Health Administration Act 1982 (NSW)

Health Administration Act 1982 No 135 An Act to establish a Department of Health and certain other bodies; to vest certain functions in the Minister for Health and certain other bodies and persons; to provide for the transfer of certain employees; to repeal the Health Commission Act 1972; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Health Administration Act 1982. 2 Commencement (1) Sections 1, 2, 33 and 34 and Schedule 3 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 (Repealed) 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— Corporation means the Health Administration Corporation constituted by section 9. Foundation means the New South Wales Health Foundation constituted by section 16. Health Secretary means the Secretary of the Ministry. health service means any medical, hospital, ambulance, paramedical, community health or environmental health service or any other service (including any service of a prescribed class or description) relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or injury to persons. local health district means a local health district constituted under the Health Services Act 1997. Ministry means the Ministry of Health. regulations means regulations under this Act. (1A) The expression "NSW Health" may be used to describe the Corporation, the Ministry and any other body and organisation under the control and direction of the Minister or the Health Secretary. (2) A reference in this Act to an ambulance service is a reference to a service relating to the work of rendering first aid to, and the transport of, sick and injured persons. (3) A reference in this Act to— (a) a function includes a reference to a power, authority and duty, and (b) the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. Part 2 Administration Division 1 The Minister 5 Functions of the Minister (1) The Minister may formulate general policies, in accordance with which the functions of the Minister, Ministry, Health Secretary, Corporation and Foundation are to be exercised, for the purpose of promoting, protecting, developing, maintaining and improving the health and well-being of the people of New South Wales to the maximum extent possible having regard to the needs of and financial and other resources available to the State. (2) The Minister may— (a) provide, conduct, operate and maintain and, where necessary, improve and extend any health service or any ancillary or incidental service and arrange for the construction of any buildings or works necessary for or in connection with any such service, (b) enter into any agreement or arrangement for any other person to provide, conduct, operate and maintain any health service, and (c) do such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of the functions under the foregoing provisions of this subsection. (3) Nothing in this section takes away or affects any function that the Minister has apart from this section. 5A Exercise of Minister's functions through Corporation, joint ventures or other associations (1) A function of the Minister may, if the Minister so determines, be exercised— (a) by the Corporation, or (b) by the Minister (or by the Corporation) in a partnership, joint venture or other association with other persons or bodies. (2) A function of the Minister that is exercisable in relation to anything belonging to, or controlled by, the Minister is also exercisable in relation to anything belonging to, or controlled by, the Corporation. (3) Nothing in this section prevents the Minister from exercising a function in his or her capacity as the Minister and entering into contracts or doing other things on behalf of the Crown. Division 2 6, 7 (Repealed) Division 3 The Health Secretary 8 Functions of the Health Secretary (1) The Health Secretary shall have and may exercise such functions as are conferred or imposed on the Health Secretary by or under this or any other Act. (2) The Health Secretary shall have and may exercise the following functions— (a) to initiate, promote, commission and undertake surveys and investigations into— (i) the health needs of the people of New South Wales, (ii) the resources of the State available to meet those needs, and (iii) the methods by which those needs should be met, (b) to inquire into the nature, extent and standards of the health services, facilities and personnel required to meet the health needs of the people of New South Wales and to determine the cost of meeting those needs, (c) to plan the provision of comprehensive, balanced and co-ordinated health services throughout New South Wales, (d) to formulate the programs and methods by which the health needs of the people of New South Wales may be met, (e) to undertake, promote and encourage research in relation to any health service, (f) to facilitate the provision of health services by any council (within the meaning of the Local Government Act 1993) or by any other body or person, (g) to facilitate the provision by any Public Service agency, statutory authority, other body or person of social welfare services necessary or desirable to complement any health service, (h) to promote and facilitate the provision of the professional, technical or other education or training of any persons employed or to be employed in the provision of any health service, (i) to promote and facilitate a system of health care for the people of New South Wales provided by private bodies, institutions, associations and persons, as well as by the State and public bodies, (j) to do such supplemental, incidental or consequential acts as may be necessary or expedient for the exercise of the Health Secretary's functions under the foregoing provisions of this subsection. (3) The Health Secretary is, in the exercise of functions conferred or imposed on the Health Secretary by or under any Act administered by the Minister for Health, subject to the control and direction of the Minister, except in relation to the contents of a recommendation or report made by the Health Secretary to the Minister. 