout the public health service; (g) to inform the board in a timely manner of any issues of public concern or risks that affect or may affect the public health service; (h) to inform the board, the Secretary and the Minister without delay of any significant issues of public concern or significant risks affecting the public health service. (2) In performing his or her functions, the chief executive officer must have regard to— (a) the needs and views of patients and other users of the health services that the public health service provides and the community that the public health service serves; and (b) the need to ensure that the public health service uses its resources in an effective and efficient manner; and (c) the need to ensure that resources of the Victorian public hospital sector generally are used effectively and efficiently.". s. 30 -- 27 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 24 31. Immunity In section 65Y of the Principal Act— (a) in sub-section (1), for "metropolitan health service" substitute "public health service"; (b) in sub-section (2), for "metropolitan health service" (wherever occurring) substitute "public health service". 32. Validity of acts or decisions In section 65Z of the Principal Act, for "metropolitan health service" substitute "public health service". 33. New sections 65ZAA, 65ZAB and 65ZAC inserted After section 65Z of the Principal Act insert— "65ZAA. Appointment of delegate to board (1) The Minister may appoint not more than 2 delegates to the board of a public health service if the Minister considers that such an appointment will assist the board to improve the performance of the public health service. (2) A delegate is not a director of the board of a public health service. (3) In determining if an appointment of a delegate under sub-section (1) will assist the board to improve the performance of the public health service, the Minister must have regard to— (a) the need to ensure that the public health service is meeting the objectives, priorities and key performance outcomes specified in the service's statement of priorities under section 65ZFA; and s. 31 -- 28 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 25 (b) whether the board has requested such an appointment. (4) The Minister may appoint a delegate irrespective of whether the board has requested such an appointment. (5) The instrument of appointment of a delegate— (a) must be published in the Government Gazette; and (b) must specify the terms and conditions of appointment; and (c) may specify any remuneration to which the delegate is entitled. (6) A delegate— (a) subject to sub-sections (7) and (8), holds office for the period specified in the instrument of appointment, being a period of not more than 12 months from the date of appointment; and (b) is eligible for re-appointment; and (c) is entitled to be reimbursed reasonable expenses incurred in holding office as delegate; and (d) is not, in respect of the office of delegate, subject to the provisions of the Public Sector Management and Employment Act 1998. (7) A delegate may resign by writing signed by that person and delivered to the Minister. (8) The Minister may revoke the appointment of a delegate. s. 33 -- 29 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 26 65ZAB. Functions of delegate The functions of a delegate to the board of a public health service are— (a) to attend meetings of the board and observe its decision-making processes; and (b) to provide advice or information to the board to assist it in understanding its obligations under this Act; and (c) to advise the Minister and the Secretary on any matter relating to the public health service or the board. 65ZAC. Obligations of board to delegate The board of a public health service must— (a) permit a delegate appointed to the board to attend any meeting of the board or any meeting of its committees established or appointed under this Division; and (b) provide a delegate appointed to the board with information or a copy of any notice or other document provided to the directors of the board or to the members of any of the board's committees established or appointed under this Division at the same time as such information, notice or other document is provided to the directors or members.". s. 33 -- 30 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 27 34. Advisory committees In section 65ZA of the Principal Act— (a) in sub-section (1), for "metropolitan health service" substitute "public health service"; (b) in sub-section (2), for "metropolitan health service" (wherever occurring) substitute "public health service"; (c) in sub-section (3), for "metropolitan health service" substitute "public health service". 35. Community advisory committee In section 65ZB of the Principal Act— (a) in sub-section (1), for "metropolitan health service" substitute "public health service"; (b) in sub-section (2), for "metropolitan health service" (wherever occurring) substitute "public health service"; (c) in sub-section (4), for "metropolitan health service" substitute "public health service". 36. Primary care and population health advisory committee In section 65ZC of the Principal Act— (a) in sub-section (1), for "metropolitan health service" substitute "public health service"; (b) in sub-section (2), for "metropolitan health service" (wherever occurring) substitute "public health service"; (c) in sub-section (3), for "metropolitan health service" substitute "public health service". s. 34 -- 31 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 28 37. Procedure of advisory committees In section 65ZE of the Principal Act, for "metropolitan health service" substitute "public health service". 38. Strategic plans In section 65ZF of the Principal Act— (a) in sub-section (1), for "metropolitan health service" (wherever occurring) substitute "public health service"; (b) in sub-section (4), for "metropolitan health service" substitute "public health service". 