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New South Wales
Human Tissue and Anatomy
Legislation Amendment Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Anatomy Act 1977 No 126 2
4 Amendment of Human Tissue Act 1983 No 164 2
5 Amendment of other Acts 2
Schedules
1 Amendment of Anatomy Act 1977 3
2 Amendment of Human Tissue Act 1983 17
3 Amendment of other Acts 46
b01-140-p02.840
New South Wales
Human Tissue and Anatomy
Legislation Amendment Bill 2002
No , 2002
A Bill for
An Act to amend the Anatomy Act 1977, the Human Tissue Act 1983 and other
Acts to make further provision with respect to the removal, retention and use of
human tissue, post-mortem examinations and anatomical examinations; and for
other purposes.
Clause 1 Human Tissue and Anatomy Legislation Amendment Bill 2002
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Human Tissue and Anatomy Legislation Amendment 3
Act 2002. 4
2 Commencement 5
This Act commences on a day or days to be appointed by 6
proclamation. 7
3 Amendment of Anatomy Act 1977 No 126 8
The Anatomy Act 1977 is amended as set out in Schedule 1. 9
4 Amendment of Human Tissue Act 1983 No 164 10
The Human Tissue Act 1983 is amended as set out in Schedule 2. 11
5 Amendment of other Acts 12
The Acts specified in Schedule 3 are amended as set out in that 13
Schedule. 14
Page 2
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Anatomy Act 1977 Schedule 1
Schedule 1 Amendment of Anatomy Act 1977 1
(Section 3) 2
[1] Section 4 Definitions 3
Omit the definitions of anatomy, designated officer and school of anatomy 4
from section 4 (1). 5
Insert in alphabetical order: 6
anatomical examination of a body includes use of the body 7
for medical or scientific purposes. 8
Note. However, an anatomical examination does not include a post 9
mortem examination that is required, directed or authorised as provided by 10
section 5. 11
designated officer means: 12
(a) in relation to a hospital, a person appointed for the time 13
being under section 5 (1) (a) of the Human Tissue 14
Act 1983 to be a designated officer for the hospital, or 15
(b) in relation to a forensic institution, a person appointed 16
for the time being under section 5 (3) of the Human 17
Tissue Act 1983 to be a designated officer for the 18
forensic institution. 19
exercise a function includes perform a duty. 20
forensic institution means: 21
(a) an institution that is under the control of a public health 22
organisation (within the meaning of the Health Services 23
Act 1997), or 24
(b) an accredited pathology laboratory under the Health 25
Insurance Act 1973 of the Commonwealth, 26
at which post mortem examinations of bodies are carried out, 27
but does not include a hospital. 28
function includes a power, authority or duty. 29
human tissue means an organ or other part of a body. 30
licensed premises means a place specified in a licence at which 31
the holder of the licence may conduct anatomical 32
examinations. 33
Page 3
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 1 Amendment of Anatomy Act 1977
[2] Section 4 (3) and (4) 1
Insert after section 4 (2): 2
(3) In this Act, a reference to the use of a body for medical or 3
scientific purposes includes carrying out any procedure on the 4
body, or subjecting the body to an experiment, process or 5
research, for medical or scientific purposes. 6
(4) In this Act, a reference to medical or scientific purposes 7
includes educational purposes connected with medicine or 8
science. 9
[3] Sections 4A and 4B 10
Insert after section 4: 11
4A Notes 12
Notes included in this Act do not form part of this Act. 13
4B Delegation of functions of next of kin 14
(1) A next of kin of a deceased person may from time to time, by 15
instrument in writing, authorise a person to exercise his or her 16
functions under this Act as a next of kin of the deceased 17
person. 18
(2) In such a case, the person so authorised: 19
(a) may exercise the functions of a next of kin of the 20
deceased person under this Act (other than the function 21
conferred by subsection (1)), in the place of the person 22
who authorised him or her, and 23
(b) is taken, for the purposes of this Act, to be a next of kin 24
of the deceased person, and 25
(c) for the purposes of the definition of senior available 26
next of kin in section 4 (1), is taken to be a next of kin 27
of the same order as the person who authorised him or 28
her to exercise the functions of a next of kin. 29
Page 4
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Anatomy Act 1977 Schedule 1
[4] Section 5 1
Omit the section. Insert instead: 2
5 Anatomical examination does not include post mortem 3
examination 4
In this Act, a reference to an anatomical examination, or to the 5
possession of a body for the purposes of an anatomical 6
examination, does not include a post mortem examination, or 7
the possession of a body for the purposes of a post mortem 8
examination, if that post mortem examination is: 9
(a) required or directed to be made by a competent legal 10
authority, or 11
(b) made or to be made pursuant to an authority under 12
Part 5 of the Human Tissue Act 1983. 13
Note. Accordingly, a licence under this Act is not required to conduct such 14
a post mortem examination. 15
[5] Part 2, heading 16
Omit the heading. Insert instead: 17
Part 2 Regulation of anatomical examinations 18
[6] Section 6 Director-General may issue licence to person to conduct 19
anatomical examinations 20
Omit "conduct the study and practice of anatomy" from section 6 (1). 21
Insert instead "conduct anatomical examinations". 22
[7] Section 6 (2) 23
Omit "the study and practice of anatomy". 24
Insert instead "the conduct of anatomical examinations". 25
[8] Section 7 Inspectors 26
Omit "any school of anatomy" from section 7 (2). 27
Insert instead "any licensed premises". 28
Page 5
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 1 Amendment of Anatomy Act 1977
[9] Sections 8 and 8A 1
Omit the sections. Insert instead: 2
8 Authority for anatomical examination where body of deceased at 3
a hospital or forensic institution 4
(1) If a designated officer for a hospital or forensic institution is 5
satisfied, after making such inquiries as are reasonable in the 6
circumstances in relation to a person whose body is at the 7
hospital or forensic institution, that: 8
(a) the person had, during the person's lifetime, given his or 9
her consent in writing to the anatomical examination of 10
the person's body after the person's death, and 11
(b) the consent had not been revoked, 12
the designated officer may, by instrument in writing, authorise 13
the anatomical examination of that person's body. 14
(2) An authority under subsection (1) is not to be given in relation 15
to a deceased child. 16
(3) If the designated officer is not satisfied as to the matters 17
referred to in subsection (1), or the deceased person is a 18
deceased child, and the designated officer is satisfied, after 19
making such inquiries as are reasonable in the circumstances in 20
relation to the deceased person, that: 21
(a) the deceased person had not, during the person's 22
lifetime, expressed an objection to the anatomical 23
examination of the person's body after the person's 24
death, and 25
(b) a senior available next of kin has given his or her 26
consent in writing to the anatomical examination of the 27
person's body, and 28
(c) there is no next of kin of the same or a higher order of 29
the classes in paragraph (a) or (b) of the definition of 30
senior available next of kin in section 4 (1) who 31
objects to the anatomical examination of the person's 32
body, 33
the designated officer may, by instrument in writing, authorise 34
the anatomical examination of the person's body. 35
Page 6
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Anatomy Act 1977 Schedule 1
(4) An authority must be given in accordance with the terms and 1
any conditions of the relevant consent (that is, the consent 2
referred to in subsection (1) (a) or (3) (b)). 3
8A Authority for anatomical examination where body of deceased 4
not at a hospital or forensic institution 5
(1) If the body of a deceased person (other than a deceased child) 6
is at a place other than a hospital or forensic institution, the 7
anatomical examination of that person's body is authorised if: 8
(a) the deceased person had, during the person's lifetime, 9
given his or her consent in writing to the anatomical 10
examination of the person's body after the person's 11
death, and 12
(b) the consent had not been revoked. 13
(2) The authority conferred by subsection (1) is subject to the terms 14
and any conditions of the consent referred to in that subsection. 15
(3) If the body of a deceased person is at a place other than a 16
hospital or forensic institution, a senior available next of kin of 17
the person may, by instrument in writing, authorise the 18
anatomical examination of the person's body. 19
(4) A senior available next of kin must not grant an authority under 20
subsection (3) if it appears to the senior available next of kin, 21
after making such inquiries as are reasonable in the 22
circumstances, that: 23
(a) the deceased person had, during the person's lifetime, 24
expressed an objection to the anatomical examination of 25
the person's body after the person's death, or 26
(b) another next of kin of the same or higher order of the 27
classes in paragraph (a) or (b) of the definition of senior 28
available next of kin in section 4 (1) objects to the 29
anatomical examination of the person's body. 30
Maximum penalty: 10 penalty units. 31
[10] Section 8B Consent by coroner 32
Insert "or a forensic institution" after "hospital" in section 8B (2). 33
