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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Health Services (Further Amendment) Act 1998
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. Definitions 2
5. New interpretation provision inserted 5
5A. Interpretation: trust instruments 5
6. Medicare principles 5
PART 2A--PUBLIC HOSPITAL SERVICES PRINCIPLES 5
17AA. Public hospital services principles 5
7. Removal of directors 6
8. Amalgamated registered funded agencies 6
9. Aggregated hospitals 7
10. New section 65FA inserted 8
65FA. Trusts in relation to aggregated hospitals 8
11. Multi purpose services 8
12. New section 157F inserted 13
157F. Supreme Court--limitation of jurisdiction 13
13. New sections 177 and 178 inserted 13
177. Transitional provisions (1998 amendments) 14
178. Saving provision: validity of things done by trustees 14
14. Repeal of expiry provision 15
15. Charities Act 1978 15
16. Statute law revision 15
NOTES 16
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PARLIAMENT OF VICTORIA
A BILL
to amend the Health Services Act 1988 and for other purposes.
Health Services (Further Amendment)
Act 1998
The Parliament of Victoria enacts as follows:
1. Purposes
The main purposes of this Act are to amend the
Health Services Act 1988--
(a) to provide that trusts in relation to a
5 registered funded agency are not affected by
any amalgamation or aggregation of that
agency or any declaration of a multi purpose
service; and
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(b) to amend the provisions relating to medicare
principles; and
(c) to enable the removal of directors of
metropolitan hospitals during their term of
5 office; and
(d) to make miscellaneous amendments to
provisions relating to multi purpose services
and amalgamated and aggregated bodies.
2. Commencement
10 (1) This Act, except section 6, comes into operation
on the day on which it receives the Royal Assent.
(2) Subject to sub-section (3), section 6 comes into
operation on a day to be proclaimed.
(3) If section 6 does not come into operation before
15 1 July 1999, it comes into operation on that day.
3. Principal Act
No. 49/1988. In this Act, the Health Services Act 1988 is
Reprint No. 4
called the Principal Act.
as at 1 April
1998.
Subsequently
amended by
Nos 73/1997,
83/1997,
13/1998,
38/1998,
46/1998 and
52/1998.
4. Definitions
20 In section 3(1) of the Principal Act, insert the
following definitions--
' "former agency" means--
(a) a body that was at any time--
(i) a registered funded agency; or
25 (ii) a multi purpose service; or
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(iii) a body declared to be a multi
purpose service under section
115A(1) or deemed by force of
section 115V(2) to have been so
5 declared; or
(iv) an incorporated institution or a
separate institution within the
meaning of the Hospitals and
Charities Act 1958 or any
10 corresponding previous
enactment--
but the incorporation of which was
cancelled or dissolved or which ceased
to exist--
15 (v) by force of an Order made under
section 115A of this Act; or
(vi) by force of section 115V(2) of this
Act; or
(vii) on its amalgamation or
20 aggregation with another body by
force of a provision of this Act or
of the Hospitals and Charities
Act 1958 or any previous
enactment corresponding to that
25 Act; or
(b) the Cancer Institute or the Cancer
Institute Board under Part II of the
Cancer Act 1958 as in force
immediately before 14 May 1989;
30 "successor agency", in relation to a former
agency, means a body that is by force of a
provision of this Act or of the Hospitals and
Charities Act 1958 or any previous
enactment corresponding to that Act--
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(a) the successor, or deemed to be the
successor, of the former agency; or
(b) deemed to be the same body as the
former agency (whether for all
5 purposes or for the purposes only of a
trust in relation to the former agency)--
whether as a result of the body--
(c) immediately succeeding the former
agency; or
10 (d) succeeding a body that had succeeded
the former agency (immediately or
otherwise) and regardless of the body's
position in any such chain of
succession;
15 "trust", in relation to a body that is--
(a) aggregated or amalgamated with
another body by force of a provision of
this Act or of the Hospitals and
Charities Act 1958 or any previous
20 enactment corresponding to that Act;
(b) declared to be a multi purpose service
under section 115A(1) or deemed by
force of section 115V(2) to have been
so declared; or
25 (c) a former agency of such a body--
means--
(d) a gift, disposition or trust of property
made or declared, or deemed to have
been made or declared; or
30 (e) a trust fund created--
whether by deed, will or otherwise to, or in
favour of, for the use of, or for the purposes
of, the body or under its terms capable of
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being given to, or applied in favour of, for
the use of, or for the purposes of, the body;'.