39. New sections 65ZFA and 65ZFB inserted After section 65ZF of the Principal Act insert— "65ZFA. When statement of priorities to be prepared (1) In respect of each financial year, the board of a public health service must— (a) prepare, in consultation with the Secretary, a proposed statement of priorities in relation to the public health service in accordance with section 65ZFB; and (b) submit the proposed statement of priorities to the Minister. (2) If the board of the public health service and the Minister fail to agree on a statement of priorities before 1 October of the financial year to which the statement of priorities relates, the Minister may make a statement of priorities in relation to the public health service in accordance with section 65ZFB. s. 37 -- 32 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 29 (3) A statement of priorities may be varied at any time if the board of the public health service and the Minister so agree. (4) If the board of the public health service and the Minister fail to agree to a proposed variation of a statement of priorities within 28 days after the variation is proposed, the Minister may— (a) vary the statement of priorities; or (b) decline to vary the statement of priorities. (5) The Minister must cause copies of each statement of priorities and any variation to be made available on request to members of the public. 65ZFB. Content of statement of priorities A public health service's statement of priorities under section 65ZFA must— (a) be consistent with the strategic plan approved by the Minister for the operation of the service; and (b) specify in respect of the financial year to which it relates— (i) the services to be provided by the public health service and the funds to be provided to the public health service; and (ii) the objectives, priorities and key performance outcomes to be met by the public health service; and s. 39 -- 33 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 30 (iii) the performance indicators, targets or other measures against which the public health service's performance is to be assessed and monitored; and (iv) how and when the public health service must report to the Minister and the Secretary on its performance in relation to the specified objectives, priorities and key performance outcomes; and (v) such other matters as, from time to time, are agreed by the Minister and the board of the public health service or are determined by the Minister.". 40. Annual meetings In section 65ZG of the Principal Act— (a) in sub-sections (1), (2) and (3), for "metropolitan health service" (wherever occurring) substitute "public health service"; (b) in sub-section (4), for "metropolitan health service" substitute "public health service". 41. New sections 66 and 66A inserted After section 65ZG of the Principal Act insert— "66. Notice of proposed direction (1) If the Minister proposes to issue the board of a public health service with a direction under section 66A, the Minister must give a copy of the proposed direction to the board at least 7 days before giving the direction. s. 40 -- 34 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 31 (2) The board of a public health service may give the Minister comments in relation to the proposed direction before the day on which the direction is to be issued. (3) The Minister must take into account the comments of the board of a public health service in determining— (a) whether to issue the direction; and (b) if the direction is to be issued, the content of the direction. 66A. Minister may issue directions (1) Subject to sub-section (4), the Minister may issue written directions to the board of a public health service on any matter in relation to the public health service that the Minister considers necessary or expedient if the Minister considers that the direction— (a) is in the public interest; and (b) will give effect to the objectives of this Act. (2) A direction may be given generally in relation to public health services or in relation to a specified public health service or a specified class of public health services. (3) The board of a public health service must comply with any direction issued to it. (4) A direction issued under this section must not— (a) refer to the health care or health services provided or proposed to be provided to a particular person; or (b) refer to the employment or engagement of a particular person by a public health service; or s. 41 -- 35 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 32 (c) require the supply of goods or services to a public health service by any particular person or organisation unless the supply is in accordance with a tender process. (5) The Minister must cause copies of each direction issued to be made available on request to members of the public.". 42. Public hospital patient services agreements After section 69B(3) of the Principal Act insert— "(4) The Minister must not enter into an agreement under sub-section (1) on or after the day on which section 42 of the Health Services (Governance and Accountability) Act 2004 comes into operation. (5) Sub-section (4) does not apply to an agreement for the provision of health services to public hospital patients from the New Mildura Base Hospital.". 43. New section 115JA inserted After section 115J of the Principal Act insert— "115JA. Immunity (1) A member of a board of a multi purpose service is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a power or the discharge of a duty under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act. s. 42 -- 36 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 33 (2) Any liability resulting from an act or omission that would but for sub-section (1) attach to a member of the board of a multi purpose service attaches instead to the multi purpose service.". 44. Repeal of section 115K Section 115K of the Principal Act is repealed. 45. Membership of HPV and terms of office In section 134D(1)(b) of the Principal Act, for "metropolitan health service" (wherever occurring) substitute "public health service". 46. Terms and conditions In section 134E(3)(a) of the Principal Act, for "metropolitan health service" substitute "public health service". 47. Removal and resignation In section 134F(2) of the Principal Act, for "metropolitan health service" substitute "public health service". 