Page 7
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 1 Amendment of Anatomy Act 1977
[11] Section 8C Effect of authority 1
Omit section 8C (1). Insert instead: 2
(1) An authority under section 8 or 8A is sufficient authority: 3
(a) for a person who has lawful possession of a body to 4
cause or permit the body to be used by a holder of a 5
licence for anatomical examination in accordance with 6
the authority, and 7
(b) for the holder of a licence, or a person authorised by the 8
holder of a licence, to conduct an anatomical 9
examination of the body, at licensed premises, in 10
accordance with the authority, subject to the terms or 11
conditions of the licence. 12
[12] Section 11 Transfer of bodies 13
Omit "any person who is in charge of the study and practice of anatomy at 14
any place outside New South Wales" from section 11 (1) (b). 15
Insert instead "any person who is in charge of the conduct of anatomical 16
examinations at any place outside New South Wales". 17
[13] Section 11A 18
Insert after section 11: 19
11A Transfer of human tissue 20
(1) The holder of a licence may transfer human tissue from a body 21
that is in the holder's possession for anatomical examination: 22
(a) to another holder of a licence, or 23
(b) to an authorised officer of a hospital, or 24
(c) to an authorised officer of an interstate hospital, or 25
(d) to any other person approved in writing by the Director- 26
General, subject to such conditions as may be imposed 27
by the Director-General, 28
for use for medical or scientific purposes, unless the holder has 29
reason to believe that to do so would be contrary to the wishes 30
of the deceased or the senior available next of kin of the 31
deceased. 32
Page 8
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Anatomy Act 1977 Schedule 1
(2) The holder of a licence must ensure that arrangements are made 1
for the return of the human tissue to the holder of the licence as 2
soon as practicable and by no later than the end of the period 3
(if any) within which the human tissue is required to be 4
disposed of under section 12. 5
Maximum penalty: 10 penalty units. 6
Note. Section 12 requires a body that is retained for anatomical 7
examination, and any human tissue from that body, to be disposed of 8
within a certain period after the death of the person. Section 12 does not 9
apply if a specific authority has been given to retain the human tissue. 10
(3) The holder of a licence must, immediately after transferring 11
human tissue under subsection (1), enter in the register kept by 12
the holder opposite the particulars relating to the body 13
concerned: 14
(a) the fact that the human tissue was transferred, and 15
(b) the date on which it was transferred, and 16
(c) the name and address of the person to whom it was 17
transferred and of the licensed premises, hospital or 18
other place at which the human tissue is to be retained, 19
and 20
(d) details of the arrangements made with respect to the 21
return of the human tissue. 22
Maximum penalty: 10 penalty units. 23
(4) Subject to subsection (5), the following persons are authorised 24
to use, for medical or scientific purposes, human tissue 25
transferred under this section: 26
(a) the person to whom the tissue was transferred, 27
(b) any person authorised by that person. 28
(5) A person who has possession of human tissue that has been 29
transferred by the holder of a licence under this section must 30
ensure that the human tissue is returned to the possession of the 31
holder of the licence: 32
(a) within the period specified in the arrangements referred 33
to in subsection (2), or 34
Page 9
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 1 Amendment of Anatomy Act 1977
(b) if no period is specified, by the end of the period within 1
which the human tissue must be disposed of under 2
section 12. 3
Maximum penalty: 10 penalty units. 4
(6) Subsections (2) and (5) do not apply in respect of any human 5
tissue: 6
(a) that will be or has been wholly or substantially 7
destroyed as a consequence of its use for medical or 8
scientific purposes, or 9
(b) that is not required to be disposed of by section 12. 10
(7) In this section: 11
authorised officer means an employee or officer of a hospital 12
or interstate hospital who is authorised by the governing body 13
of the hospital to take possession of human tissue on behalf of 14
the hospital. 15
interstate hospital means a public or private hospital of 16
another State or a Territory. 17
[14] Section 12 Disposal of bodies 18
Omit section 12 (1) and (2). Insert instead: 19
(1) The holder of a licence must dispose of any body which is in 20
the holder's possession for anatomical examination (including 21
any human tissue from that body): 22
(a) within 4 years after the death of the deceased person, or 23
(b) in accordance with the terms of an authorisation granted 24
under subsection (2). 25
Maximum penalty: 10 penalty units. 26
(2) An inspector may, by instrument in writing, authorise the 27
following: 28
(a) the retention of a body for anatomical examination for 29
a period specified by the inspector, being a period that 30
does not end more than 8 years after the death of the 31
deceased person, 32
(b) the retention of human tissue from a body (whether for 33
a specified period or otherwise). 34
Page 10
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Anatomy Act 1977 Schedule 1
(2A) An inspector must, in exercising his or her functions under 1
subsection (2): 2
(a) consider the purposes for which retention of the body, 3
or human tissue, is sought, and 4
(b) ensure that any authorisation granted by the inspector 5
complies with the terms and any conditions of the 6
authority under section 8 or 8A that initially authorised 7
the retention of the body for anatomical examination. 8
(2B) The holder of a licence must: 9
(a) comply with any terms or conditions that are imposed 10
by an inspector in granting an authorisation under 11
subsection (2), and 12
(b) enter in the register kept by the holder opposite the 13
particulars relating to the body the fact that the authority 14
has been given and the terms and conditions to which 15
the authority is subject. 16
Maximum penalty: 10 penalty units. 17
[15] Section 12 (5) and (6) 18
Insert after section 12 (4): 19
(5) This section does not require the disposal of human tissue if the 20
permanent retention of the tissue has been expressly authorised: 21
(a) by the consent in writing of the deceased person given 22
during his or her lifetime (except in the case of a 23
deceased child), or 24
(b) by the consent in writing of the senior available next of 25
kin of the deceased person. 26
(6) This section does not require the disposal of any small samples 27
of human tissue that are retained in the form of tissue slides or 28
tissue blocks that enable microscopic examination of the tissue. 29
[16] Section 14 Offences 30
Omit "other than a school of anatomy" from section 14 (1). 31
Insert instead "other than licensed premises". 32
Page 11
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 1 Amendment of Anatomy Act 1977
[17] Section 14 (2)(3B) 1
Omit section 14 (2) and (3) (including the maximum penalties). 2
Insert instead: 3
(2) A person must not conduct an anatomical examination of a 4
body at any place other than licensed premises. 5
Maximum penalty: 10 penalty units. 6
(3) A person must not conduct an anatomical examination of a 7
body unless the person is the holder of a licence or is 8
authorised to do so by the holder of a licence. 9
Maximum penalty: 40 penalty units or imprisonment for 6 10
months, or both. 11
(3A) A person must not conduct an anatomical examination of a 12
body except in accordance with an authority that is, under this 13
Act, sufficient authority for the person to conduct the 14
anatomical examination. 15
Maximum penalty: 40 penalty units or imprisonment for 6 16
months, or both. 17
(3B) A person must not give an authority under this Act without 18
having made the inquiries that the person is required by this 19
Act to have made. 20
Maximum penalty: 40 penalty units or imprisonment for 6 21
months, or both. 22
[18] Section 14 (6) 23
Insert after section 14 (5): 24
(6) Subsections (1)(3A) do not apply to or in respect of anything 25
authorised by or under: 26
(a) the Coroners Act 1980, or 27
(b) the Human Tissue Act 1983, or 28
(c) any other law. 29
Page 12
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Anatomy Act 1977 Schedule 1
[19] Section 15 1
Insert after section 14: 2
15 Authority not to be given in respect of child in care of the State 3
(1) A person must not authorise the anatomical examination of the 4
body of a deceased child if the child was, immediately before 5
his or her death, in the care of the State. 6
Maximum penalty: 40 penalty units or imprisonment for 7
6 months, or both. 8
(2) Subsection (1) applies despite any other provision of this Act. 9
(3) This section does not apply to or in respect of anything done 10
under the Coroners Act 1980 or any other law. 11
(4) For the purposes of this section, a child is in the care of the 12
State if: 13
(a) the Minister administering the Children and Young 14
Persons (Care and Protection) Act 1998 has sole 15
parental responsibility in respect of the child (whether 16
under that Act or otherwise), or 17
(b) the Director-General under the Children and Young 18
Persons (Care and Protection) Act 1998 has sole 19
parental responsibility in respect of the child (whether 20
under that Act or otherwise). 21
[20] Section 16A 22
Insert after section 16: 23
16A General 24
In the conduct of an anatomical examination of a body under 25
