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New South Wales
Human Tissue and Anatomy
Legislation Amendment Bill 2003
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
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2003
New South Wales
Human Tissue and Anatomy
Legislation Amendment Bill 2003
Act No , 2003
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.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Human Tissue and Anatomy Legislation Amendment Bill 2003
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Human Tissue and Anatomy Legislation Amendment
Act 2003.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation, except as provided by subsection (2).
(2) Schedule 3.2 and 3.3 commence on the commencement of
Division 4 of Part 5 of the Law Enforcement (Powers and
Responsibilities) Act 2002.
3 Amendment of Anatomy Act 1977 No 126
The Anatomy Act 1977 is amended as set out in Schedule 1.
4 Amendment of Human Tissue Act 1983 No 164
The Human Tissue Act 1983 is amended as set out in Schedule 2.
5 Amendment of other Acts
The Acts specified in Schedule 3 are amended as set out in that
Schedule.
Page 2
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Anatomy Act 1977 Schedule 1
Schedule 1 Amendment of Anatomy Act 1977
(Section 3)
[1] Section 4 Definitions
Omit the definitions of anatomy, designated officer and school of
anatomy from section 4 (1).
Insert in alphabetical order:
anatomical examination of a body includes use of the body
for medical or scientific purposes.
Note. However, an anatomical examination does not include a post
mortem examination that is required, directed or authorised as provided
by section 5.
designated officer means:
(a) in relation to a hospital, a person appointed for the time
being under section 5 (1) (a) of the Human Tissue Act
1983 to be a designated officer for the hospital, or
(b) in relation to a forensic institution, a person appointed
for the time being under section 5 (3) of the Human
Tissue Act 1983 to be a designated officer for the
forensic institution.
exercise a function includes perform a duty.
forensic institution means:
(a) an institution that is under the control of a public health
organisation (within the meaning of the Health Services
Act 1997), or
(b) an accredited pathology laboratory under the Health
Insurance Act 1973 of the Commonwealth,
at which post mortem examinations of bodies are carried out,
but does not include a hospital.
function includes a power, authority or duty.
human tissue means an organ or other part of a body.
licensed premises means a place specified in a licence at
which the holder of the licence may conduct anatomical
examinations.
Page 3
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 1 Amendment of Anatomy Act 1977
[2] Section 4 (3) and (4)
Insert after section 4 (2):
(3) In this Act, a reference to the use of a body for medical or
scientific purposes includes carrying out any procedure on the
body, or subjecting the body to an experiment, process or
research, for medical or scientific purposes.
(4) In this Act, a reference to medical or scientific purposes
includes educational purposes connected with medicine or
science.
[3] Sections 4A and 4B
Insert after section 4:
4A Notes
Notes included in this Act do not form part of this Act.
4B Delegation of functions of next of kin
(1) A next of kin of a deceased person may from time to time, by
instrument in writing, authorise a person to exercise his or her
functions under this Act as a next of kin of the deceased
person.
(2) In such a case, the person so authorised:
(a) may exercise the functions of a next of kin of the
deceased person under this Act (other than the function
conferred by subsection (1)), in the place of the person
who authorised him or her, and
(b) is taken, for the purposes of this Act, to be a next of kin
of the deceased person, and
(c) for the purposes of the definition of senior available
next of kin in section 4 (1), is taken to be a next of kin
of the same order as the person who authorised him or
her to exercise the functions of a next of kin.
Page 4
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Anatomy Act 1977 Schedule 1
[4] Section 5
Omit the section. Insert instead:
5 Anatomical examination does not include post mortem
examination
In this Act, a reference to an anatomical examination, or to the
possession of a body for the purposes of an anatomical
examination, does not include a post mortem examination, or
the possession of a body for the purposes of a post mortem
examination, if that post mortem examination is:
(a) required or directed to be made by a competent legal
authority, or
(b) made or to be made pursuant to an authority under Part
5 of the Human Tissue Act 1983.
Note. Accordingly, a licence under this Act is not required to conduct
such a post mortem examination.
[5] Part 2, heading
Omit the heading. Insert instead:
Part 2 Regulation of anatomical examinations
[6] Section 6 Director-General may issue licence to person to
conduct anatomical examinations
Omit "conduct the study and practice of anatomy" from section 6 (1).
Insert instead "conduct anatomical examinations".
[7] Section 6 (2)
Omit "the study and practice of anatomy".
Insert instead "the conduct of anatomical examinations".
[8] Section 7 Inspectors
Omit "any school of anatomy" from section 7 (2).
Insert instead "any licensed premises".
Page 5
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 1 Amendment of Anatomy Act 1977
[9] Sections 8 and 8A
Omit the sections. Insert instead:
8 Authority for anatomical examination where body of deceased
at a hospital or forensic institution
(1) If a designated officer for a hospital or forensic institution is
satisfied, after making such inquiries as are reasonable in the
circumstances in relation to a person whose body is at the
hospital or forensic institution, that:
(a) the person had, during the person's lifetime, given his
or her consent in writing to the anatomical examination
of the person's body after the person's death, and
(b) the consent had not been revoked,
the designated officer may, by instrument in writing,
authorise the anatomical examination of that person's body.
(2) An authority under subsection (1) is not to be given in relation
to a deceased child.
(3) If the designated officer is not satisfied as to the matters
referred to in subsection (1), or the deceased person is a
deceased child, and the designated officer is satisfied, after
making such inquiries as are reasonable in the circumstances
in relation to the deceased person, that:
(a) the deceased person had not, during the person's
lifetime, expressed an objection to the anatomical
examination of the person's body after the person's
death, and
(b) a senior available next of kin has given his or her
consent in writing to the anatomical examination of the
person's body, and
(c) there is no next of kin of the same or a higher order of
the classes in paragraph (a) or (b) of the definition of
senior available next of kin in section 4 (1) who objects
to the anatomical examination of the person's body,
the designated officer may, by instrument in writing,
authorise the anatomical examination of the person's body.
(4) An authority must be given in accordance with the terms and
any conditions of the relevant consent (that is, the consent
referred to in subsection (1) (a) or (3) (b)).
Page 6
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Anatomy Act 1977 Schedule 1
8A Authority for anatomical examination where body of deceased
not at a hospital or forensic institution
(1) If the body of a deceased person (other than a deceased child)
is at a place other than a hospital or forensic institution, the
anatomical examination of that person's body is authorised if:
(a) the deceased person had, during the person's lifetime,
given his or her consent in writing to the anatomical
examination of the person's body after the person's
death, and
(b) the consent had not been revoked.
(2) The authority conferred by subsection (1) is subject to the
terms and any conditions of the consent referred to in that
subsection.
(3) If the body of a deceased person is at a place other than a
hospital or forensic institution, a senior available next of kin
of the person may, by instrument in writing, authorise the
anatomical examination of the person's body.
(4) A senior available next of kin must not grant an authority
under subsection (3) if it appears to the senior available next
of kin, after making such inquiries as are reasonable in the
circumstances, that:
(a) the deceased person had, during the person's lifetime,
expressed an objection to the anatomical examination
of the person's body after the person's death, or
(b) another next of kin of the same or higher order of the
classes in paragraph (a) or (b) of the definition of senior
available next of kin in section 4 (1) objects to the
anatomical examination of the person's body.
Maximum penalty: 10 penalty units.