5. New interpretation provision inserted
After section 5 of the Principal Act insert--
5 "5A. Interpretation: trust instruments
If the terms of an instrument creating a trust
(as defined in section 3(1)) in relation to a
former agency specify particular purposes of
the agency for which the trust is created,
10 then any reference to the purposes of the
former agency is a reference to the purposes
(if any) of the successor agency that
correspond with, or are similar to, those
specified purposes of the former agency.".
15 6. Medicare principles
For Part 2A of the Principal Act substitute--
"PART 2A--PUBLIC HOSPITAL SERVICES
PRINCIPLES
17AA. Public hospital services principles
20 (1) The principles contained in any agreement in
force from time to time between the
Commonwealth and Victoria with respect to
the provision of public hospital services are
established as guidelines for the delivery of
25 public hospital services in Victoria.
(2) Nothing in this Part--
(a) gives rise to, or can be taken into
account in, any civil cause of action;
and
30 (b) without limiting paragraph (a), operates
to create in any person legal rights not
in existence before the commencement
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of section 6 of the Health Services
(Further Amendment) Act 1998.
(3) In this Part, a reference to public hospital
services includes a reference to services
5 provided to public hospital patients by
privately-operated hospitals.".
7. Removal of directors
(1) In section 40G(2) of the Principal Act, after
"director" insert ", or all directors,".
10 (2) In section 40G(3) of the Principal Act, for "may
not recommend the removal of a director of a
board from office unless" substitute "must
recommend the removal of a director of a board
from office if".
15 8. Amalgamated registered funded agencies
(1) In section 65(2) of the Principal Act, at the end of
paragraph (d) insert--
"; and
(e) on and from that date, each registered funded
20 agency to which the Order relates must be
taken, for the purposes of any trust in
relation to that agency, not to have had its
incorporation cancelled or to have ceased to
exist and the new registered funded agency
25 must be taken to be the same body as that
agency for those purposes; and
(f) without limiting the effect of paragraph (e),
on and from that date, an instrument creating
a trust in relation to--
30 (i) a registered funded agency to which the
Order relates; or
(ii) a former agency of which such a
registered funded agency is the
successor agency--
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continues to have effect according to its
tenor as if the trust were in relation to the
new registered funded agency.".
(2) After section 65(5) of the Principal Act insert--
5 "(6) Sub-section (2), as amended by section 8(1)
of the Health Services (Further
Amendment) Act 1998, has effect with
respect to--
(a) an Order made under sub-section (1)
10 before the commencement of that
section of that Act; and
(b) an instrument of a kind referred to in
sub-section (2)(f) of this section--
in the same way as it would if it had been in
15 force as so amended at the time when the
Order was made and must be taken to have
always had that effect on and from that
time.".
9. Aggregated hospitals
20 (1) In section 65D of the Principal Act, at the end of
paragraph (c) insert--
"; and
(d) on and from the effective date of the Order,
an aggregated hospital to which the Order
25 relates must, for the purposes of any trust in
relation to that hospital, be taken not to have
had its incorporation cancelled and the new
hospital must be taken to be the same body
as the aggregated hospital for those
30 purposes.".
(2) At the end of section 65F of the Principal Act
insert--
"(2) Without limiting the effect of sub-section
(1), on and from the effective date of an
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Order under section 65C, an instrument
creating a trust in relation to--
(a) an aggregated hospital to which the
Order relates; or
5 (b) a former agency of which such an
aggregated hospital is the successor
agency--
continues to have effect according to its
tenor as if the trust were in relation to the
10 new hospital.".