an authority conferred by this Act, regard is to be had to the 26
dignity of the deceased person. 27
Page 13
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 1 Amendment of Anatomy Act 1977
[21] Section 17 Regulations 1
Insert at the end of section 17 (2) (c): 2
, and 3
(d) the standards to be complied with in connection with 4
anything authorised by or under this Act, including by 5
requiring those standards to be complied with as a 6
condition of an authority conferred by or under this Act. 7
(2A) The regulations may apply, adopt or incorporate, wholly or in 8
part and with or without modification, any guidelines or other 9
document (such as a code of practice), as in force at a particular 10
time or as in force from time to time, prescribed or published 11
by the National Health and Medical Research Council or by 12
any other person or body. 13
[22] Section 19 14
Omit the section. Insert instead: 15
19 Savings, transitional and other provisions 16
Schedule 2 has effect. 17
[23] Schedule 2 18
Insert after Schedule 1: 19
Schedule 2 Savings, transitional and other 20
provisions 21
(Section 19) 22
Part 1 Preliminary 23
1 Regulations 24
(1) The regulations may contain provisions of a savings or 25
transitional nature consequent on the enactment of the 26
following Acts: 27
Human Tissue and Anatomy Legislation Amendment Act 2002 28
Page 14
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Anatomy Act 1977 Schedule 1
(2) Any such provision may, if the regulations so provide, take 1
effect from the date of assent to the Act concerned or a later 2
date. 3
(3) To the extent to which any such provision takes effect from a 4
date that is earlier than the date of its publication in the Gazette, 5
the provision does not operate so as: 6
(a) to affect, in a manner prejudicial to any person (other 7
than the State or an authority of the State), the rights of 8
that person existing before the date of its publication, or 9
(b) to impose liabilities on any person (other than the State 10
or an authority of the State) in respect of anything done 11
or omitted to be done before the date of its publication. 12
Part 2 Provisions consequent on enactment of 13
Human Tissue and Anatomy Legislation 14
Amendment Act 2002 15
2 Saving of licences 16
A licence issued under section 6 and in force immediately 17
before the commencement of the amendments made to that 18
section by the Human Tissue and Anatomy Legislation 19
Amendment Act 2002 is taken, on the commencement of those 20
amendments, to authorise the conduct of anatomical 21
examinations at the place specified in the licence as the place 22
at which the study and practice of anatomy may be conducted. 23
3 Application of amendments to section 12 24
(1) The amendments made to section 12 by the Human Tissue and 25
Anatomy Legislation Amendment Act 2002 are taken to extend 26
to a body that is in the possession of a holder of a licence for 27
anatomical examination immediately before the 28
commencement of those amendments, including any human 29
tissue from that body. 30
(2) If such a body has been retained for more than 4 years after the 31
death of the person (under an authority granted under former 32
section 12 (2)), new section 12 (1) applies as if a reference in 33
that subsection to the death of the deceased person were a 34
reference to the commencement of new section 12 (1). 35
Page 15
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 1 Amendment of Anatomy Act 1977
(3) In this clause: 1
former section 12 (2) means section 12 (2) as in force 2
immediately before its substitution by the Human Tissue and 3
Anatomy Legislation Amendment Act 2002. 4
new section 12 (1) means section 12 (1) as substituted by the 5
Human Tissue and Anatomy Legislation Amendment Act 2002. 6
[24] Long title 7
Omit "to amend and re-enact the law relating to anatomy". 8
Insert instead "to regulate the conduct of anatomical examinations". 9
Page 16
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
Schedule 2 Amendment of Human Tissue Act 1983 1
(Section 4) 2
[1] Section 4 Definitions 3
Omit the definition of designated officer from section 4 (1). Insert instead: 4
designated officer means: 5
(a) in relation to a hospital, a person appointed for the time 6
being under section 5 (1) (a) to be a designated officer 7
for the hospital, or 8
(b) in relation to a forensic institution, a person appointed 9
for the time being under section 5 (3) to be a designated 10
officer for the forensic institution. 11
[2] Section 4 (1) 12
Insert in alphabetical order: 13
Director-General means the Director-General of the 14
Department of Health. 15
exercise a function includes perform a duty. 16
forensic institution means: 17
(a) an institution that is under the control of a public health 18
organisation (within the meaning of the Health Services 19
Act 1997), or 20
(b) an accredited pathology laboratory under the Health 21
Insurance Act 1973 of the Commonwealth, 22
at which post-mortem examinations of human bodies are 23
carried out, but does not include a hospital. 24
function includes a power, authority or duty. 25
inspector means a person appointed as an inspector under 26
Part 7A. 27
medical, dental or surgical treatment means any medical, 28
dental or surgical treatment carried out by, or under the 29
supervision of, a medical practitioner or dentist with respect to 30
a living person in the interests of the health of the person. 31
Page 17
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 2 Amendment of Human Tissue Act 1983
[3] Section 4 (1), definition of "governing body" 1
Omit the definition. Insert instead: 2
governing body means: 3
(a) in relation to a hospital: 4
(i) in the case of a public hospital that is controlled 5
by a public health organisation within the 6
meaning of the Health Services Act 1997--the 7
public health organisation, or 8
(ii) in the case of a public hospital within the 9
meaning of the Health Services Act 1997 that is 10
controlled by the Crown (including the Minister 11
or the Health Administration Corporation)--the 12
Crown, or 13
(iii) in the case of a private hospital within the 14
meaning of the Private Hospitals and Day 15
Procedure Centres Act 1988--the licensee of 16
the hospital, or 17
(b) in relation to a forensic institution: 18
(i) in the case of a forensic institution that is 19
controlled by a public health organisation within 20
the meaning of the Health Services 21
Act 1997--the public health organisation, or 22
(ii) in the case of an accredited pathology laboratory 23
under the Health Insurance Act 1973 of the 24
Commonwealth--the person in charge of the 25
laboratory (however designated). 26
[4] Section 4 (1), definition of "next of kin" 27
Insert before paragraph (a): 28
(aa) in relation to a child who is living--a person referred to 29
in paragraph (aa) of the definition of senior available 30
next of kin, and 31
Page 18
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
[5] Section 4 (1), definition of "senior available next of kin" 1
Insert before paragraph (a): 2
(aa) in relation to a child who is living: 3
(i) a parent of the child, or 4
(ii) if no person referred to in subparagraph (i) is 5
available--a person who is a guardian of the 6
child, and 7
[6] Section 4 (5) and (6) 8
Insert after section 4 (4): 9
(5) In this Act, a reference to tissue removed from the body of a 10
living person in the course of medical, dental or surgical 11
treatment includes: 12
(a) tissue expelled from the body of the person in the 13
course of the treatment, and 14
(b) all tissue removed or expelled from the body of the 15
person in the course of the treatment, even if the person 16
dies during the course of the treatment. 17
(6) In this Act, a reference to medical or scientific purposes 18
includes educational purposes connected with medicine or 19
science. 20
[7] Section 4A 21
Insert after section 4: 22
4A Notes 23
Notes included in this Act do not form part of this Act. 24
[8] Section 5 Designated officers and designated specialists 25
Insert after section 5 (2): 26
(3) The governing body of a forensic institution may, by instrument 27
in writing, appoint such persons as the governing body 28
considers necessary to be designated officers for the forensic 29
institution. 30
Page 19
Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 2 Amendment of Human Tissue Act 1983
[9] Section 5A 1
Insert after section 5: 2
5A Delegation of functions of next of kin 3
(1) A next of kin of a deceased person may from time to time, by 4
instrument in writing, authorise a person to exercise his or her 5
functions under this Act as a next of kin of the deceased 6
person. 7
(2) In such a case, the person so authorised: 8
(a) may exercise the functions of a next of kin of the 9
deceased person under this Act (other than the function 10
conferred by subsection (1)), in the place of the person 11
who authorised him or her, and 12
(b) is taken, for the purposes of this Act, to be a next of kin 13
of the deceased person, and 14
(c) for the purposes of the definition of senior available 15
next of kin in section 4 (1), is taken to be a next of kin 16
of the same order as the person who authorised him or 17
her to exercise the functions of a next of kin. 18
[10] Section 21F Definitions 19
Omit the definition of inspector from section 21F (2). 20
[11] Sections 21P21T 21
Omit the sections. 22
[12] Part 3C 23
Insert after Part 3B: 24
Part 3C Use of tissue removed during medical, 25
dental or surgical treatment 26
21W Application 27
(1) This Part applies with respect to the use of tissue removed from 28
the body of a living person during medical, dental or surgical 29
Page 20
Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
treatment carried out in the interests of the health of the person. 1
This Part does not authorise the removal of tissue from the 2
body of a person after that person's death or the use of any 3
tissue so removed. 4
Note. See Parts 4 and 5 in relation to the removal of tissue after a 5
person's death and the use of that tissue. 6
(2) This Part does not apply to or in respect of the following: 7
(a) tissue that is removed in accordance with Part 2, 8
(b) blood that is removed in accordance with Part 3 or 3A, 9
(c) semen obtained or received from a donor in accordance 10
with Part 3A. 11
21X Authority to use tissue removed from adult 12
(1) The use, for therapeutic, medical or scientific purposes, of 13
tissue removed from the body of a person during medical, 14
dental or surgical treatment, is authorised if: 15
(a) the person has given his or her consent in writing to the 16
use of the tissue for that purpose, and 17
(b) the consent has not been revoked. 18
(2) The authority conferred by subsection (1) is subject to the 19
terms and any conditions of the consent referred to in that 20
subsection. 21
(3) This section does not apply if the person: 22
(a) is a child, or 23
(b) is a patient to whom Part 5 of the Guardianship 24
Act 1987 applies. 25
21Y Authority to use tissue removed from child 26
(1) A senior available next of kin of a child may, by instrument in 27
writing, authorise the use, for therapeutic, medical or scientific 28
purposes, of any tissue removed from the body of the child 29
during medical, dental or surgical treatment. 30
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Schedule 2 Amendment of Human Tissue Act 1983
(2) A senior available next of kin must not grant an authority under 1
subsection (1) if it appears to the senior available next of kin, 2
after making such inquiries as are reasonable in the 3
circumstances, that: 4
(a) the child objects to the use of the tissue for the purposes 5
to be authorised, or 6
(b) there is another next of kin of the same or higher order 7
of the classes in paragraph (aa) of the definition of 8
senior available next of kin in section 4 (1) who 9
objects to the use of the tissue for the purposes to be 10
authorised. 11
Maximum penalty: 10 penalty units. 12
(3) This section does not apply if the child is deceased. 13
Note. Section 21ZA may apply if the child is deceased. 14
21Z Authority to use tissue removed from person under guardianship 15
(1) A person responsible for a person who is a patient to whom 16
Part 5 of the Guardianship Act 1987 applies may, by 17
instrument in writing, authorise the use, for therapeutic, medical 18
or scientific purposes, of any tissue removed from the body of 19
the patient during medical, dental or surgical treatment. 20
(2) This section does not apply if: 21
(a) the patient is a child and the Minister administering the 22
Children and Young Persons (Care and Protection) 23
Act 1998 has sole parental responsibility in respect of 24
the child (whether under that Act or otherwise), or 25
(b) the patient is a child and the Director-General under the 26
Children and Young Persons (Care and Protection) 27
Act 1998 has sole parental responsibility in respect of 28
the child (whether under that Act or otherwise), or 29
(c) the patient (whether or not a child) is deceased. 30
(3) In this section: 31
person responsible for a person has the meaning given by 32
Part 5 of the Guardianship Act 1987. 33
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Amendment of Human Tissue Act 1983 Schedule 2
21ZA Authority to use tissue removed from deceased person 1
(1) A senior available next of kin of a person who is deceased may, 2
by instrument in writing, authorise the use, for therapeutic, 3
medical or scientific purposes, of any tissue that was removed 4
from the body of the deceased person, before that person's 5
death, during medical, dental or surgical treatment. 6
(2) A senior available next of kin must not grant an authority under 7
subsection (1) if it appears to the senior available next of kin, 8
after making such inquiries as are reasonable in the 9
circumstances, that: 10
(a) the deceased person had, during the person's lifetime, 11
expressed an objection to the use of tissue removed 12
from the person's body for the purposes to be 13
authorised and had not withdrawn that objection, or 14
(b) there is another next of kin of the same or higher order 15
of the classes in paragraph (a) or (b) of the definition of 16
senior available next of kin in section 4 (1) who 17
objects to the use of the tissue for the purposes to be 18
authorised. 19
Maximum penalty: 10 penalty units. 20
21ZB Effect of authority under this Part 21
(1) An authority under this Part is sufficient authority for the use, 22
for therapeutic, medical or scientific purposes, of tissue 23
removed from the body of a person during medical, dental or 24
surgical treatment, if the tissue is used in accordance with the 25
terms and any conditions of the authority. 26
(2) An authority under this Part does not authorise the removal of 27
tissue from the body of a person. 28
Note. Parts 2, 3 and 3A provide authority to remove tissue (including blood 29
and semen) from the body of a living person for purposes such as 30
transplantation and transfusion, and other therapeutic, scientific, and 31
medical purposes. Parts 4 and 5 provide authority to remove tissue from 32
the body of a person who is deceased. In certain cases, an authority under 33
this Act to remove tissue is not required (see section 34 (1) (a)). 34
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Schedule 2 Amendment of Human Tissue Act 1983
[13] Sections 23 and 24 1
Omit the sections. Insert instead: 2
23 Authority to remove tissue where body of deceased at a hospital 3
(1) If a designated officer for a hospital is satisfied, after making 4
such inquiries as are reasonable in the circumstances in relation 5
to a person who has died in the hospital or whose dead body 6
has been brought into the hospital, that: 7
(a) the person had, during the person's lifetime, given his or 8
her consent in writing to the removal after that person's 9
death of tissue from that person's body for the purpose 10
of: 11
(i) its transplantation to the body of a living person, 12
or 13
(ii) its use for other therapeutic purposes or for 14
medical purposes or scientific purposes, and 15
(b) the consent had not been revoked, 16
the designated officer may, by instrument in writing, authorise 17
the removal of tissue from that person's body in accordance 18
with the terms and any conditions of the consent. 19
(2) An authority under subsection (1) is not to be given in respect 20
of a deceased child. 21
(3) If the designated officer is not satisfied as to the matters 22
referred to in subsection (1), or the deceased person is a 23
deceased child, and the designated officer is satisfied, after 24
making such inquiries as are reasonable in the circumstances in 25
relation to the deceased person, that: 26
(a) the deceased person had not, during the person's 27
lifetime, expressed an objection to the removal of tissue 28
from the person's body, and 29
(b) a senior available next of kin has given his or her 30
consent in writing to the removal of tissue from the 31
person's body, and 32
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Amendment of Human Tissue Act 1983 Schedule 2
(c) there is no next of kin of the same or a higher order of 1
the classes in paragraph (a) or (b) of the definition of 2
senior available next of kin in section 4 (1) who 3
objects to the removal of tissue from the person's body, 4
the designated officer may, by instrument in writing, authorise 5
the removal of tissue from the deceased person's body in 6
accordance with the terms and any conditions of the consent 7
referred to in paragraph (b). 8
24 Authority to remove tissue where body of deceased not at a 9
hospital 10
(1) If the body of a deceased person (other than a deceased child) 11
is at a place other than a hospital, the removal of tissue from 12
the body of the deceased person for the purpose of its 13
transplantation to the body of a living person, or its use for 14
other therapeutic purposes or for medical purposes or scientific 15
purposes, is authorised if: 16
(a) the deceased person had, during the person's lifetime, 17
given his or her consent in writing to the removal of 18
tissue from the person's body for that purpose, and 19
(b) the consent had not been revoked. 20
(2) The authority conferred by subsection (1) is subject to the terms 21
and any conditions of the consent referred to in that subsection. 22
(3) If the body of a deceased person is at a place other than a 23
hospital, a senior available next of kin of the person may, by 24
instrument in writing, authorise the removal of tissue from the 25
deceased person's body for the purpose of its transplantation to 26
the body of a living person, or its use for other therapeutic 27
purposes or for medical purposes or scientific purposes. 28
(4) A senior available next of kin must not grant an authority under 29
subsection (3) if it appears to the senior available next of kin, 30
after making such inquiries as are reasonable in the 31
circumstances, that: 32
(a) the deceased person had, during the person's lifetime, 33
expressed an objection to the removal of tissue from the 34
person's body and had not withdrawn that objection, or 35
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Schedule 2 Amendment of Human Tissue Act 1983
(b) another next of kin of the same or higher order of the 1
classes in paragraph (a) or (b) of the definition of senior 2