[10] Section 8B Consent by coroner
Insert "or a forensic institution" after "hospital" in section 8B (2).
Page 7
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 1 Amendment of Anatomy Act 1977
[11] Section 8C Effect of authority
Omit section 8C (1). Insert instead:
(1) An authority under section 8 or 8A is sufficient authority:
(a) for a person who has lawful possession of a body to
cause or permit the body to be used by a holder of a
licence for anatomical examination in accordance with
the authority, and
(b) for the holder of a licence, or a person authorised by the
holder of a licence, to conduct an anatomical
examination of the body, at licensed premises, in
accordance with the authority, subject to the terms or
conditions of the licence.
[12] Section 11 Transfer of bodies
Omit "any person who is in charge of the study and practice of anatomy at
any place outside New South Wales" from section 11 (1) (b).
Insert instead "any person who is in charge of the conduct of anatomical
examinations at any place outside New South Wales".
[13] Section 11A
Insert after section 11:
11A Transfer of human tissue
(1) The holder of a licence may transfer human tissue from a
body that is in the holder's possession for anatomical
examination:
(a) to another holder of a licence, or
(b) to an authorised officer of a hospital, or
(c) to an authorised officer of an interstate hospital, or
(d) to any other person approved in writing by the Director-
General, subject to such conditions as may be imposed
by the Director-General,
for use for medical or scientific purposes, unless the holder
has reason to believe that to do so would be contrary to the
wishes of the deceased or the senior available next of kin of
the deceased.
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Anatomy Act 1977 Schedule 1
(2) The holder of a licence must ensure that arrangements are
made for the return of the human tissue to the holder of the
licence as soon as practicable and by no later than the end of
the period (if any) within which the human tissue is required
to be disposed of under section 12.
Maximum penalty: 10 penalty units.
Note. Section 12 requires a body that is retained for anatomical
examination, and any human tissue from that body, to be disposed of
within a certain period after the death of the person. Section 12 does not
apply if a specific authority has been given to retain the human tissue.
(3) The holder of a licence must, immediately after transferring
human tissue under subsection (1), enter in the register kept
by the holder opposite the particulars relating to the body
concerned:
(a) the fact that the human tissue was transferred, and
(b) the date on which it was transferred, and
(c) the name and address of the person to whom it was
transferred and of the licensed premises, hospital or
other place at which the human tissue is to be retained,
and
(d) details of the arrangements made with respect to the
return of the human tissue.
Maximum penalty: 10 penalty units.
(4) Subject to subsection (5), the following persons are
authorised to use, for medical or scientific purposes, human
tissue transferred under this section:
(a) the person to whom the tissue was transferred,
(b) any person authorised by that person.
(5) A person who has possession of human tissue that has been
transferred by the holder of a licence under this section must
ensure that the human tissue is returned to the possession of
the holder of the licence:
(a) within the period specified in the arrangements referred
to in subsection (2), or
(b) if no period is specified, by the end of the period within
which the human tissue must be disposed of under
section 12.
Maximum penalty: 10 penalty units.
Page 9
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 1 Amendment of Anatomy Act 1977
(6) Subsections (2) and (5) do not apply in respect of any human
tissue:
(a) that will be or has been wholly or substantially
destroyed as a consequence of its use for medical or
scientific purposes, or
(b) that is not required to be disposed of by section 12.
(7) In this section:
authorised officer means an employee or officer of a hospital
or interstate hospital who is authorised by the governing body
of the hospital to take possession of human tissue on behalf of
the hospital.
interstate hospital means a public or private hospital of
another State or a Territory.
[14] Section 12 Disposal of bodies
Omit section 12 (1) and (2). Insert instead:
(1) The holder of a licence must dispose of any body which is in
the holder's possession for anatomical examination
(including any human tissue from that body):
(a) within 4 years after the death of the deceased person, or
(b) in accordance with the terms of an authorisation granted
under subsection (2).
Maximum penalty: 10 penalty units.
(2) An inspector may, by instrument in writing, authorise the
following:
(a) the retention of a body for anatomical examination for
a period specified by the inspector, being a period that
does not end more than 8 years after the death of the
deceased person,
(b) the retention of human tissue from a body (whether for
a specified period or otherwise).
(2A) An inspector must, in exercising his or her functions under
subsection (2):
(a) consider the purposes for which retention of the body,
or human tissue, is sought, and
Page 10
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Anatomy Act 1977 Schedule 1
(b) ensure that any authorisation granted by the inspector
complies with the terms and any conditions of the
authority under section 8 or 8A that initially authorised
the retention of the body for anatomical examination.
(2B) The holder of a licence must:
(a) comply with any terms or conditions that are imposed
by an inspector in granting an authorisation under
subsection (2), and
(b) enter in the register kept by the holder opposite the
particulars relating to the body the fact that the
authority has been given and the terms and conditions
to which the authority is subject.
Maximum penalty: 10 penalty units.
[15] Section 12 (5) and (6)
Insert after section 12 (4):
(5) This section does not require the disposal of human tissue if
the permanent retention of the tissue has been expressly
authorised:
(a) by the consent in writing of the deceased person given
during his or her lifetime (except in the case of a
deceased child), or
(b) by the consent in writing of the senior available next of
kin of the deceased person.
(6) This section does not require the disposal of any small
samples of human tissue that are retained in the form of tissue
slides or tissue blocks that enable microscopic examination of
the tissue.
[16] Section 14 Offences
Omit "other than a school of anatomy" from section 14 (1).
Insert instead "other than licensed premises".
Page 11
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 1 Amendment of Anatomy Act 1977
[17] Section 14 (2)(3B)
Omit section 14 (2) and (3) (including the maximum penalties).
Insert instead:
(2) A person must not conduct an anatomical examination of a
body at any place other than licensed premises.
Maximum penalty: 10 penalty units.
(3) A person must not conduct an anatomical examination of a
body unless the person is the holder of a licence or is
authorised to do so by the holder of a licence.
Maximum penalty: 40 penalty units or imprisonment for 6
months, or both.
(3A) A person must not conduct an anatomical examination of a
body except in accordance with an authority that is, under this
Act, sufficient authority for the person to conduct the
anatomical examination.
Maximum penalty: 40 penalty units or imprisonment for 6
months, or both.
(3B) A person must not give an authority under this Act without
having made the inquiries that the person is required by this
Act to have made.
Maximum penalty: 40 penalty units or imprisonment for 6
months, or both.
[18] Section 14 (6)
Insert after section 14 (5):
(6) Subsections (1)(3A) do not apply to or in respect of anything
authorised by or under:
(a) the Coroners Act 1980, or
(b) the Human Tissue Act 1983, or
(c) any other law.
Page 12
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Anatomy Act 1977 Schedule 1
[19] Section 15
Insert after section 14:
15 Authority not to be given in respect of child in care of the State
(1) A person must not authorise the anatomical examination of
the body of a deceased child if the child was, immediately
before his or her death, in the care of the State.
Maximum penalty: 40 penalty units or imprisonment for 6
months, or both.
(2) Subsection (1) applies despite any other provision of this Act.
(3) This section does not apply to or in respect of anything done
under the Coroners Act 1980 or any other law.