48. Confidentiality (1) In section 141(1) of the Principal Act, in the definition of "relevant person", after paragraph (c) insert— "(ca) a person who is or has been a delegate to a board of a public hospital appointed under section 40C; or (cb) a person who is or has been a delegate to a board of a public health service appointed under section 65ZAA; or". s. 44 -- 37 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 34 (2) In section 141(3) of the Principal Act— (a) in paragraphs (ga) and (gb), for "the giving" substitute "to the giving"; (b) after paragraph (ga) insert— "(gaa) to the giving of information to an auditor under Division 8A of Part 3 of this Act;". 49. New section 157H inserted After section 157G of the Principal Act insert— "157H. Supreme Court—limitation of jurisdiction It is the intention of sections 243 and 270 to alter or vary section 85 of the Constitution Act 1975.". 50. Spent transitional provisions repealed (1) Section 177(1) of the Principal Act is repealed. (2) Division 4 of Part 9 of the Principal Act is repealed. 51. New Parts 12 and 13 After Part 11 of the Principal Act insert— 'PART 12—TRANSITIONAL PROVISIONS RELATING TO PUBLIC HEALTH SERVICES 232. Definitions In this Part— "commencement day" means the day on which section 53(1) of the Health Services (Governance and Accountability) Act 2004 comes into operation; s. 49 -- 38 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 35 "effective date", in relation to an Order under this Part, means the date specified in the Order to be the effective date of that Order; "instrument" includes a document and an oral agreement; "metropolitan health service" means a body that was listed in Schedule 5 immediately before the commencement day or premises occupied by such a body; "old metropolitan health service instrument" means an instrument subsisting immediately before the commencement day— (a) to which a metropolitan health service was a party; or (b) that was given to or in favour of a metropolitan health service; or (c) that refers to a metropolitan health service; or (d) under which— (i) money is, or may become, payable to or by a metropolitan health service; or (ii) other property is to be, or may become liable to be, transferred to or by a metropolitan health service; s. 51 -- 39 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 36 "old public hospital" means— (a) Ballarat Health Services; or (b) Barwon Health; or (c) Bendigo Health Care Group; or (d) Goulburn Valley Health; or (e) Latrobe Regional Hospital; or (f) a public hospital referred to in an Order under section 239; "old public hospital instrument" means an instrument subsisting immediately before the effective date of an Order under section 239 in the case of an old public hospital referred to in paragraph (f) of the definition of "old public hospital" or immediately before 1 July 2004 in the case of any other old public hospital— (a) to which an old public hospital was a party; or (b) that was given to or in favour of an old public hospital; or (c) that refers to an old public hospital; or (d) under which— (i) money is, or may become, payable to or by an old public hospital; or (ii) other property is to be, or may become liable to be, transferred to or by an old public hospital; s. 51 -- 40 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 37 "property" means a legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description. 233. Extra-territorial operation It is the intention of the Parliament that the operation of this Part should, as far as possible, include operation in relation to the following— (a) land situated outside Victoria, whether in or outside Australia; (b) things situated outside Victoria, whether in or outside Australia; (c) acts, transactions and matters done, entered into or occurring outside Victoria, whether in or outside Australia; (d) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Part, be governed or otherwise affected by the law of the Commonwealth, another State, a Territory or a foreign country. 234. Public health service same body as former metropolitan health service A body listed in Schedule 5, that on the commencement day becomes a public health service, is taken to be the same body that it was before that day, despite it ceasing to be a metropolitan health service. s. 51 -- 41 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 38 235. Certain public health services same body as certain former public hospitals (1) A body, that on 1 July 2004 becomes a public health service, is taken to be the same body that it was before that date, despite it ceasing to be a public hospital. (2) A body, that on the effective date of an Order under section 239 becomes a public health service, is taken to be the same body that it was before that date, despite it ceasing to be a public hospital and any change to its name. 236. First directors of boards of certain public health service (1) Without limiting the effect of section 234, the directors of the board of a metropolitan health service (that on the commencement day becomes a public health service) continue to hold office as directors of the board of that public health service on and after that day for the period for which they were appointed, subject to section 65V, and on the same terms and conditions that applied to them immediately before that day. (2) Without limiting the effect of section 235— (a) the members of the board of a public hospital (that on 1 July 2004 becomes a public health service) continue to hold office as directors of that public health service on and after that date for the period for which they were appointed, subject to section 65V, and on the same terms and conditions that applied to them immediately before that date; and s. 51 -- 42 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 39 (b) the member of the board of a public hospital (that on 1 July 2004 becomes a public health service) who immediately before that date was the chairperson or president (by whatever name so called) of the board is taken to have been appointed the chairperson of the board of that public health service until 31 October 2004. 