available next of kin in section 4 (1) objects to the 3
removal of tissue from the person's body. 4
Maximum penalty: 10 penalty units. 5
[14] Section 27 Effect of authority under this Part 6
Insert after section 27 (2): 7
(3) An authority under this Part does not authorise the use, for 8
therapeutic, medical or scientific purposes, of any tissue 9
removed from the body of a deceased person: 10
(a) in the course of the medical, dental or surgical treatment 11
performed while the person was still living, or 12
(b) for the purposes of a post-mortem examination. 13
Note. An authority under Part 3C may be given to authorise the use, for 14
therapeutic, medical or scientific purposes, of any tissue removed in the 15
course of medical, dental or surgical treatment while the person was still 16
living. An authority under Division 2 of Part 5 may be given to authorise the 17
use, for therapeutic, medical or scientific purposes, of any tissue removed 18
for the purposes of a post-mortem examination. 19
[15] Part 5, Division 1, heading 20
Insert before section 28: 21
Division 1 Authority to conduct post-mortem 22
examinations 23
[16] Sections 28 and 29 24
Omit the sections. Insert instead: 25
28 Authority for post-mortem examination where body of deceased 26
at a hospital 27
(1) If a designated officer for a hospital is satisfied, after making 28
such inquiries as are reasonable in the circumstances in relation 29
to a person who has died in the hospital or whose dead body 30
has been brought into the hospital, that: 31
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Amendment of Human Tissue Act 1983 Schedule 2
(a) the person had, during the person's lifetime, given his or 1
her consent in writing to the post-mortem examination 2
of that person's body, and 3
(b) the consent had not been revoked, 4
the designated officer may, by instrument in writing, authorise 5
the post-mortem examination of that person's body in 6
accordance with the terms and any conditions of the consent. 7
(2) An authority under subsection (1) is not to be given in respect 8
of a deceased child. 9
(3) If the designated officer is not satisfied as to the matters 10
referred to in subsection (1), or the deceased person is a 11
deceased child, and the designated officer is satisfied, after 12
making such inquiries as are reasonable in the circumstances in 13
relation to the deceased person, that: 14
(a) the deceased person had not, during the person's 15
lifetime, expressed an objection to the post-mortem 16
examination of the person's body, and 17
(b) a senior available next of kin has given his or her 18
consent in writing to the post-mortem examination of 19
the person's body, and 20
(c) there is no next of kin of the same or a higher order of 21
the classes in paragraph (a) or (b) of the definition of 22
senior available next of kin in section 4 (1) who 23
objects to the post-mortem examination of the person's 24
body, 25
the designated officer may, by instrument in writing, authorise 26
the post-mortem examination of the person's body in 27
accordance with the terms and any conditions of the consent 28
referred to in paragraph (b). 29
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Schedule 2 Amendment of Human Tissue Act 1983
29 Authority for post-mortem examination where body of deceased 1
not at a hospital 2
(1) If the body of a deceased person (other than a deceased child) 3
is at a place other than a hospital, the post-mortem 4
examination of that person's body is authorised if: 5
(a) the deceased person had, during the person's lifetime, 6
given his or her consent in writing to the post-mortem 7
examination of the person's body after the person's 8
death, and 9
(b) the consent had not been revoked. 10
(2) The authority conferred by subsection (1) is subject to the terms 11
and any conditions of the consent referred to in that subsection. 12
(3) If the body of a deceased person is at a place other than a 13
hospital, a senior available next of kin of the person may, by 14
instrument in writing, authorise the post-mortem examination 15
of the person's body. 16
(4) A senior available next of kin must not grant an authority under 17
subsection (3) if it appears to the senior available next of kin, 18
after making such inquiries as are reasonable in the 19
circumstances, that: 20
(a) the deceased person had, during the person's lifetime, 21
expressed an objection to the post-mortem examination 22
of the person's body and had not withdrawn that 23
objection, or 24
(b) another next of kin of the same or higher order of the 25
classes in paragraph (a) or (b) of the definition of senior 26
available next of kin in section 4 (1) objects to the post- 27
mortem examination of the person's body. 28
Maximum penalty: 10 penalty units. 29
[17] Section 31 Effect of authority under this Division 30
Omit "this Part" from section 31 (1). Insert instead "this Division". 31
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Amendment of Human Tissue Act 1983 Schedule 2
[18] Section 31 (2) and (3) 1
Omit the subsections. Insert instead: 2
(2) An authority under this Division does not authorise any person 3
to use any tissue removed from a person's body for any 4
therapeutic, medical or scientific purposes other than the 5
purposes of the post-mortem examination. 6
Note. An authority under this Division is not required in respect of 7
anything authorised by or under the Coroners Act 1980 (see section 36 (4) 8
of this Act). An authority under Division 2 of Part 5 may be given to 9
authorise the use, for therapeutic, medical or scientific purposes, of any 10
tissue removed for the purposes of a post-mortem examination. An 11
authority to use, for therapeutic, medical or scientific purposes, tissue 12
removed for the purposes of a post-mortem examination is not required in 13
respect of small samples of tissue that are retained in the form of tissue 14
slides or tissue blocks (see section 34). 15
[19] Part 5, Divisions 2 and 3 16
Insert after section 31: 17
Division 2 Use of tissue removed for post-mortem 18
examination for other purposes 19
31A Authority to use tissue removed for post-mortem examination for 20
other purposes 21
(1) If a designated officer for a hospital or forensic institution is 22
satisfied, after making such inquiries as are reasonable in the 23
circumstances in relation to a deceased person whose body is 24
being retained at a hospital or forensic institution for the 25
purposes of a post-mortem examination or has been the subject 26
of a post-mortem examination at a hospital or forensic 27
institution, that: 28
(a) the person had, during the person's lifetime, given his or 29
her consent in writing to the use after the person's death 30
of tissue from the person's body for therapeutic, medical 31
or scientific purposes, and 32
(b) the consent had not been revoked, 33
the designated officer may, by instrument in writing, authorise 34
the use for therapeutic, medical or scientific purposes of any 35
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Schedule 2 Amendment of Human Tissue Act 1983
tissue removed from the body of the deceased person for the 1
purposes of the post-mortem examination in accordance with 2
the terms and any conditions of the consent. 3
(2) An authority under subsection (1) is not to be given in respect 4
of a deceased child. 5
(3) If the designated officer is not satisfied as to the matters 6
referred to in subsection (1), or the deceased person is a 7
deceased child, and the designated officer is satisfied, after 8
making such inquiries as are reasonable in the circumstances in 9
relation to the deceased person, that: 10
(a) the deceased person had not, during the person's 11
lifetime, expressed an objection to the use after the 12
person's death of tissue from the person's body for 13
therapeutic, medical or scientific purposes, and 14
(b) a senior available next of kin has given his or her 15
consent in writing to the use of tissue from the body of 16
the deceased person for therapeutic, medical or scientific 17
purposes, and 18
(c) there is no next of kin of the same or a higher order of 19
the classes in paragraph (a) or (b) of the definition of 20
senior available next of kin in section 4 (1) who 21
objects to the use of tissue for those purposes, 22
the designated officer may, by instrument in writing, authorise 23
the use for therapeutic, medical or scientific purposes of any 24
tissue removed from the body of the deceased person for the 25
purposes of the post-mortem examination in accordance with 26
the terms of the consent referred to in paragraph (b). 27
31B Consent by coroner 28
(1) If a coroner has jurisdiction to hold an inquest under the 29
Coroners Act 1980 in respect of the death of a person, a 30
designated officer for a hospital or forensic institution must not 31
authorise the use of any tissue removed from the person's body 32
under section 31A unless a coroner has given consent to the 33
use of the tissue. 34
Maximum penalty: 40 penalty units or imprisonment for 6 35
months, or both. 36
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Amendment of Human Tissue Act 1983 Schedule 2
(2) A consent by a coroner under this section may be expressed to 1
be subject to such conditions as are specified in the consent. 2
(3) The designated officer is to ensure that an authority given under 3
section 31A gives effect to any such conditions. 4
(4) A consent by a coroner under this section may be given orally 5
and, if so given, is to be confirmed in writing as soon as 6
practicable. 7
31C Effect of authority under this Division 8
An authority given by a designated officer under this Division 9