(4) For the purposes of this section, a child is in the care of the
State if:
(a) the Minister administering the Children and Young
Persons (Care and Protection) Act 1998 has sole
parental responsibility in respect of the child (whether
under that Act or otherwise), or
(b) the Director-General under the Children and Young
Persons (Care and Protection) Act 1998 has sole
parental responsibility in respect of the child (whether
under that Act or otherwise).
[20] Section 16A
Insert after section 16:
16A General
In the conduct of an anatomical examination of a body under
an authority conferred by this Act, regard is to be had to the
dignity of the deceased person.
Page 13
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 1 Amendment of Anatomy Act 1977
[21] Section 17 Regulations
Insert at the end of section 17 (2) (c):
, and
(d) the standards to be complied with in connection with
anything authorised by or under this Act, including by
requiring those standards to be complied with as a
condition of an authority conferred by or under this Act.
(2A) The regulations may apply, adopt or incorporate, wholly or in
part and with or without modification, any guidelines or other
document (such as a code of practice), as in force at a
particular time or as in force from time to time, prescribed or
published by the National Health and Medical Research
Council or by any other person or body.
[22] Section 19
Omit the section. Insert instead:
19 Savings, transitional and other provisions
Schedule 2 has effect.
[23] Schedule 2
Insert after Schedule 1:
Schedule 2 Savings, transitional and other
provisions
(Section 19)
Part 1 Preliminary
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
Human Tissue and Anatomy Legislation Amendment Act 2003
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
Page 14
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Anatomy Act 1977 Schedule 1
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of
Human Tissue and Anatomy Legislation
Amendment Act 2003
2 Saving of licences
A licence issued under section 6 and in force immediately
before the commencement of the amendments made to that
section by the Human Tissue and Anatomy Legislation
Amendment Act 2003 is taken, on the commencement of those
amendments, to authorise the conduct of anatomical
examinations at the place specified in the licence as the place
at which the study and practice of anatomy may be conducted.
3 Application of amendments to section 12
(1) The amendments made to section 12 by the Human Tissue
and Anatomy Legislation Amendment Act 2003 are taken to
extend to a body that is in the possession of a holder of a
licence for anatomical examination immediately before the
commencement of those amendments, including any human
tissue from that body.
(2) If such a body has been retained for more than 4 years after
the death of the person (under an authority granted under
former section 12 (2)), new section 12 (1) applies as if a
reference in that subsection to the death of the deceased
person were a reference to the commencement of new section
12 (1).
Page 15
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 1 Amendment of Anatomy Act 1977
(3) In this clause:
former section 12 (2) means section 12 (2) as in force
immediately before its substitution by the Human Tissue and
Anatomy Legislation Amendment Act 2003.
new section 12 (1) means section 12 (1) as substituted by the
Human Tissue and Anatomy Legislation Amendment Act
2003.
[24] Long title
Omit "to amend and re-enact the law relating to anatomy".
Insert instead "to regulate the conduct of anatomical examinations".
Page 16
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Human Tissue Act 1983 Schedule 2
Schedule 2 Amendment of Human Tissue Act 1983
(Section 4)
[1] Section 4 Definitions
Omit the definition of designated officer from section 4 (1). Insert instead:
designated officer means:
(a) in relation to a hospital, a person appointed for the time
being under section 5 (1) (a) to be a designated officer
for the hospital, or
(b) in relation to a forensic institution, a person appointed
for the time being under section 5 (3) to be a designated
officer for the forensic institution.
[2] Section 4 (1)
Insert in alphabetical order:
Director-General means the Director-General of the
Department of Health.
exercise a function includes perform a duty.
forensic institution means:
(a) an institution that is under the control of a public health
organisation (within the meaning of the Health Services
Act 1997), or
(b) an accredited pathology laboratory under the Health
Insurance Act 1973 of the Commonwealth,
at which post-mortem examinations of human bodies are
carried out, but does not include a hospital.
function includes a power, authority or duty.
inspector means a person appointed as an inspector under Part
7A.
medical, dental or surgical treatment means any medical,
dental or surgical treatment carried out by, or under the
supervision of, a medical practitioner or dentist with respect
to a living person in the interests of the health of the person.
Page 17
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 2 Amendment of Human Tissue Act 1983
[3] Section 4 (1), definition of "governing body"
Omit the definition. Insert instead:
governing body means:
(a) in relation to a hospital:
(i) in the case of a public hospital that is controlled
by a public health organisation within the
meaning of the Health Services Act 1997--the
public health organisation, or
(ii) in the case of a public hospital within the
meaning of the Health Services Act 1997 that is
controlled by the Crown (including the Minister
or the Health Administration Corporation)--the
Crown, or
(iii) in the case of a private hospital within the
meaning of the Private Hospitals and Day
Procedure Centres Act 1988--the licensee of the
hospital, or
(b) in relation to a forensic institution:
(i) in the case of a forensic institution that is
controlled by a public health organisation within
the meaning of the Health Services Act 1997--
the public health organisation, or
(ii) in the case of an accredited pathology laboratory
under the Health Insurance Act 1973 of the
Commonwealth--the person in charge of the
laboratory (however designated).
[4] Section 4 (1), definition of "next of kin"
Insert before paragraph (a):
(aa) in relation to a child who is living--a person referred to
in paragraph (aa) of the definition of senior available
next of kin, and
[5] Section 4 (1), definition of "senior available next of kin"
Insert before paragraph (a):
(aa) in relation to a child who is living:
(i) a parent of the child, or
Page 18
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Human Tissue Act 1983 Schedule 2
(ii) if no person referred to in subparagraph (i) is
available--a person who is a guardian of the
child, and
[6] Section 4 (5) and (6)
Insert after section 4 (4):
(5) In this Act, a reference to tissue removed from the body of a
living person in the course of medical, dental or surgical
treatment includes:
(a) tissue expelled from the body of the person in the
course of the treatment, and
(b) all tissue removed or expelled from the body of the
person in the course of the treatment, even if the person
dies during the course of the treatment.
(6) In this Act, a reference to medical or scientific purposes
includes educational purposes connected with medicine or
science.
[7] Section 4A
Insert after section 4:
4A Notes
Notes included in this Act do not form part of this Act.
[8] Section 5 Designated officers and designated specialists
Insert after section 5 (2):
(3) The governing body of a forensic institution may, by
instrument in writing, appoint such persons as the governing
body considers necessary to be designated officers for the
forensic institution.
Page 19
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 2 Amendment of Human Tissue Act 1983
[9] Section 5A
Insert after section 5:
5A Delegation of functions of next of kin
(1) A next of kin of a deceased person may from time to time, by
instrument in writing, authorise a person to exercise his or her
functions under this Act as a next of kin of the deceased
person.
(2) In such a case, the person so authorised:
(a) may exercise the functions of a next of kin of the
deceased person under this Act (other than the function
conferred by subsection (1)), in the place of the person
who authorised him or her, and
(b) is taken, for the purposes of this Act, to be a next of kin
of the deceased person, and
(c) for the purposes of the definition of senior available
next of kin in section 4 (1), is taken to be a next of kin
of the same order as the person who authorised him or
her to exercise the functions of a next of kin.
[10] Section 21F Definitions
Omit the definition of inspector from section 21F (2).
[11] Sections 21P21T
Omit the sections.
