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