is sufficient authority for a person to use, for therapeutic, 10
medical or scientific purposes, tissue removed from the body of 11
a deceased person for the purposes of a post-mortem 12
examination if: 13
(a) the tissue is used in accordance with the terms and any 14
conditions of the authority, and 15
(b) the person who uses the tissue is not the designated 16
officer who gave the authority. 17
Note. An authority under this Division is not required in respect of 18
anything authorised by or under the Coroners Act 1980 (see section 36 (4) 19
of this Act). 20
Division 3 General 21
31D General 22
In the conduct of a post-mortem examination under an 23
authority conferred by this Act, regard is to be had to the 24
dignity of the deceased person. 25
[20] Section 32 Trading in tissue prohibited 26
Omit "A person shall not enter into a contract or arrangement" from 27
section 32 (1). 28
Insert instead "A person must not enter into, or offer to enter into, a contract 29
or arrangement". 30
[21] Section 32 (2) 31
Omit ", in accordance with the directions of a medical practitioner,". 32
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 2 Amendment of Human Tissue Act 1983
[22] Part 7A 1
Insert after Part 7: 2
Part 7A Enforcement 3
33A Appointment of inspectors 4
(1) The Director-General may appoint any officer of the 5
Department of Health, or any person who the Director-General 6
considers is suitably qualified for the purpose, to be an 7
inspector for the purposes of this Act. 8
(2) On appointing an inspector under subsection (1), the Director- 9
General must issue to the inspector a certificate of authority 10
that authorises the inspector to exercise the powers conferred 11
on an inspector by this Act. 12
(3) A certificate of authority must: 13
(a) state that it is issued under the Human Tissue Act 1983, 14
and 15
(b) give the name of the person to whom it is issued, and 16
(c) state the date, if any, on which it expires, and 17
(d) describe the nature of the powers conferred and the 18
source of the powers. 19
33B Powers of inspectors 20
(1) An inspector may at any reasonable time enter and inspect any 21
premises for the purpose of ascertaining whether or not a 22
provision of this Act, or any regulation made under this Act, is 23
being or has been complied with or contravened. 24
(2) While on premises entered under this section or under the 25
authority of a search warrant under section 33G, an inspector 26
may do one or more of the following: 27
(a) inspect: 28
(i) all tissue and blood products kept on those 29
premises, or anything the inspector reasonably 30
believes to be tissue or blood products, and 31
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Amendment of Human Tissue Act 1983 Schedule 2
(ii) all containers that the inspector reasonably 1
believes to contain or to have contained tissue or 2
blood products, and 3
(iii) all equipment kept on the premises that the 4
inspector reasonably believes to be or to have 5
been used for processing, packing or storing 6
tissue or blood products, 7
(b) take and remove for analysis or testing a sample of any 8
tissue or blood product kept on the premises, or 9
anything the inspector reasonably believes to be tissue 10
or blood products, 11
(c) inspect any records kept on those premises and require 12
any person whom the inspector reasonably believes to 13
have custody or control of those records to produce 14
them for inspection, 15
(d) require any person on those premises to answer 16
questions or otherwise furnish information in relation to 17
a contravention of a provision of this Act or the 18
regulations, 19
(e) make and take away copies of the whole or any part of 20
any records or other information, 21
(f) take away and retain, for such period as may be 22
reasonably necessary, any records or other information, 23
or any part of them, in order to make copies of them, 24
(g) take away and retain any records or other information, 25
if the inspector concerned reasonably believes that the 26
records or information are evidence of an offence 27
against this Act or a regulation made under this Act, 28
until proceedings for the offence have been disposed of, 29
(h) seize and detain: 30
(i) any tissue or blood product, or anything the 31
inspector reasonably believes to be tissue or a 32
blood product, in relation to which the inspector 33
reasonably believes an offence against this Act 34
or against a regulation under this Act is being or 35
has been committed, and 36
(ii) any container in which any such tissue or blood 37
product, or other thing, is kept, and 38
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 2 Amendment of Human Tissue Act 1983
(iii) any equipment which the inspector reasonably 1
believes is being or has been used in connection 2
with any such offence, 3
(i) place anything seized as referred to in paragraph (h) in 4
a container, or in a room, compartment or cabinet 5
located on the premises where they were seized, and 6
mark, fasten and seal that container or, as the case may 7
be, the door or opening providing access to that room, 8
compartment or cabinet, 9
(j) take such photographs, films, audio, video and other 10
recordings as the inspector considers necessary. 11
(3) Any thing seized under this section may, at the option of the 12
inspector who made the seizure or another inspector acting in 13
place of that inspector, be detained on the premises where it 14
was found or be removed to other premises and detained there. 15
(4) Before taking away a record or statement or any thing seized 16
under this section, an inspector must tender an appropriate 17
receipt to the person from whom it is taken. 18
(5) This section does not authorise an inspector to enter any part of 19
premises that is being used for residential purposes except: 20
(a) with the consent of the occupier, or 21
(b) under the authority of a search warrant. 22
(6) An inspector must, when exercising on any premises any 23
function of an inspector under this section, produce the 24
inspector's certificate of authority if required to do so by the 25
occupier of the premises. 26
33C Provisions relating to exercise of powers 27
(1) A power conferred by this Act to enter premises, or to make an 28
inspection or take other action on premises, may not be 29
exercised unless the inspector proposing to exercise the power: 30
(a) is in possession of a certificate of authority, and 31
(b) gives reasonable notice to the occupier of the premises 32
of the intention to exercise the power, unless the giving 33
of notice would defeat the purpose for which it is 34
intended to exercise the power, and 35
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
(c) exercises the power at a reasonable time, unless it is 1
being exercised in an emergency, and 2
(d) uses no more force than is reasonably necessary to effect 3
the entry or make the inspection. 4
(2) If damage is caused by an inspector exercising a power to enter 5
premises, a reasonable amount of compensation is recoverable 6
as a debt owed by the Crown to the owner of the premises 7
unless the occupier obstructed the exercise of the power. 8
(3) This section does not apply to a power conferred by a search 9
warrant issued under the Search Warrants Act 1985. 10
33D Requirement to provide information and records 11
(1) An inspector may, by notice in writing given to a person, 12
require the person to furnish to the inspector such information 13
or records (or both) as the inspector requires by the notice, 14
being information that relates to the question of whether or not 15
a provision of this Act, or any regulation made under this Act, 16
is being or has been complied with or contravened. 17
(2) A notice under this section: 18
(a) must specify the manner in which information or 19
records are required to be furnished and a reasonable 20
time by which the information or records are required to 21
be furnished, and 22
(b) may only require a person to furnish existing records 23
that are in the person's possession or that are within the 24
person's power to obtain lawfully. 25
(3) The inspector to whom any record is furnished under this Part 26
may take copies of it. 27
(4) If any record required to be furnished under this Part is in 28
electronic, mechanical or other form, the notice requires the 29
record to be furnished in written form, unless the notice 30
otherwise provides. 31
(5) This section applies whether or not a power of entry under this 32
Act is being or has been exercised. 33
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33E Power of inspectors to require answers 1
(1) An inspector may require a person whom the inspector suspects 2
on reasonable grounds to have knowledge of matters in respect 3
of which information is reasonably required for the purposes of 4
this Act to answer questions in relation to those matters. 5
(2) An inspector may, by notice in writing, require a corporation to 6
nominate, in writing within the time specified in the notice, a 7
director or officer of the corporation to be the corporation's 8
representative for the purpose of answering questions under this 9
section. 10
(3) Answers given by a person nominated under subsection (2) 11
bind the corporation. 12
33F Power to demand name and address 13
An inspector may require a person whom the inspector suspects 14
on reasonable grounds to have contravened or to be 15
contravening this Act or the regulations to state his or her full 16
name and residential address. 17
33G Search warrants 18
(1) An inspector may apply to an authorised justice for a search 19
warrant for premises if the inspector believes on reasonable 20
grounds: 21