[12] Part 3C
Insert after Part 3B:
Part 3C Use of tissue removed during medical,
dental or surgical treatment
21W Application
(1) This Part applies with respect to the use of tissue removed
from the body of a living person during medical, dental or
surgical treatment carried out in the interests of the health of
the person. This Part does not authorise the removal of tissue
Page 20
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Human Tissue Act 1983 Schedule 2
from the body of a person after that person's death or the use
of any tissue so removed.
Note. See Parts 4 and 5 in relation to the removal of tissue after a
person's death and the use of that tissue.
(2) This Part does not apply to or in respect of the following:
(a) tissue that is removed in accordance with Part 2,
(b) blood that is removed in accordance with Part 3 or 3A,
(c) semen obtained or received from a donor in accordance
with Part 3A.
21X Authority to use tissue removed from adult
(1) The use, for therapeutic, medical or scientific purposes, of
tissue removed from the body of a person during medical,
dental or surgical treatment, is authorised if:
(a) the person has given his or her consent in writing to the
use of the tissue for that purpose, and
(b) the consent has not been revoked.
(2) The authority conferred by subsection (1) is subject to the
terms and any conditions of the consent referred to in that
subsection.
(3) This section does not apply if the person:
(a) is a child, or
(b) is a patient to whom Part 5 of the Guardianship Act
1987 applies.
21Y Authority to use tissue removed from child
(1) A senior available next of kin of a child may, by instrument in
writing, authorise the use, for therapeutic, medical or
scientific purposes, of any tissue removed from the body of
the child during medical, dental or surgical treatment.
(2) A senior available next of kin must not grant an authority
under subsection (1) if it appears to the senior available next
of kin, after making such inquiries as are reasonable in the
circumstances, that:
(a) the child objects to the use of the tissue for the purposes
to be authorised, or
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 2 Amendment of Human Tissue Act 1983
(b) there is another next of kin of the same or higher order
of the classes in paragraph (aa) of the definition of
senior available next of kin in section 4 (1) who objects
to the use of the tissue for the purposes to be authorised.
Maximum penalty: 10 penalty units.
(3) This section does not apply if the child is deceased.
Note. Section 21ZA may apply if the child is deceased.
21Z Authority to use tissue removed from person under
guardianship
(1) A person responsible for a person who is a patient to whom
Part 5 of the Guardianship Act 1987 applies may, by
instrument in writing, authorise the use, for therapeutic,
medical or scientific purposes, of any tissue removed from the
body of the patient during medical, dental or surgical
treatment.
(2) This section does not apply if:
(a) the patient is a child and the Minister administering the
Children and Young Persons (Care and Protection) Act
1998 has sole parental responsibility in respect of the
child (whether under that Act or otherwise), or
(b) the patient is a child and the Director-General under the
Children and Young Persons (Care and Protection) Act
1998 has sole parental responsibility in respect of the
child (whether under that Act or otherwise), or
(c) the patient (whether or not a child) is deceased.
(3) In this section:
person responsible for a person has the meaning given by Part
5 of the Guardianship Act 1987.
21ZA Authority to use tissue removed from deceased person
(1) A senior available next of kin of a person who is deceased
may, by instrument in writing, authorise the use, for
therapeutic, medical or scientific purposes, of any tissue that
was removed from the body of the deceased person, before
that person's death, during medical, dental or surgical
treatment.
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(2) A senior available next of kin must not grant an authority
under subsection (1) if it appears to the senior available next
of kin, after making such inquiries as are reasonable in the
circumstances, that:
(a) the deceased person had, during the person's lifetime,
expressed an objection to the use of tissue removed
from the person's body for the purposes to be
authorised and had not withdrawn that objection, or
(b) there is another next of kin of the same or higher order
of the classes in paragraph (a) or (b) of the definition of
senior available next of kin in section 4 (1) who objects
to the use of the tissue for the purposes to be authorised.
Maximum penalty: 10 penalty units.
21ZB Effect of authority under this Part
(1) An authority under this Part is sufficient authority for the use,
for therapeutic, medical or scientific purposes, of tissue
removed from the body of a person during medical, dental or
surgical treatment, if the tissue is used in accordance with the
terms and any conditions of the authority.
(2) An authority under this Part does not authorise the removal of
tissue from the body of a person.
Note. Parts 2, 3 and 3A provide authority to remove tissue (including
blood and semen) from the body of a living person for purposes such as
transplantation and transfusion, and other therapeutic, scientific, and
medical purposes. Parts 4 and 5 provide authority to remove tissue from
the body of a person who is deceased. In certain cases, an authority
under this Act to remove tissue is not required (see section 34 (1) (a)).
[13] Sections 23 and 24
Omit the sections. Insert instead:
23 Authority to remove tissue where body of deceased at a
hospital
(1) If a designated officer for a hospital is satisfied, after making
such inquiries as are reasonable in the circumstances in
relation to a person who has died in the hospital or whose dead
body has been brought into the hospital, that:
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(a) the person had, during the person's lifetime, given his
or her consent in writing to the removal after that
person's death of tissue from that person's body for the
purpose of:
(i) its transplantation to the body of a living person,
or
(ii) its use for other therapeutic purposes or for
medical purposes or scientific purposes, and
(b) the consent had not been revoked,
the designated officer may, by instrument in writing,
authorise the removal of tissue from that person's body in
accordance with the terms and any conditions of the consent.
(2) An authority under subsection (1) is not to be given in respect
of a deceased child.
(3) If the designated officer is not satisfied as to the matters
referred to in subsection (1), or the deceased person is a
deceased child, and the designated officer is satisfied, after
making such inquiries as are reasonable in the circumstances
in relation to the deceased person, that:
(a) the deceased person had not, during the person's
lifetime, expressed an objection to the removal of tissue
from the person's body, and
(b) a senior available next of kin has given his or her
consent in writing, or in any other manner prescribed by
the regulations, to the removal of tissue from the
person's body, and
(c) there is no next of kin of the same or a higher order of
the classes in paragraph (a) or (b) of the definition of
senior available next of kin in section 4 (1) who objects
to the removal of tissue from the person's body,
the designated officer may, by instrument in writing,
authorise the removal of tissue from the deceased person's
body in accordance with the terms and any conditions of the
consent referred to in paragraph (b).
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24 Authority to remove tissue where body of deceased not at a
hospital
(1) If the body of a deceased person (other than a deceased child)
is at a place other than a hospital, the removal of tissue from
the body of the deceased person for the purpose of its
transplantation to the body of a living person, or its use for
other therapeutic purposes or for medical purposes or
scientific purposes, is authorised if:
(a) the deceased person had, during the person's lifetime,
given his or her consent in writing to the removal of
tissue from the person's body for that purpose, and
(b) the consent had not been revoked.
(2) The authority conferred by subsection (1) is subject to the
terms and any conditions of the consent referred to in that
subsection.
(3) If the body of a deceased person is at a place other than a
hospital, a senior available next of kin of the person may, by
instrument in writing or in any other manner prescribed by the
regulations, authorise the removal of tissue from the deceased
person's body for the purpose of its transplantation to the
body of a living person, or its use for other therapeutic
purposes or for medical purposes or scientific purposes.
(4) A senior available next of kin must not grant an authority
under subsection (3) if it appears to the senior available next
of kin, after making such inquiries as are reasonable in the
circumstances, that:
(a) the deceased person had, during the person's lifetime,
expressed an objection to the removal of tissue from the
person's body and had not withdrawn that objection, or
(b) another next of kin of the same or higher order of the
classes in paragraph (a) or (b) of the definition of senior
available next of kin in section 4 (1) objects to the
removal of tissue from the person's body.