237. Old instruments referring to metropolitan health service (1) Each old metropolitan health service instrument (including an instrument made under an Act) has effect and continues to have effect according to its tenor on and after the commencement day as if a reference in the instrument to a metropolitan health service were a reference to the public health service that the metropolitan health service becomes on that day. (2) Without limiting the effect of sub-section (1), on and after the commencement day, an instrument creating a trust in relation to— (a) a metropolitan health service; or (b) a former agency of which a metropolitan health service is the successor agency— has effect and continues to have effect according to its tenor as if the trust were in relation to the public health service that the metropolitan health service becomes on that day. s. 51 -- 43 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 40 238. Old instruments referring to public hospitals (1) Sub-sections (2) and (3) apply to a body that is a public health service and, immediately before 1 July 2004, was a public hospital. (2) Each old public hospital instrument (including an instrument made under an Act) that relates to the body has effect and continues to have effect according to its tenor on and after 1 July 2004 as if a reference in the instrument to the body were a reference to the body as the public health service that the body becomes on that date. (3) Without limiting the effect of sub-section (2), on and after 1 July 2004, an instrument creating a trust in relation to— (a) the body; or (b) a former agency of which the body is the successor agency— has effect and continues to have effect according to its tenor as if the trust were in relation to the public health service that the body becomes on that date. (4) Sub-sections (5) and (6) apply to a body that is a public health service and, immediately before the effective date of an Order under section 239 in relation to that body, was a public hospital. (5) Each old public hospital instrument (including an instrument made under an Act) that relates to the body has effect and continues to have effect according to its tenor on and after the effective date of an Order under section 239 as if a reference in the instrument to the body were a reference s. 51 -- 44 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 41 to the body as the public health service that the body becomes on that date. (6) Without limiting the effect of sub-section (5), on and after the effective date of an Order under section 239, an instrument creating a trust in relation to— (a) the body; or (b) a former agency of which the body is the successor agency— has effect and continues to have effect according to its tenor as if the trust were in relation to the public health service that the body becomes on that date. 239. Order establishing a public health service (1) If, following consultation with the board of a public hospital, the Minister considers that it is in the public interest that the public hospital become a public health service, the Minister may recommend that an Order be made under sub-section (3). (2) In making a recommendation under sub- section (1), the Minister must have regard to— (a) the nature and scope of the health services provided by the public hospital; and (b) the size of the public hospital's budget; and (c) any proposal for major redevelopment of the public hospital or major capital investment by the Crown in the public hospital; and (d) any other matter that the Minister considers relevant. s. 51 -- 45 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 42 (3) The Governor in Council, by Order published in the Government Gazette, on the recommendation of the Minister under sub- section (1), may establish a public health service by the name specified in the Order. (4) If an Order is made under sub-section (3)— (a) the public hospital whose name is specified in the Order becomes a public health service; and (b) Schedule 1 is amended by the omission of the name of the public hospital whose name is specified in the Order; and (c) Schedule 5 is amended by the addition of the name specified in the Order of the new public health service in the appropriate alphabetical position. 240. Establishment of first board of certain public health services If, on the effective date of an Order under section 239, a public hospital becomes a public health service— (a) the members of the board of the public hospital go out of office; and (b) a board must be appointed in accordance with section 65T. 241. First by-laws (1) If, on the effective date of an Order under section 239 or on 1 July 2004, a public hospital becomes a public health service— (a) the by-laws of the public hospital are taken to have been revoked; and s. 51 -- 46 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 43 (b) the Governor in Council, by Order published in the Government Gazette, on the recommendation of the Minister, may specify the by-laws, including the core objects, of the public health service. (2) The by-laws of a public health service specified in an Order under sub-section (1) are taken to have been made by the board of the public health service and approved by the Secretary under section 24. 242. Registrar of Titles The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument, must make any amendments in the Register that are necessary because of the operation of this Part. 243. Operation of provisions not subject to review Nothing done under this Part gives rise to any cause or right of action or application before any court or tribunal. __________________ PART 13—RE-ORGANISATION OF PUBLIC HOSPITALS AND PUBLIC HEALTH SERVICES 244. Definitions In this Part— "agency" means— (a) a public hospital; or (b) a public health service; s. 51 -- 47 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 44 "effective date", in relation to an Order under this Part, means the date specified in the Order to be the effective date of that Order; "instrument" includes a document and an oral agreement; "liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective; "old instrument" means an instrument subsisting immediately before