(a) that a provision of this Act or the regulations is being or 22
has been contravened on the premises, or 23
(b) that there is on the premises evidence of a 24
contravention of a provision of this Act or the 25
regulations. 26
(2) An authorised justice to whom such an application is made 27
may, if satisfied that there are reasonable grounds for doing so, 28
issue a search warrant authorising an inspector named in the 29
warrant: 30
(a) to enter and inspect any premises, and 31
(b) to exercise the powers, or any specified powers, of an 32
inspector under this Part. 33
(3) Part 3 of the Search Warrants Act 1985 applies to a search 34
warrant issued under this section. 35
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
(4) In this section: 1
authorised justice has the meaning it has in the Search 2
Warrants Act 1985. 3
33H Offences 4
(1) A person who, without lawful excuse, neglects or fails to 5
comply with a requirement made of the person by an inspector 6
under this Act is guilty of an offence. 7
(2) A person who furnishes any information or does any other 8
thing in purported compliance with a requirement made by an 9
inspector under this Act, knowing that it is false or misleading 10
in a material respect, is guilty of an offence. 11
(3) A person who hinders or obstructs an inspector in the exercise 12
of any of the powers conferred by this Act is guilty of an 13
offence. 14
(4) A person is not guilty of an offence of failing to comply with 15
a requirement made by an inspector unless it is established by 16
the prosecutor that the inspector concerned warned the person 17
that a failure or refusal to comply with the requirement was an 18
offence. 19
(5) A person is not guilty of an offence of hindering or obstructing 20
an inspector in the exercise of the inspector's powers at any 21
premises unless it is established by the prosecutor that: 22
(a) the inspector concerned produced at the relevant time 23
the certificate of authority issued to the inspector under 24
this Part, and 25
(b) the person was informed by the inspector concerned, or 26
otherwise knew, that the inspector was empowered to 27
exercise the power to which the offence relates. 28
Maximum penalty: 10 penalty units or imprisonment for 29
3 months, or both. 30
33I Disallowance of seizure 31
(1) Any person claiming to be entitled to any seized item may, 32
within 10 days after the date on which the seizure took place, 33
make an application to the District Court for an order 34
disallowing the seizure. 35
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 2 Amendment of Human Tissue Act 1983
(2) An application made under subsection (1) must not be heard 1
unless the applicant has previously served a copy of the 2
application on the Director-General. 3
(3) The Director-General is entitled to appear as respondent at the 4
hearing of an application made under subsection (1). 5
(4) The District Court must, on the hearing of an application made 6
under subsection (1), make an order disallowing the seizure: 7
(a) if it is proved by or on behalf of the applicant that the 8
applicant would, but for the seizure, be entitled to the 9
seized item and if it is not proved by or on behalf of the 10
respondent beyond all reasonable doubt that an offence 11
was being or had been at the time of the seizure, 12
committed in relation to the seized item, or 13
(b) if, in the opinion of the Court, there are exceptional 14
circumstances justifying the making of an order 15
disallowing the seizure. 16
(5) In any other case, the District Court must refuse the 17
application. 18
(6) If on the hearing of an application made under subsection (1) 19
it appears to the District Court that the seized item that is the 20
subject of the application is required to be produced in 21
evidence in any pending proceedings in connection with an 22
offence against this Act or the regulations, the Court may, 23
either on the application of the respondent or on its own 24
motion, adjourn the hearing until the conclusion of those 25
proceedings. 26
(7) If the District Court makes an order under subsection (4) 27
disallowing the seizure of any seized item, the Court must also 28
make one or both of the following orders: 29
(a) an order directing the respondent to cause the seized 30
item to be delivered to the applicant or to such other 31
person as appears to the Court to be entitled to it, 32
(b) if the seized item cannot for any reason be so delivered 33
or has in consequence of the seizure depreciated in 34
value, an order directing the Director-General to pay to 35
the applicant such amount by way of compensation as 36
the Court considers to be just and reasonable. 37
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
(8) The award of costs with respect to the hearing of an application 1
made under subsection (1) is at the discretion of the District 2
Court. 3
(9) If the District Court makes an order for the payment of any 4
amount as compensation under subsection (7) (b) or awards 5
any amount as costs under subsection (8), that order is 6
enforceable as a judgment of the Court. 7
(10) In this section: 8
seized item means anything seized by an inspector under 9
section 33B (2) (h). 10
33J Disposal of seized items 11
(1) If: 12
(a) no application for disallowance of the seizure of a 13
seized item has been made within the period allowed by 14
section 33I (1), or 15
(b) any such application has been made within that period 16
and the application has been refused or withdrawn 17
before a decision in respect of the application has been 18
made, 19
the seized item is forfeited to the Crown and may be destroyed 20
or disposed of in such manner as the Director-General directs. 21
(2) Subsection (1) does not apply in respect of any seized item that 22
has been disposed of or destroyed as referred to in 23
subsection (3) or (7). 24
(3) If the Director-General is satisfied that there has been no failure 25
to comply with or contravention of this Act or the regulations 26
in relation to any seized item, the Director-General must 27
immediately cause the seized item to be delivered to such 28
person as appears to the Director-General to be entitled to it. 29
(4) Subsection (3) does not apply in respect of any seized item that 30
has been forfeited or destroyed as referred to in subsection (1) 31
or (7). 32
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 2 Amendment of Human Tissue Act 1983
(5) If: 1
(a) any seized item is forfeited to the Crown under this 2
section because no application for disallowance of the 3
seizure was made within the period allowed by section 4
33I (1), and 5
(b) the Director-General is satisfied that there has been no 6
failure to comply with or contravention of this Act or 7
the regulations in relation to the seized item, and 8
(c) the seized item has not been disposed of or destroyed in 9
a manner that would prevent it from being dealt with in 10
accordance with this subsection, 11
the Director-General must immediately cause the seized item to 12
be delivered to such person as appears to the Director-General 13
to be the person who would, but for the forfeiture, have been 14
entitled to it. 15
(6) If any seized item is delivered to a person in accordance with 16
subsection (5), such proprietary and other interests as existed 17
immediately before the forfeiture are revived. 18
(7) If an inspector who has seized any tissue or blood product 19
under section 33B (2) (h) is satisfied on reasonable grounds 20
that the tissue or blood product contains a prescribed 21
contaminant, and the tissue or blood product is not required or 22
is no longer required to be retained for the purposes of any 23
legal proceedings, the inspector is to cause the tissue or blood 24
product to be destroyed. 25
(8) In this section: 26
seized item means anything seized by an inspector under 27
section 33B (2) (h). 28
[23] Section 34 Act does not prevent specified removals of tissue etc 29
Omit "medical or surgical treatment" from section 34 (1) (a). 30
Insert instead "medical, dental or surgical treatment". 31
[24] Section 34 (1) (b) 32
Omit section 34 (1) (b). Insert instead: 33
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
(b) the use of tissue so removed for the purposes of the 1
medical, dental or surgical treatment, 2
[25] Section 34 (1) (b1) and (b2) 3
Insert after section 34 (1) (b): 4
(b1) the use, for therapeutic, medical or scientific purposes, 5
of small samples of any tissue that is lawfully removed 6
from the body of a person (whether living or deceased) 7
and retained in the form of a tissue slide or tissue block 8
which enables microscopic examination of the tissue, 9
(b2) the retention of tissue lawfully removed from the body 10
of a person (whether living or deceased) in prescribed 11
circumstances for such period as the regulations 12
authorise for the purpose of obtaining an authority under 13
this Act to use the tissue for therapeutic, medical or 14
scientific purposes, 15
[26] Section 34A 16
Insert after section 34: 17
34A Authority not to be given in respect of child in care of the State 18
(1) A person must not: 19
(a) authorise the removal of tissue from the body of a 20
deceased child for any purpose if the child was, 21
immediately before his or her death, in the care of the 22
State, or 23
(b) authorise the post-mortem examination of the body of 24
a deceased child if the child was, immediately before his 25
or her death, in the care of the State, 26
(c) authorise the use of tissue removed during the post- 27
mortem examination of the body of a deceased child for 28
any purpose (other than the purposes of the post-mortem 29
examination) if the child was, immediately before his or 30