Maximum penalty: 10 penalty units.
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[14] Section 27 Effect of authority under this Part
Insert after section 27 (2):
(3) An authority under this Part does not authorise the use, for
therapeutic, medical or scientific purposes, of any tissue
removed from the body of a deceased person:
(a) in the course of the medical, dental or surgical treatment
performed while the person was still living, or
(b) for the purposes of a post-mortem examination.
Note. An authority under Part 3C may be given to authorise the use, for
therapeutic, medical or scientific purposes, of any tissue removed in the
course of medical, dental or surgical treatment while the person was still
living. An authority under Division 2 of Part 5 may be given to authorise
the use, for therapeutic, medical or scientific purposes, of any tissue
removed for the purposes of a post-mortem examination.
[15] Part 5, Division 1, heading
Insert before section 28:
Division 1 Authority to conduct post-mortem
examinations
[16] Sections 28 and 29
Omit the sections. Insert instead:
28 Authority for post-mortem examination where body of
deceased at a hospital
(1) If a designated officer for a hospital is satisfied, after making
such inquiries as are reasonable in the circumstances in
relation to a person who has died in the hospital or whose dead
body has been brought into the hospital, that:
(a) the person had, during the person's lifetime, given his
or her consent in writing to the post-mortem
examination of that person's body, and
(b) the consent had not been revoked,
the designated officer may, by instrument in writing,
authorise the post-mortem examination of that person's body
in accordance with the terms and any conditions of the
consent.
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(2) An authority under subsection (1) is not to be given in respect
of a deceased child.
(3) If the designated officer is not satisfied as to the matters
referred to in subsection (1), or the deceased person is a
deceased child, and the designated officer is satisfied, after
making such inquiries as are reasonable in the circumstances
in relation to the deceased person, that:
(a) the deceased person had not, during the person's
lifetime, expressed an objection to the post-mortem
examination of the person's body, and
(b) a senior available next of kin has given his or her
consent in writing to the post-mortem examination of
the person's body, and
(c) there is no next of kin of the same or a higher order of
the classes in paragraph (a) or (b) of the definition of
senior available next of kin in section 4 (1) who objects
to the post-mortem examination of the person's body,
the designated officer may, by instrument in writing,
authorise the post-mortem examination of the person's body
in accordance with the terms and any conditions of the
consent referred to in paragraph (b).
29 Authority for post-mortem examination where body of
deceased not at a hospital
(1) If the body of a deceased person (other than a deceased child)
is at a place other than a hospital, the post-mortem
examination of that person's body is authorised if:
(a) the deceased person had, during the person's lifetime,
given his or her consent in writing to the post-mortem
examination of the person's body after the person's
death, and
(b) the consent had not been revoked.
(2) The authority conferred by subsection (1) is subject to the
terms and any conditions of the consent referred to in that
subsection.
(3) If the body of a deceased person is at a place other than a
hospital, a senior available next of kin of the person may, by
instrument in writing, authorise the post-mortem examination
of the person's body.
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(4) A senior available next of kin must not grant an authority
under subsection (3) if it appears to the senior available next
of kin, after making such inquiries as are reasonable in the
circumstances, that:
(a) the deceased person had, during the person's lifetime,
expressed an objection to the post-mortem examination
of the person's body and had not withdrawn that
objection, or
(b) another next of kin of the same or higher order of the
classes in paragraph (a) or (b) of the definition of senior
available next of kin in section 4 (1) objects to the post-
mortem examination of the person's body.
Maximum penalty: 10 penalty units.
[17] Section 31 Effect of authority under this Division
Omit "this Part" from section 31 (1). Insert instead "this Division".
[18] Section 31 (2) and (3)
Omit the subsections. Insert instead:
(2) An authority under this Division does not authorise any
person to use any tissue removed from a person's body for
any therapeutic, medical or scientific purposes other than the
purposes of the post-mortem examination.
Note. An authority under this Division is not required in respect of
anything authorised by or under the Coroners Act 1980 (see section 36
(4) of this Act). An authority under Division 2 of Part 5 may be given to
authorise the use, for therapeutic, medical or scientific purposes, of any
tissue removed for the purposes of a post-mortem examination. An
authority to use, for therapeutic, medical or scientific purposes, tissue
removed for the purposes of a post-mortem examination is not required
in respect of small samples of tissue that are retained in the form of
tissue slides or tissue blocks (see section 34).
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[19] Part 5, Divisions 2 and 3
Insert after section 31:
Division 2 Use of tissue removed for post-mortem
examination for other purposes
31A Authority to use tissue removed for post-mortem examination
for other purposes
(1) If a designated officer for a hospital or forensic institution is
satisfied, after making such inquiries as are reasonable in the
circumstances in relation to a deceased person whose body is
being retained at a hospital or forensic institution for the
purposes of a post-mortem examination or has been the
subject of a post-mortem examination at a hospital or forensic
institution, that:
(a) the person had, during the person's lifetime, given his
or her consent in writing to the use after the person's
death of tissue from the person's body for therapeutic,
medical or scientific purposes, and
(b) the consent had not been revoked,
the designated officer may, by instrument in writing,
authorise the use for therapeutic, medical or scientific
purposes of any tissue removed from the body of the deceased
person for the purposes of the post-mortem examination in
accordance with the terms and any conditions of the consent.
(2) An authority under subsection (1) is not to be given in respect
of a deceased child.
(3) If the designated officer is not satisfied as to the matters
referred to in subsection (1), or the deceased person is a
deceased child, and the designated officer is satisfied, after
making such inquiries as are reasonable in the circumstances
in relation to the deceased person, that:
(a) the deceased person had not, during the person's
lifetime, expressed an objection to the use after the
person's death of tissue from the person's body for
therapeutic, medical or scientific purposes, and
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(b) a senior available next of kin has given his or her
consent in writing to the use of tissue from the body of
the deceased person for therapeutic, medical or
scientific purposes, and
(c) there is no next of kin of the same or a higher order of
the classes in paragraph (a) or (b) of the definition of
senior available next of kin in section 4 (1) who objects
to the use of tissue for those purposes,
the designated officer may, by instrument in writing,
authorise the use for therapeutic, medical or scientific
purposes of any tissue removed from the body of the deceased
person for the purposes of the post-mortem examination in
accordance with the terms of the consent referred to in
paragraph (b).
31B Consent by coroner
(1) If a coroner has jurisdiction to hold an inquest under the
Coroners Act 1980 in respect of the death of a person, a
designated officer for a hospital or forensic institution must
not authorise the use of any tissue removed from the person's
body under section 31A unless a coroner has given consent to
the use of the tissue.
Maximum penalty: 40 penalty units or imprisonment for 6
months, or both.
(2) A consent by a coroner under this section may be expressed
to be subject to such conditions as are specified in the consent.
(3) The designated officer is to ensure that an authority given
under section 31A gives effect to any such conditions.
(4) A consent by a coroner under this section may be given orally
and, if so given, is to be confirmed in writing as soon as
practicable.
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31C Effect of authority under this Division
An authority given by a designated officer under this Division
is sufficient authority for a person to use, for therapeutic,
medical or scientific purposes, tissue removed from the body
of a deceased person for the purposes of a post-mortem
examination if:
(a) the tissue is used in accordance with the terms and any
conditions of the authority, and
(b) the person who uses the tissue is not the designated
officer who gave the authority.