the effective date of an Order under section 248— (a) to which a transferring agency was a party; or (b) that was given to or in favour of a transferring agency; or (c) that refers to a transferring agency; or (d) under which— (i) money is, or may become, payable to or by a transferring agency; or (ii) other property is to be, or may become liable to be, transferred to or by a transferring agency; "property" means a legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description; s. 51 -- 48 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 45 "receiving agency" means an agency to which property, rights or liabilities are transferred under this Part; "rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective; "staff transfer date" in relation to a list referred to in section 263 means the date fixed by the Minister under section 262 as the staff transfer date for the purposes of that list; "transferred hospital employee" means a person who, by reason of section 264 is regarded as being employed by a receiving agency with effect from the relevant staff transfer date; "transferring agency" means an agency from which property, rights or liabilities are transferred under this Part. 245. Extra-territorial operation It is the intention of the Parliament that the operation of this Part should, as far as possible, include operation in relation to the following— (a) land situated outside Victoria, whether in or outside Australia; (b) things situated outside Victoria, whether in or outside Australia; (c) acts, transactions and matters done, entered into or occurring outside Victoria, whether in or outside Australia; s. 51 -- 49 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 46 (d) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Part, be governed or otherwise affected by the law of the Commonwealth, another State, a Territory or a foreign country. 246. Part to prevail If there is any inconsistency between this Part and Division 9 of Part 3 or Division 5 or 6 of Part 9, this Part prevails to the extent of the inconsistency. 247. Minister to consider report (1) If the Minister proposes to recommend under this Part the re-organisation of an agency or the services it provides, the Minister must cause a report of the proposal to be prepared and made available to the board of each agency affected by the proposal. (2) The Minister, after consideration of any written submission made on a report under sub-section (1) within 30 days after the report is made available and having regard to the objectives of this Act and the public interest, may make a recommendation under section 248. (3) Despite sub-sections (1) and (2), the Minister, having regard to the objectives of this Act and public interest, may make a recommendation under section 248 at any time in relation to Women's and Children's Health. s. 51 -- 50 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 47 248. Order in Council (1) The Governor in Council, by Order published in the Government Gazette, on the recommendation of the Minister, may do one or more of the following— (a) establish an agency; (b) appoint a person to act as the first chief executive officer of an agency established by Order under this section and may specify the period (being not more than 6 months) of appointment and the terms and conditions of appointment; (c) specify the by-laws, including the core objects, of an agency established by Order under this section; (d) allocate to an agency or agencies (whether or not established by Order under this section) such of the property, rights and liabilities (wherever located) of another agency (whether or not its incorporation is cancelled by Order under this section) as are specified in the Order; (e) cancel the incorporation of an agency from which property, rights and liabilities are transferred. (2) Without limiting sub-section (1)(d), an Order may allocate property, rights and liabilities by reference— (a) to a campus of an agency or other place; or (b) to a class or category of property, rights or liabilities; or s. 51 -- 51 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 48 (c) to a combination of paragraphs (a) and (b). (3) Before making a recommendation to make an Order under sub-section (1)(e), the Minister must be satisfied that as far as practicable the property, rights and liabilities, wherever located, of the transferring agency whose incorporation is to be cancelled, have been transferred to another agency or agencies. 249. Amendment of Schedules if new agency established If an agency is established by Order under section 248— (a) a new agency with the name specified in the Order comes into existence; and (b) in the case of a new public hospital, Schedule 1 is amended by the addition of the name of the new public hospital in the appropriate alphabetical position; and (c) in the case of a new public health service, Schedule 5 is amended by the addition of the name of the new public health service in the appropriate alphabetical position. 250. Establishment of first board (1) If a public hospital is established by Order under section 248— (a) despite section 33(3) to (11), the board of the public hospital consists of the persons (being not less than 6 and not more than 12) named in the Order; and s. 51 -- 52 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 49 (b) for the purposes of Division 4 of Part 3, the Order constitutes the instrument of appointment of the members of the board and may include terms and conditions of appointment. (2) If a public health service is established by Order under section 248— (a) despite section 65T, the board of the public health service consists of the persons (being not less than 6 and not more than 9) named in the Order; and (b) for the purposes of Division 9B of Part 3, the Order constitutes the instrument of appointment of the directors of the board and may include terms and conditions of appointment. 251. First by-laws of agency If, by Order under section 248, an agency is established and the agency's by-laws are specified, the by-laws are taken to have been made by the board of the agency and approved by the Secretary under section 24. 