10. New section 65FA inserted
After section 65F of the Principal Act insert--
"65FA. Trusts in relation to aggregated hospitals
Sections 65D and 65F, as amended by
15 section 9 of the Health Services (Further
Amendment) Act 1998, have effect with
respect to--
(a) an Order made under section 65C
before the commencement of that
20 section of that Act; and
(b) an instrument of a kind referred to in
section 65F(2)--
in the same way as they would if they had
been in force as so amended at the time when
25 the Order was made and must be taken to
have always had that effect on and from that
time.".
11. Multi purpose services
(1) After section 115A(1) of the Principal Act
30 insert--
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"(1A) Without limiting sub-section (1), an Order
made under that sub-section may provide
that on and from the date specified in the
Order as the date on which the Order takes
5 effect--
(a) all property and rights of a body to
which the Order relates, wherever
located, vest in the multi purpose
service;
10 (b) all liabilities of the body, wherever
located, become liabilities of the multi
purpose service;
(c) the multi purpose service becomes the
successor in law of the body;
15 (d) except for the purposes of any trust in
relation to the body, the incorporation
of the body is cancelled or the body
ceases to exist (as the case requires).
(1B) An Order under sub-section (1) has effect as
20 if, on and from the date specified in the
Order as the date on which the Order takes
effect--
(a) for the purposes of any trust in relation
to the body, the multi purpose service is
25 the same body as the body to which the
Order relates; and
(b) without limiting the effect of paragraph
(a), an instrument creating a trust in
relation to--
30 (i) the body to which the Order
relates; or
(ii) a former agency of which that
body is the successor agency--
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continues to have effect according to its
tenor as if the trust were in relation to
the multi purpose service.".
(2) After section 115A(2) of the Principal Act
5 insert--
"(3) An Order made under this section before the
commencement of section 11(1) of the
Health Services (Further Amendment)
Act 1998 has, and must be taken to have
10 always had, effect as if on and from the date
specified in the Order as the date on which
the Order took effect--
(a) all property and rights of the body to
which the Order relates, wherever
15 located, vested in the multi purpose
service referred to in the Order;
(b) all liabilities of the body, wherever
located, became liabilities of the multi
purpose service;
20 (c) the multi purpose service became the
successor in law of the body;
(d) except for the purposes of any trust in
relation to the body, the incorporation
of the body was cancelled.".
25 (3) At the end of section 115A of the Principal Act
insert--
"(4) On and from the date on which an Order
referred to in sub-section (3) took effect--
(a) for the purposes of any trust in relation
30 to the body, the multi purpose service
referred to in the Order is, and must be
taken to have always been, the same
body as the body to which the Order
relates; and
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(b) without limiting the effect of paragraph
(a), an instrument creating a trust in
relation to--
(i) the body to which the Order
5 relates; or
(ii) a former agency of which that
body is the successor agency--
continues, and must be taken to have
always continued, to have effect
10 according to its tenor as if the trust
were in relation to the multi purpose
service.".
(4) In section 115U(2) of the Principal Act, at the end
of paragraph (d) insert--
15 "; and
(e) on and from that date, each registered funded
agency or multi purpose service to which the
Order relates must be taken, for the purposes
of any trust in relation to that agency or
20 service, not to have had its incorporation
cancelled or to have ceased to exist and the
new body must be taken to be the same body
as that agency or service for those purposes;
and
25 (f) without limiting the effect of paragraph (e),
on and from that date, an instrument creating
a trust in relation to--
(i) a registered funded agency or multi
purpose service to which the Order
30 relates; or
(ii) a former agency of which such a
registered funded agency or multi
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purpose service is the successor
agency--
continues to have effect according to its
tenor as if the trust were in relation to the
5 new body.".
(5) After section 115U(3) of the Principal Act
insert--
"(4) Sub-section (2), as amended by section 11(4)
of the Health Services (Further
10 Amendment) Act 1998, has effect with
respect to--
(a) an Order made under sub-section (1)
before the commencement of that
section of that Act; and
15 (b) an instrument of a kind referred to in
sub-section (2)(f) of this section--
in the same way as it would if it had been in
force as so amended at the time when the
Order was made and must be taken to have
20 always had that effect on and from that
time.".