Note. An authority under this Division is not required in respect of
anything authorised by or under the Coroners Act 1980 (see section 36
(4) of this Act).
Division 3 General
31D General
In the conduct of a post-mortem examination under an
authority conferred by this Act, regard is to be had to the
dignity of the deceased person.
[20] Section 32 Trading in tissue prohibited
Omit "A person shall not enter into a contract or arrangement" from
section 32 (1).
Insert instead "A person must not enter into, or offer to enter into, a
contract or arrangement".
[21] Section 32 (2)
Omit ", in accordance with the directions of a medical practitioner,".
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[22] Part 7A
Insert after Part 7:
Part 7A Enforcement
33A Appointment of inspectors
(1) The Director-General may appoint any officer of the
Department of Health, or any person who the Director-
General considers is suitably qualified for the purpose, to be
an inspector for the purposes of this Act.
(2) On appointing an inspector under subsection (1), the Director-
General must issue to the inspector a certificate of authority
that authorises the inspector to exercise the powers conferred
on an inspector by this Act.
(3) A certificate of authority must:
(a) state that it is issued under the Human Tissue Act 1983,
and
(b) give the name of the person to whom it is issued, and
(c) state the date, if any, on which it expires, and
(d) describe the nature of the powers conferred and the
source of the powers.
33B Powers of inspectors
(1) An inspector may at any reasonable time enter and inspect any
premises for the purpose of ascertaining whether or not a
provision of this Act, or any regulation made under this Act,
is being or has been complied with or contravened.
(2) While on premises entered under this section or under the
authority of a search warrant under section 33G, an inspector
may do one or more of the following:
(a) inspect:
(i) all tissue and blood products kept on those
premises, or anything the inspector reasonably
believes to be tissue or blood products, and
(ii) all containers that the inspector reasonably
believes to contain or to have contained tissue or
blood products, and
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(iii) all equipment kept on the premises that the
inspector reasonably believes to be or to have
been used for processing, packing or storing
tissue or blood products,
(b) take and remove for analysis or testing a sample of any
tissue or blood product kept on the premises, or
anything the inspector reasonably believes to be tissue
or blood products,
(c) inspect any records kept on those premises and require
any person whom the inspector reasonably believes to
have custody or control of those records to produce
them for inspection,
(d) require any person on those premises to answer
questions or otherwise furnish information in relation to
a contravention of a provision of this Act or the
regulations,
(e) make and take away copies of the whole or any part of
any records or other information,
(f) take away and retain, for such period as may be
reasonably necessary, any records or other information,
or any part of them, in order to make copies of them,
(g) take away and retain any records or other information,
if the inspector concerned reasonably believes that the
records or information are evidence of an offence
against this Act or a regulation made under this Act,
until proceedings for the offence have been disposed of,
(h) seize and detain:
(i) any tissue or blood product, or anything the
inspector reasonably believes to be tissue or a
blood product, in relation to which the inspector
reasonably believes an offence against this Act or
against a regulation under this Act is being or has
been committed, and
(ii) any container in which any such tissue or blood
product, or other thing, is kept, and
(iii) any equipment which the inspector reasonably
believes is being or has been used in connection
with any such offence,
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(i) place anything seized as referred to in paragraph (h) in
a container, or in a room, compartment or cabinet
located on the premises where they were seized, and
mark, fasten and seal that container or, as the case may
be, the door or opening providing access to that room,
compartment or cabinet,
(j) take such photographs, films, audio, video and other
recordings as the inspector considers necessary.
(3) Any thing seized under this section may, at the option of the
inspector who made the seizure or another inspector acting in
place of that inspector, be detained on the premises where it
was found or be removed to other premises and detained
there.
(4) Before taking away a record or statement or any thing seized
under this section, an inspector must tender an appropriate
receipt to the person from whom it is taken.
(5) This section does not authorise an inspector to enter any part
of premises that is being used for residential purposes except:
(a) with the consent of the occupier, or
(b) under the authority of a search warrant.
(6) An inspector must, when exercising on any premises any
function of an inspector under this section, produce the
inspector's certificate of authority if required to do so by the
occupier of the premises.
33C Provisions relating to exercise of powers
(1) A power conferred by this Act to enter premises, or to make
an inspection or take other action on premises, may not be
exercised unless the inspector proposing to exercise the
power:
(a) is in possession of a certificate of authority, and
(b) gives reasonable notice to the occupier of the premises
of the intention to exercise the power, unless the giving
of notice would defeat the purpose for which it is
intended to exercise the power, and
(c) exercises the power at a reasonable time, unless it is
being exercised in an emergency, and
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(d) uses no more force than is reasonably necessary to
effect the entry or make the inspection.
(2) If damage is caused by an inspector exercising a power to
enter premises, a reasonable amount of compensation is
recoverable as a debt owed by the Crown to the owner of the
premises unless the occupier obstructed the exercise of the
power.
(3) This section does not apply to a power conferred by a search
warrant issued under the Search Warrants Act 1985.
33D Requirement to provide information and records
(1) An inspector may, by notice in writing given to a person,
require the person to furnish to the inspector such information
or records (or both) as the inspector requires by the notice,
being information that relates to the question of whether or
not a provision of this Act, or any regulation made under this
Act, is being or has been complied with or contravened.
(2) A notice under this section:
(a) must specify the manner in which information or
records are required to be furnished and a reasonable
time by which the information or records are required to
be furnished, and
(b) may only require a person to furnish existing records
that are in the person's possession or that are within the
person's power to obtain lawfully.
(3) The inspector to whom any record is furnished under this Part
may take copies of it.
(4) If any record required to be furnished under this Part is in
electronic, mechanical or other form, the notice requires the
record to be furnished in written form, unless the notice
otherwise provides.
(5) This section applies whether or not a power of entry under this
Act is being or has been exercised.
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33E Power of inspectors to require answers
(1) An inspector may require a person whom the inspector
suspects on reasonable grounds to have knowledge of matters
in respect of which information is reasonably required for the
purposes of this Act to answer questions in relation to those
matters.
(2) An inspector may, by notice in writing, require a corporation
to nominate, in writing within the time specified in the notice,
a director or officer of the corporation to be the corporation's
representative for the purpose of answering questions under
this section.
(3) Answers given by a person nominated under subsection (2)
bind the corporation.
33F Power to demand name and address
An inspector may require a person whom the inspector
suspects on reasonable grounds to have contravened or to be
contravening this Act or the regulations to state his or her full
name and residential address.
33G Search warrants
(1) An inspector may apply to an authorised justice for a search
warrant for premises if the inspector believes on reasonable
grounds:
(a) that a provision of this Act or the regulations is being or
has been contravened on the premises, or
(b) that there is on the premises evidence of a contravention
of a provision of this Act or the regulations.
(2) An authorised justice to whom such an application is made
may, if satisfied that there are reasonable grounds for doing
so, issue a search warrant authorising an inspector named in
the warrant:
(a) to enter and inspect any premises, and
(b) to exercise the powers, or any specified powers, of an
inspector under this Part.
(3) Part 3 of the Search Warrants Act 1985 applies to a search
warrant issued under this section.
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(4) In this section:
authorised justice has the meaning it has in the Search
Warrants Act 1985.