252. Appointment of first chief executive officer If, by Order under section 248, an agency is established and a chief executive officer of the agency is appointed, the appointment is taken to have been made by the board of the agency and approved by the Secretary under section 25. 253. Cancellation of agency's incorporation (1) If the incorporation of a public hospital is cancelled by Order under section 248— (a) Schedule 1 is amended by the omission of the name of that public hospital; and s. 51 -- 53 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 50 (b) the members of the board of the public hospital go out of office; and (c) the chief executive officer of the public hospital goes out of office. (2) If the incorporation of a public health service is cancelled by Order under section 248— (a) Schedule 5 is amended by the omission of the name of that public health service; and (b) the directors of the board of the public health service go out of office; and (c) the chief executive officer of the public health service goes out of office. (3) If the incorporation of an agency is cancelled by Order under section 248 and all its property, rights and liabilities have not been allocated to another agency, on the effective date of the Order— (a) the remaining property and rights of the agency, wherever located, vest in the Crown; and (b) the remaining liabilities of the agency, wherever located, become liabilities of the Crown; and (c) the Crown becomes the successor in law of the agency in respect of that property and those rights and liabilities; and (d) this Part applies as if any reference— (i) to property, rights and liabilities of a transferring agency whose incorporation is cancelled by Order under section 248 were a reference to property, rights and s. 51 -- 54 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 51 liabilities vested in the Crown under this sub-section; and (ii) to a receiving agency were a reference to the Crown. (4) Sub-section (3) does not apply to a trust. 254. Vesting of property, rights and liabilities If property, rights or liabilities are allocated by Order under section 248 from one agency to another agency, on the effective date of the Order— (a) all the property and rights specified in the Order of the transferring agency vest in the receiving agency; and (b) all the liabilities specified in the Order of the transferring agency become liabilities of the receiving agency; and (c) the receiving agency becomes the successor in law of the transferring agency in respect of that property and those rights and liabilities. 255. Substitution of party to agreement If, under section 253 or 254, the rights and liabilities of a transferring agency under an agreement vest in, or become liabilities of, a receiving agency— (a) the receiving agency becomes, on the effective date of the relevant Order, a party to the agreement in place of the transferring agency; and (b) on and after the effective date of the relevant Order, the agreement has effect as if the receiving agency had always been a party to the agreement. s. 51 -- 55 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 52 256. Proceedings (1) This section applies if— (a) property or rights of a transferring agency vest in a receiving agency under section 253 or 254; or (b) liabilities of a transferring agency become the liabilities of a receiving agency under section 253 or 254. (2) If, immediately before the effective date of the relevant Order, proceedings relating to the property, rights or liabilities (including arbitration proceedings) to which the transferring agency was a party were pending or existing in any court or tribunal, then, on and after that date, the receiving agency is substituted for the transferring agency as a party to the proceedings and has the same rights in the proceedings as the transferring agency had. 257. Interests in land (1) This section applies if property of a transferring agency vests in a receiving agency under section 253 or 254. (2) Without prejudice to the generality of this Part and despite anything to the contrary in any other Act or law, if immediately before the effective date of the relevant Order, a transferring agency is, in relation to the property, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after that date— (a) the receiving agency is taken to be the registered proprietor of that interest in land; and s. 51 -- 56 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 53 (b) the receiving agency has the same rights and remedies in respect of that interest as the transferring agency had. (3) The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or instrument, must make any amendments in the Register that are necessary because of the operation of this Part. 258. Old instruments (1) Each old instrument relating to property, rights and liabilities of a transferring agency that, under this Part, have vested in, or become liabilities of, a receiving agency has effect and continues to have effect according to its tenor on and after the effective date of the relevant Order as if a reference in the instrument to the transferring agency were a reference to the receiving agency. (2) This section does not apply to an instrument creating a trust to which section 266 applies. 259. Taxes No duty or other tax is chargeable under any Act in respect of anything affected by or done under this Part or in respect of any act or transaction connected with or necessary to be done by reason of this Part, including a transaction entered into or an instrument made, executed, lodged or given. 260. Evidence (1) This section applies if— (a) property or rights of a transferring agency vest in a receiving agency under section 253 or 254; or s. 51 -- 57 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 54 (b) liabilities of a transferring agency become the liabilities of a receiving agency under section 253 or 254. (2) Documentary or other evidence that would have been admissible for or against the interests of a transferring agency if the relevant Order had not been made under section 248, is admissible for or against the interests of the receiving agency. (3) Division 3A of Part III of the Evidence Act 1958 continues to apply with respect to the books of account of a transferring agency and to entries made in those books of account before the effective date of the relevant Order under section 248, whether or not they relate to the property, rights or liabilities. (4) In sub-section (3), "books of account" has the same meaning as in Division 3A of Part III of the Evidence Act 1958. 