(6) In section 115V(6) of the Principal Act, at the end
of paragraph (c) insert--
"; and
25 (d) on and from the appointed day, the multi
purpose service must be taken, for the
purposes of any trust in relation to the body
it was before the appointed day, to be the
same body as that body; and
30 (e) without limiting the effect of paragraph (d),
on and from the appointed day, an
instrument creating a trust in relation to--
(i) the body that the multi purpose service
was before the appointed day; or
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(ii) a former agency of which such a body
is the successor agency--
continues to have effect according to its
tenor as if the trust were in relation to the
5 multi purpose service.".
(7) At the end of section 115V of the Principal Act
insert--
"(7) Sub-section (6), as amended by section 11(6)
of the Health Services (Further
10 Amendment) Act 1998, has effect with
respect to--
(a) a declaration that is by force of sub-
section (2) of this section deemed to
have been made; and
15 (b) an instrument of a kind referred to in
sub-section (6)(e) of this section--
in the same way as it would if it had been in
force as so amended at the time that the
declaration was deemed to have been made
20 and must be taken to have always had that
effect on and from that time.".
12. New section 157F inserted
After section 157E of the Principal Act insert--
"157F. Supreme Court--limitation of jurisdiction
25 It is the intention of sections 17AA(2) (as
substituted by section 6 of the Health
Services (Further Amendment) Act 1998)
and 178 to alter or vary section 85 of the
Constitution Act 1975.".
30 13. New sections 177 and 178 inserted
After section 176 of the Principal Act insert--
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'177. Transitional provisions (1998 amendments)
(1) The amendments of section 40G made by
section 7 of the Health Services (Further
Amendment) Act 1998 apply to any person
5 holding office as director of a board of a
metropolitan hospital immediately before the
commencement of that section as well as to
directors appointed on or after that
commencement.
10 (2) The amendments of this Act made by the
Health Services (Further Amendment)
Act 1998 (other than sections 6 and 7 of that
Act) apply with respect to a trust (as defined
in section 3(1)) in relation to a body, whether
15 the trust was created before, on or after the
commencement of section 13 of that Act.".
178. Saving provision: validity of things done by
trustees
(1) Anything done or omitted to be done before
20 the commencement day by a trustee of a trust
(as defined in section 3(1)) that would not
have constituted a breach of trust had the
Health Services (Further Amendment)
Act 1998 been enacted at the time at which
25 the thing was done or omitted to be done is
not to be regarded as constituting a breach of
trust and the trustee is not liable for breach
of trust on account of that act or omission.
(2) Nothing effected by the Health Services
30 (Further Amendment) Act 1998 is to be
regarded as making a trustee of a trust (as
defined in section 3(1)) liable for breach of
trust on account of anything done or omitted
to be done before the commencement day by
35 the trustee that would not have constituted a
breach of trust had the Health Services
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s. 14
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(Further Amendment) Act 1998 never
been enacted and on and from that day the
trustee is not liable for breach of trust on
account of that act or omission.
5 (3) In this section "commencement day"
means the day on which section 13 of the
Health Services (Further Amendment)
Act 1998 comes into operation.'.
14. Repeal of expiry provision
No. 99/1998.
10 Section 22 of the Miscellaneous Acts (Health
and Justice) Amendment Act 1995 is repealed.
15. Charities Act 1978
No.
(1) In section 2(3) of the Charities Act 1978, after 9227/1978.
"scheme" insert ", by or under an Act". Reprint No. 1
as at
2 December
1992.
15 (2) After section 2(4) of the Charities Act 1978
insert--
"(5) This section applies to an alteration or
regulation by or under an Act of the original
purposes of a gift made before, on or after
20 the commencement of section 15(1) of the
Health Services (Further Amendment)
Act 1998.".
16. Statute law revision
In sections 115N and 115T(2) of the Principal
25 Act, for "Chief General Manager" substitute
"Secretary".
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
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