33H Offences
(1) A person who, without lawful excuse, neglects or fails to
comply with a requirement made of the person by an inspector
under this Act is guilty of an offence.
(2) A person who furnishes any information or does any other
thing in purported compliance with a requirement made by an
inspector under this Act, knowing that it is false or misleading
in a material respect, is guilty of an offence.
(3) A person who hinders or obstructs an inspector in the exercise
of any of the powers conferred by this Act is guilty of an
offence.
(4) A person is not guilty of an offence of failing to comply with
a requirement made by an inspector unless it is established by
the prosecutor that the inspector concerned warned the person
that a failure or refusal to comply with the requirement was an
offence.
(5) A person is not guilty of an offence of hindering or
obstructing an inspector in the exercise of the inspector's
powers at any premises unless it is established by the
prosecutor that:
(a) the inspector concerned produced at the relevant time
the certificate of authority issued to the inspector under
this Part, and
(b) the person was informed by the inspector concerned, or
otherwise knew, that the inspector was empowered to
exercise the power to which the offence relates.
Maximum penalty: 10 penalty units or imprisonment for 3
months, or both.
33I Disallowance of seizure
(1) Any person claiming to be entitled to any seized item may,
within 10 days after the date on which the seizure took place,
make an application to the District Court for an order
disallowing the seizure.
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(2) An application made under subsection (1) must not be heard
unless the applicant has previously served a copy of the
application on the Director-General.
(3) The Director-General is entitled to appear as respondent at the
hearing of an application made under subsection (1).
(4) The District Court must, on the hearing of an application
made under subsection (1), make an order disallowing the
seizure:
(a) if it is proved by or on behalf of the applicant that the
applicant would, but for the seizure, be entitled to the
seized item and if it is not proved by or on behalf of the
respondent beyond all reasonable doubt that an offence
was being or had been at the time of the seizure,
committed in relation to the seized item, or
(b) if, in the opinion of the Court, there are exceptional
circumstances justifying the making of an order
disallowing the seizure.
(5) In any other case, the District Court must refuse the
application.
(6) If on the hearing of an application made under subsection (1)
it appears to the District Court that the seized item that is the
subject of the application is required to be produced in
evidence in any pending proceedings in connection with an
offence against this Act or the regulations, the Court may,
either on the application of the respondent or on its own
motion, adjourn the hearing until the conclusion of those
proceedings.
(7) If the District Court makes an order under subsection (4)
disallowing the seizure of any seized item, the Court must
also make one or both of the following orders:
(a) an order directing the respondent to cause the seized
item to be delivered to the applicant or to such other
person as appears to the Court to be entitled to it,
(b) if the seized item cannot for any reason be so delivered
or has in consequence of the seizure depreciated in
value, an order directing the Director-General to pay to
the applicant such amount by way of compensation as
the Court considers to be just and reasonable.
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(8) The award of costs with respect to the hearing of an
application made under subsection (1) is at the discretion of
the District Court.
(9) If the District Court makes an order for the payment of any
amount as compensation under subsection (7) (b) or awards
any amount as costs under subsection (8), that order is
enforceable as a judgment of the Court.
(10) In this section:
seized item means anything seized by an inspector under
section 33B (2) (h).
33J Disposal of seized items
(1) If:
(a) no application for disallowance of the seizure of a
seized item has been made within the period allowed by
section 33I (1), or
(b) any such application has been made within that period
and the application has been refused or withdrawn
before a decision in respect of the application has been
made,
the seized item is forfeited to the Crown and may be destroyed
or disposed of in such manner as the Director-General directs.
(2) Subsection (1) does not apply in respect of any seized item
that has been disposed of or destroyed as referred to in
subsection (3) or (7).
(3) If the Director-General is satisfied that there has been no
failure to comply with or contravention of this Act or the
regulations in relation to any seized item, the Director-
General must immediately cause the seized item to be
delivered to such person as appears to the Director-General to
be entitled to it.
(4) Subsection (3) does not apply in respect of any seized item
that has been forfeited or destroyed as referred to in
subsection (1) or (7).
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 2 Amendment of Human Tissue Act 1983
(5) If:
(a) any seized item is forfeited to the Crown under this
section because no application for disallowance of the
seizure was made within the period allowed by section
33I (1), and
(b) the Director-General is satisfied that there has been no
failure to comply with or contravention of this Act or
the regulations in relation to the seized item, and
(c) the seized item has not been disposed of or destroyed in
a manner that would prevent it from being dealt with in
accordance with this subsection,
the Director-General must immediately cause the seized item
to be delivered to such person as appears to the Director-
General to be the person who would, but for the forfeiture,
have been entitled to it.
(6) If any seized item is delivered to a person in accordance with
subsection (5), such proprietary and other interests as existed
immediately before the forfeiture are revived.
(7) If an inspector who has seized any tissue or blood product
under section 33B (2) (h) is satisfied on reasonable grounds
that the tissue or blood product contains a prescribed
contaminant, and the tissue or blood product is not required or
is no longer required to be retained for the purposes of any
legal proceedings, the inspector is to cause the tissue or blood
product to be destroyed.
(8) In this section:
seized item means anything seized by an inspector under
section 33B (2) (h).
[23] Section 34 Act does not prevent specified removals of tissue etc
Omit "medical or surgical treatment" from section 34 (1) (a).
Insert instead "medical, dental or surgical treatment".
[24] Section 34 (1) (b)
Omit section 34 (1) (b). Insert instead:
(b) the use of tissue so removed for the purposes of the
medical, dental or surgical treatment,
Page 40
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Human Tissue Act 1983 Schedule 2
[25] Section 34 (1) (b1) and (b2)
Insert after section 34 (1) (b):
(b1) the use, for therapeutic, medical or scientific purposes,
of small samples of any tissue that is lawfully removed
from the body of a person (whether living or deceased)
and retained in the form of a tissue slide or tissue block
which enables microscopic examination of the tissue,
(b2) the retention of tissue lawfully removed from the body
of a person (whether living or deceased) in prescribed
circumstances for such period as the regulations
authorise for the purpose of obtaining an authority
under this Act to use the tissue for therapeutic, medical
or scientific purposes,
[26] Section 34A
Insert after section 34:
34A Authority not to be given in respect of child in care of the State
(1) A person must not:
(a) authorise the removal of tissue from the body of a
deceased child for any purpose if the child was,
immediately before his or her death, in the care of the
State, or
(b) authorise the post-mortem examination of the body of a
deceased child if the child was, immediately before his
or her death, in the care of the State, or
(c) authorise the use of tissue removed during the post-
mortem examination of the body of a deceased child for
any purpose (other than the purposes of the post-
mortem examination) if the child was, immediately
before his or her death, in the care of the State.
Maximum penalty: 40 penalty units or imprisonment for 6
months, or both.
(2) Subsection (1) applies despite any other provision of this Act.
(3) This section does not apply to or in respect of anything done
under the Coroners Act 1980 or any other law.
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 2 Amendment of Human Tissue Act 1983
(4) For the purposes of this section, a child is in the care of the
State if:
(a) the Minister administering the Children and Young
Persons (Care and Protection) Act 1998 has sole
parental responsibility in respect of the child (whether
under that Act or otherwise), or
(b) the Director-General under the Children and Young
Persons (Care and Protection) Act 1998 has sole
parental responsibility in respect of the child (whether
under that Act or otherwise).