261. Saving of quality assurance bodies (1) This section applies to a committee, council or other body established by one or more transferring agencies and declared to be an approved quality assurance body under section 139. (2) The Minister, by notice published in the Government Gazette, may declare that a designated committee, council or body to which this section applies is to be taken to be a body established by a designated receiving agency. (3) On the publication of a notice under sub- section (2)— (a) the notice has effect according to its tenor; and s. 51 -- 58 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 55 (b) the declaration of the designated committee, council or body under section 139 continues to have effect and may be revoked in accordance with that section. (4) This section has effect despite anything to the contrary in the by-laws of the designated receiving agency. 262. Staff transfer date (1) The Minister, by notice published in the Government Gazette, may determine a date that is to be the staff transfer date for the purposes of a list under section 263. (2) The Minister may give more than one notice under this section in respect of a transferring agency. 263. List of staff (1) Before the relevant staff transfer date, the Secretary must prepare a list of employees (other than the chief executive officer) of a transferring agency who are to become employees of a receiving agency on that date. (2) The list may specify the employees— (a) by name or position; or (b) by class or category; or (c) by reference to a campus of a transferring agency or other place; or (d) by any combination of paragraphs (a) to (c). (3) The list must specify the receiving agency which on the staff transfer date is to become the employer of each employee specified in the list. s. 51 -- 59 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 56 (4) Nothing in this section prevents a person specified in a list as an employee of a transferring agency from resigning or being dismissed at any time before the relevant staff transfer date in accordance with the terms and conditions of his or her employment. 264. Transfer of staff (1) A person listed as an employee of a transferring agency in a list prepared under section 263 who was such an employee immediately before the relevant staff transfer date is to be regarded as— (a) having been employed by the receiving agency specified in the list with effect from the staff transfer date; and (b) having been so employed on the same terms and conditions as those that applied to the person, immediately before the staff transfer date, as an employee of the transferring agency; and (c) having accrued an entitlement to benefits, in connection with that employment with the receiving agency, that is equivalent to the entitlement that the person had accrued, as an employee of the transferring agency immediately before the staff transfer date. (2) The service of a transferred hospital employee as an employee of the receiving agency is to be regarded for all purposes as having been continuous with the service of the transferred hospital employee, immediately before the relevant staff transfer s. 51 -- 60 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 57 date, as an employee of the transferring agency. (3) A transferred hospital employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of a transferring agency because of this Part. (4) A certificate purporting to be signed by the chief executive officer of the receiving agency certifying that a person named in the certificate was, with effect from the relevant staff transfer date, employed, by virtue of this section by the receiving agency named in the certificate is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it. 265. Future terms and conditions of transferred employees Nothing in section 264 prevents— (a) any of the terms and conditions of employment of a transferred hospital employee from being altered by or under any law, award or agreement with effect from any time after the relevant staff transfer date; or (b) a transferred hospital employee from resigning, or the termination of a transferred hospital employee's employment, at any time after the relevant staff transfer date in accordance with the then existing terms and conditions of his or her employment by the receiving agency. s. 51 -- 61 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 58 266. Trusts in respect of transferring agencies (1) The Governor in Council, by Order published in the Government Gazette, on the recommendation of the Minister, may designate an agency as the successor of a designated transferring agency, for the purposes of any trust or class or category of trusts specified in the Order in relation to the transferring agency. (2) The Minister must not recommend the designation of an agency under sub-section (1) unless the Minister is satisfied that the agency is the appropriate successor for the transferring agency having regard, where relevant, to the campuses operated or to be operated by the designated agency. (3) On and after the effective date of an Order under this section, an instrument creating a trust specified, or in a class or category specified, in the Order in relation to— (a) a transferring agency designated in the Order; or (b) a former agency of which the transferring agency is the successor agency— has effect and continues to have effect according to its tenor as if the trust were in relation to the agency designated in the Order as the successor of the transferring agency. s. 51 -- 62 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 59 (4) On and after the effective date of an Order under this section, an agency designated in the Order must, for the purposes of any trust specified, or in a class or category specified, in the Order in relation to a transferring agency designated in the Order, be taken to be the same body as that transferring agency. 