her death, in the care of the State. 31
Maximum penalty: 40 penalty units or imprisonment for 32
6 months, or both. 33
(2) Subsection (1) applies despite any other provision of this Act. 34
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 2 Amendment of Human Tissue Act 1983
(3) This section does not apply to or in respect of anything done 1
under the Coroners Act 1980 or any other law. 2
(4) For the purposes of this section, a child is in the care of the 3
State if: 4
(a) the Minister administering the Children and Young 5
Persons (Care and Protection) Act 1998 has sole 6
parental responsibility in respect of the child (whether 7
under that Act or otherwise), or 8
(b) the Director-General under the Children and Young 9
Persons (Care and Protection) Act 1998 has sole 10
parental responsibility in respect of the child (whether 11
under that Act or otherwise). 12
[27] Section 36 Offences 13
Insert after section 36 (1): 14
(1A) A person must not use any tissue that is removed from the body 15
of a living person in the course of medical, dental or surgical 16
treatment carried out in the interests of the health of the person 17
for any purpose (other than for the purposes of treating the 18
person) except in accordance with an authority that is, under 19
this Act, sufficient authority for the firstmentioned person to 20
use the tissue for that purpose. 21
Maximum penalty: 40 penalty units or imprisonment for 6 22
months, or both. 23
[28] Section 36 (2A) 24
Insert after section 36 (2): 25
(2A) A person must not use any tissue that is removed from the body 26
of a deceased person for the purposes of a post-mortem 27
examination for any purpose (other than the purposes of that 28
examination) except in accordance with an authority that is, 29
under this Act, sufficient authority for the firstmentioned person 30
to use the tissue for that purpose. 31
Maximum penalty: 40 penalty units or imprisonment for 6 32
months, or both. 33
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
[29] Section 36 (4) 1
Omit section 36 (4). Insert instead: 2
(4) Subsections (1), (2) and (2A) do not apply to or in respect of 3
anything authorised by or under: 4
(a) the Coroners Act 1980, or 5
(b) the Anatomy Act 1977, or 6
(c) any other law. 7
[30] Section 39 Regulations 8
Insert after section 39 (1): 9
(1A) In particular, the regulations may make provision for or with 10
respect to the following: 11
(a) the making and keeping of records in connection with 12
the removal of tissue from the body of a person 13
(whether living or deceased), including the removal of 14
tissue in the course of medical, dental or surgical 15
treatment, and the retention or use of the tissue for any 16
purposes, 17
(b) the making and keeping of records in connection with 18
the use of any deceased person's body for any 19
therapeutic, medical or scientific purposes under an 20
authority under this Act, 21
(c) the information to be provided to the Director-General 22
of the Department of Health, or to any other specified 23
person concerned in the administration of this Act, 24
about any removal, retention or use of tissue from the 25
body of a person, or any use of a deceased person's 26
body for any therapeutic, medical or scientific purposes 27
under an authority under this Act, 28
(d) the standards to be complied with in connection with 29
anything authorised by this Act, including by requiring 30
those standards to be complied with as a condition of an 31
authority conferred by or under this Act. 32
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 2 Amendment of Human Tissue Act 1983
[31] Section 39 (4) 1
Insert after section 39 (3): 2
(4) The regulations may apply, adopt or incorporate, wholly or in 3
part and with or without modification, any guidelines or other 4
document (such as a code of practice), as in force at a particular 5
time or as in force from time to time, prescribed or published 6
by the National Health and Medical Research Council or by 7
any other person or body. 8
[32] Section 40 and Schedule 1 9
Insert after section 39: 10
40 Savings, transitional and other provisions 11
Schedule 1 has effect. 12
Schedule 1 Savings, transitional and other 13
provisions 14
(Section 40) 15
Part 1 Preliminary 16
1 Regulations 17
(1) The regulations may contain provisions of a savings or 18
transitional nature consequent on the enactment of the 19
following Acts: 20
Human Tissue and Anatomy Legislation Amendment Act 2002 21
(2) Any such provision may, if the regulations so provide, take 22
effect from the date of assent to the Act concerned or a later 23
date. 24
(3) To the extent to which any such provision takes effect from a 25
date that is earlier than the date of its publication in the Gazette, 26
the provision does not operate so as: 27
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of Human Tissue Act 1983 Schedule 2
(a) to affect, in a manner prejudicial to any person (other 1
than the State or an authority of the State), the rights of 2
that person existing before the date of its publication, or 3
(b) to impose liabilities on any person (other than the State 4
or an authority of the State) in respect of anything done 5
or omitted to be done before the date of its publication. 6
Part 2 Provisions consequent on enactment of 7
Human Tissue and Anatomy Legislation 8
Amendment Act 2002 9
2 Appointment of inspectors 10
An inspector appointed under section 21P before its repeal by 11
the Human Tissue and Anatomy Legislation Amendment 12
Act 2002 and whose appointment was in force under that 13
section immediately before that repeal is taken to have been 14
appointed under section 33A. 15
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 3 Amendment of other Acts
Schedule 3 Amendment of other Acts 1
(Section 5) 2
3.1 Coroners Act 1980 No 27 3
[1] Section 48 Post mortem or other examination may be ordered by 4
coroner 5
Insert after section 48 (1): 6
(1A) The purpose of the post mortem examination, or other 7
examination or test, is to assist in the investigation of any of the 8
following matters, subject to any limitations specified in the 9
coroner's order: 10
(a) the identity of the deceased person, 11
(b) the date and place of death of the deceased person, 12
(c) the manner or cause of death of the deceased person. 13
[2] Section 48A Objection to post mortem examination by senior next of kin 14
Insert after section 48A (8): 15
(9) A senior next of kin of a deceased person may, by instrument 16
in writing, authorise another person to exercise his or her 17
functions as senior next of kin under this section. 18
(10) In such a case, the person so authorised: 19
(a) may make a request referred to in subsection (1) if a 20
copy of his or her authority to exercise the functions of 21
the senior next of kin is provided to the coroner or 22
assistant coroner concerned with that request, and 23
(b) is taken, for the purposes of this section (other than 24
subsection (9)), to be the senior next of kin of the 25
deceased person. 26
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Amendment of other Acts Schedule 3
[3] Section 48AA 1
Insert after section 48A: 2
48AA Retention and use of human tissue 3
(1) An order for a post mortem examination, or other examination 4
or test, under section 48 or 49 is taken to authorise the removal 5
and use of tissue from the body of the deceased person for any 6
of the following purposes: 7
(a) an investigation by a coroner of the person's death, 8
(b) an investigation of any offence, 9
(c) proceedings for any offence. 10
(2) Such an order is also taken to authorise the following: 11
(a) the retention of small samples of any of the following 12
tissue removed from the body of the deceased person 13
under subsection (1): 14
(i) bodily fluid, 15
(ii) skin, hair and nails, 16
(iii) any other tissue retained in the form of a tissue 17
slide or tissue block which enables microscopic 18
examination of the tissue, 19
(iv) such tissue as may be directed in writing by a 20
coroner in any particular case, 21
(b) the use of any sample retained under paragraph (a) for 22
any of the following purposes: 23
(i) the exercise by a coroner of his or her functions 24
under this Act, 25
(ii) an investigation of any offence, 26
(iii) any legal proceedings (whether or not in 27
connection with an offence), 28
(iv) a purpose authorised by an authority given under 29
the Human Tissue Act 1983 that is sufficient 30
authority to use the tissue for that purpose, 31
(v) in relation to a sample referred to in 32
paragraph (a) (iii), any medical, therapeutic or 33
scientific purpose, 34
(vi) such other purposes as may be prescribed by the 35
regulations. 36
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Human Tissue and Anatomy Legislation Amendment Bill 2002
Schedule 3 Amendment of other Acts
(3) This section does not limit the rights of a coroner under 1
section 24 and does not affect anything authorised by or under 2
any other law. 3
(4) In this section: 4
tissue includes an organ, or part, of a human body and a 5
substance extracted from, or from a part of, a human body 6
(including bodily fluid). 7
[4] Section 53AA 8
Insert after section 53: 9
53AA General 10
In the performance of any post mortem examination, or other 11
examination or test, under this Part in respect of the remains of 12
a person, regard is to be had to the dignity of the deceased 13
person. 14
3.2 Search Warrants Act 1985 No 37 15
Section 10 Definitions 16
Insert in the definition of search warrant in alphabetical order of Acts: 17
section 33G of the Human Tissue Act 1983, 18
Page 48
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