[27] Section 36 Offences
Insert after section 36 (1):
(1A) A person must not use any tissue that is removed from the
body of a living person in the course of medical, dental or
surgical treatment carried out in the interests of the health of
the person for any purpose (other than for the purposes of
treating the person) except in accordance with an authority
that is, under this Act, sufficient authority for the
firstmentioned person to use the tissue for that purpose.
Maximum penalty: 40 penalty units or imprisonment for 6
months, or both.
[28] Section 36 (2A)
Insert after section 36 (2):
(2A) A person must not use any tissue that is removed from the
body of a deceased person for the purposes of a post-mortem
examination for any purpose (other than the purposes of that
examination) except in accordance with an authority that is,
under this Act, sufficient authority for the firstmentioned
person to use the tissue for that purpose.
Maximum penalty: 40 penalty units or imprisonment for 6
months, or both.
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Human Tissue Act 1983 Schedule 2
[29] Section 36 (4)
Omit section 36 (4). Insert instead:
(4) Subsections (1), (2) and (2A) do not apply to or in respect of
anything authorised by or under:
(a) the Coroners Act 1980, or
(b) the Anatomy Act 1977, or
(c) any other law.
[30] Section 39 Regulations
Insert after section 39 (1):
(1A) In particular, the regulations may make provision for or with
respect to the following:
(a) the making and keeping of records in connection with
the removal of tissue from the body of a person
(whether living or deceased), including the removal of
tissue in the course of medical, dental or surgical
treatment, and the retention or use of the tissue for any
purposes,
(b) the making and keeping of records in connection with
the use of any deceased person's body for any
therapeutic, medical or scientific purposes under an
authority under this Act,
(c) the information to be provided to the Director-General
of the Department of Health, or to any other specified
person concerned in the administration of this Act,
about any removal, retention or use of tissue from the
body of a person, or any use of a deceased person's
body for any therapeutic, medical or scientific purposes
under an authority under this Act,
(d) the standards to be complied with in connection with
anything authorised by this Act, including by requiring
those standards to be complied with as a condition of an
authority conferred by or under this Act.
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 2 Amendment of Human Tissue Act 1983
[31] Section 39 (4)
Insert after section 39 (3):
(4) The regulations may apply, adopt or incorporate, wholly or in
part and with or without modification, any guidelines or other
document (such as a code of practice), as in force at a
particular time or as in force from time to time, prescribed or
published by the National Health and Medical Research
Council or by any other person or body.
[32] Section 40 and Schedule 1
Insert after section 39:
40 Savings, transitional and other provisions
Schedule 1 has effect.
Schedule 1 Savings, transitional and other
provisions
(Section 40)
Part 1 Preliminary
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
Human Tissue and Anatomy Legislation Amendment Act 2003
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a later
date.
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
Page 44
Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of Human Tissue Act 1983 Schedule 2
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of
Human Tissue and Anatomy Legislation
Amendment Act 2003
2 Appointment of inspectors
An inspector appointed under section 21P before its repeal by
the Human Tissue and Anatomy Legislation Amendment Act
2003 and whose appointment was in force under that section
immediately before that repeal is taken to have been
appointed under section 33A.
Page 45
Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 3 Amendment of other Acts
Schedule 3 Amendment of other Acts
(Section 5)
3.1 Coroners Act 1980 No 27
[1] Section 48 Post mortem or other examination may be ordered by
coroner
Insert after section 48 (1):
(1A) The purpose of the post mortem examination, or other
examination or test, is to assist in the investigation of any of
the following matters, subject to any limitations specified in
the coroner's order:
(a) the identity of the deceased person,
(b) the date and place of death of the deceased person,
(c) the manner or cause of death of the deceased person.
[2] Section 48A Objection to post mortem examination by senior next
of kin
Insert after section 48A (8):
(9) A senior next of kin of a deceased person may, by instrument
in writing, authorise another person to exercise his or her
functions as senior next of kin under this section.
(10) In such a case, the person so authorised:
(a) may make a request referred to in subsection (1) if a
copy of his or her authority to exercise the functions of
the senior next of kin is provided to the coroner or
assistant coroner concerned with that request, and
(b) is taken, for the purposes of this section (other than
subsection (9)), to be the senior next of kin of the
deceased person.
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of other Acts Schedule 3
[3] Section 48AA
Insert after section 48A:
48AA Retention and use of human tissue
(1) An order for a post mortem examination, or other examination
or test, under section 48 or 49 is taken to authorise the removal
and use of tissue from the body of the deceased person for any
of the following purposes:
(a) an investigation by a coroner of the person's death,
(b) an investigation of any offence,
(c) proceedings for any offence.
(2) Such an order is also taken to authorise the following:
(a) the retention of small samples of any of the following
tissue removed from the body of the deceased person
under subsection (1):
(i) bodily fluid,
(ii) skin, hair and nails,
(iii) any other tissue retained in the form of a tissue
slide or tissue block which enables microscopic
examination of the tissue,
(iv) such tissue as may be directed in writing by a
coroner in any particular case,
(b) the use of any sample retained under paragraph (a) for
any of the following purposes:
(i) the exercise by a coroner of his or her functions
under this Act,
(ii) an investigation of any offence,
(iii) any legal proceedings (whether or not in
connection with an offence),
(iv) a purpose authorised by an authority given under
the Human Tissue Act 1983 that is sufficient
authority to use the tissue for that purpose,
(v) in relation to a sample referred to in paragraph (a)
(iii), any medical, therapeutic or scientific
purpose,
(vi) such other purposes as may be prescribed by the
regulations.
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Schedule 3 Amendment of other Acts
(3) This section does not limit the rights of a coroner under
section 24 and does not affect anything authorised by or under
any other law.
(4) In this section:
tissue includes an organ, or part, of a human body and a
substance extracted from, or from a part of, a human body
(including bodily fluid).
[4] Section 53AA
Insert after section 53:
53AA General
In the performance of any post mortem examination, or other
examination or test, under this Part in respect of the remains
of a person, regard is to be had to the dignity of the deceased
person.
3.2 Human Tissue Act 1983 No 164
[1] Section 33C Provisions relating to exercise of powers
Omit "Search Warrants Act 1985" from section 33C (3).
Insert instead "Law Enforcement (Powers and Responsibilities) Act
2002".
[2] Section 33G Search warrants
Omit "authorised justice" wherever occurring from section 33G (1) and
(2).
Insert instead "authorised officer".
[3] Section 33G (3)
Omit "Part 3 of the Search Warrants Act 1985".
Insert instead "Division 4 of Part 5 of the Law Enforcement (Powers and
Responsibilities) Act 2002".
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Human Tissue and Anatomy Legislation Amendment Bill 2003
Amendment of other Acts Schedule 3
[4] Section 33G (4)
Omit the subsection. Insert instead:
(4) In this section:
authorised officer has the same meaning as it has in the Law
Enforcement (Powers and Responsibilities) Act 2002.
3.3 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
Schedule 2 Search warrants under other Acts
Insert in alphabetical order of Acts "Human Tissue Act 1983, section
33G".
3.4 Search Warrants Act 1985 No 37
Section 10 Definitions
Insert in the definition of search warrant in alphabetical order of Acts:
section 33G of the Human Tissue Act 1983,
Page 49
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