267. Application of property cy-pres not affected Nothing in section 266 in relation to an Order under that section affects the operation of— (a) an order of a court for the application of property cy-pres made before the effective date of that Order; or (b) a scheme or authority for the application of property cy-pres sanctioned or given by the Attorney- General under the Charities Act 1978 before the effective date of that Order. 268. Application to trusts whenever created The amendments made to this Act by the Health Services (Governance and Accountability) Act 2004 apply with respect to a trust (within the meaning of section 3(1)) in relation to a body, whether the trust was created before, on or after the commencement of section 51 of that Act. 269. Validity of things done under this Part Nothing done under or by this Part— (a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil offence; or s. 51 -- 63 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 60 (b) is subject to compliance with or is to be regarded as placing any person in breach of or as constituting a default under any Act or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or right or the disclosure of any information; or (c) is to be regarded as fulfilling any condition which allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or (d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any property, right or liability; or (e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or (f) is to be regarded as frustrating any contract; or (g) releases any surety or other obligor wholly or in part from any obligation. 270. Operation of provisions not subject to review Nothing done under this Part gives rise to any cause or right of action or application before any court or tribunal. s. 51 -- 64 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 61 271. Appointment of administrator (1) If the Minister proposes to make a recommendation under section 248, or has made a recommendation under section 248, and the Minister considers that the appointment of an administrator of an agency will assist the efficient re-organisation of an agency or the services it provides, the Minister may make a recommendation under sub-section (2). (2) The Governor in Council, on the recommendation of the Minister, may do one of the following— (a) appoint an administrator for an agency; (b) appoint an administrator for an agency and remove the agency's chief executive officer from office. (3) The appointment of an administrator may be for such period and subject to such terms and conditions as are specified in the instrument of appointment. (4) On the appointment of an administrator to an agency under this section— (a) the directors or members of the board of the agency cease to hold office; and (b) in the case of a public hospital, sections 33(3) to (11), 34 and 35 cease to apply in relation to the board of the public hospital and continue not to apply during the period of appointment of the administrator; and s. 51 -- 65 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 62 (c) in the case of a public health service, sections 65T, 65U and 65V cease to apply in relation to the board of the public health service and continue not to apply during the period of appointment of the administrator. (5) Section 61 does not apply to the appointment of an administrator under this Part. (6) Sections 61 and 62 do not apply to an agency for which an administrator has been appointed under this Part. (7) The Governor in Council, on the recommendation of the Minister, may at any time revoke the appointment of an administrator and if necessary appoint a new administrator for an agency. 272. Functions of administrator (1) The functions of an administrator of an agency are— (a) to carry out the functions of the board of the agency; and (b) to facilitate the transfer of property, rights and liabilities of an agency to another agency or other agencies under this Part. (2) An administrator of an agency appointed under this Part has and may exercise all the powers and functions and is subject to all the duties of the board of the agency under, and comprises that board for the purposes of, this Act and the by-laws of the agency. s. 51 -- 66 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 63 273. Direction of Secretary An administrator appointed under this Part is subject to the direction of the Secretary in the exercise of the administrator's functions and powers and the performance of the administrator's duties under this Part. __________________'. 52. Schedule 1 In Schedule 1 to the Principal Act— (a) omit "Ballarat Health Services"; (b) omit "Barwon Health"; (c) omit "Bendigo Health Care Group"; (d) omit "Goulburn Valley Health"; (e) omit "Latrobe Regional Hospital". 53. Schedule 5 (1) For the heading to Schedule 5 to the Principal Act substitute— "PUBLIC HEALTH SERVICES". (2) In Schedule 5 to the Principal Act— (a) after the item relating to "Austin Health" insert— "Ballarat Health Services Barwon Health"; (b) after the item relating to "Bayside Health" insert— "Bendigo Health Care Group"; s. 52 -- 67 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 64 (c) after the item relating to "Eastern Health" insert— "Goulburn Valley Health Latrobe Regional Hospital". ═══════════════ s. 53 -- 68 of 69 -- Victorian Legislation Parliamentary Documents Act No. 52/2004 Health Services (Governance and Accountability) Act 2004 65 ENDNOTES † Minister's second reading speech— Legislative Assembly: 13 May 2004 Legislative Council: 8 June 2004 The long title for the Bill for this Act was "to amend the Health Services Act 1988 to strengthen the governance and accountability of certain bodies established under that Act or by Order under that Act and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 13 May 2004 Legislative Council: 8 June 2004 Absolute majorities: Legislative Assembly: 3 June 2004 Legislative Council: 10 June 2004 Endnotes -- 69 of 69 --