8A Exercise of Health Secretary's functions through Corporation, joint ventures or other associations (1) A function of the Health Secretary may, if the Health Secretary so determines, be exercised— (a) by the Corporation, or (b) by the Health Secretary (or by the Corporation) in a partnership, joint venture or other association with other persons or bodies. (2) A function of the Health Secretary that is exercisable in relation to anything belonging to, or controlled by, the Health Secretary is also exercisable in relation to anything belonging to, or controlled by, the Corporation. (3) Nothing in this section prevents the Health Secretary from exercising a function in his or her capacity as the Health Secretary and entering into contracts or doing other things on behalf of the Crown. Division 4 The Corporation 9 Corporation (1) The Health Secretary is, for the purpose of exercising the functions expressed to be conferred or imposed on the Corporation by or under this or any other Act, hereby incorporated as a corporation sole with the corporate name "Health Administration Corporation". (2) The Corporation— (a) has perpetual succession, (b) shall have an official seal, (c) may take proceedings, and be proceeded against in its corporate name, (d) subject to this Act, may, for the purposes for which it is constituted, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, (e) may do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for or incidental to the purposes for which the Corporation is constituted, and (f) is, for the purpose of any Act, a statutory body representing the Crown. (2A) However, the Corporation cannot employ any staff. Note— Staff may be employed under Part 1 of Chapter 9 of the Health Services Act 1997 in the NSW Health Service to enable the Corporation to exercise its functions under this or any other Act. (3) The regulations may make provision for or with respect to— (a) the custody and use of the seal of the Corporation, and (b) the keeping of records concerning the acts, decisions and proceedings of the Corporation. (4) All courts and persons acting judicially— (a) shall take judicial notice of the seal of the Corporation that has been affixed to any instrument or document, and (b) shall, until the contrary is proved, presume that the seal was properly affixed. (5) The Corporation is subject to the control and direction of the Minister. 10 Acquisition of land by Corporation (1) The Corporation, with the approval of the Minister and subject to such terms and conditions as the Minister may attach to the approval, may, for the purpose of the exercise by the Minister, Ministry, Health Secretary, Corporation or Foundation of their functions, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2) Without limiting the generality of subsection (1), the Corporation may acquire in any manner authorised by subsection (1)— (a) any land of which that proposed to be acquired under this section forms part, and (b) any land adjoining or in the vicinity of any land proposed to be acquired under this section. (3) For the purposes of the Public Works Act 1912, any such acquisition of land is taken to be for an authorised work and the Corporation is, in relation to that authorised work, taken to be the Constructing Authority. (4) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act. (5) (Repealed) (6) Nothing in this section affects any operation that the Public Works Act 1912 would have if this section had not been enacted and the Corporation had not been constituted. 11 Disposal of land by Corporation (1) The Corporation may, with the approval of the Minister and subject to such terms and conditions as the Minister may attach to the approval, sell, lease, exchange or otherwise deal with or dispose of land that has been acquired by the Corporation under this or any other Act, or any part thereof, and may, with the like approval and subject to the like terms and conditions, grant easements or rights-of-way over any such land so acquired or any part thereof. (2) The Corporation may request the Minister to give approval to (and the Minister may approve) a disposition of land, being a disposition— (a) that is contrary to a provision of, or a trust arising under, the Crown grant of that land, or (b) that, if this section had not been enacted, may make the land liable to be forfeited to the Crown. (3) If the Minister has given an approval under this section to a disposition of land, the disposition of the land— (a) is not to be regarded as a breach of any provision of, or any trust arising under, the Crown grant of that land, and (b) does not make the land liable to be forfeited to the Crown. 12 Power to accept gifts etc (1) The Corporation may acquire, for any purpose connected with— (a) the provision of any health service, or (b) any of the functions of the Minister, Ministry, Health Secretary or Corporation, any property by gift, devise or bequest and may agree to and carry out the conditions of any such gift, devise or bequest. (2) The rule of law against remoteness of vesting shall not apply to any such condition to which the Corporation has agreed. 13 Contracts of Corporation (1) The Corporation may make and enter into contracts or agreements with any person for the performance of services, or for the supply of goods, plant, machinery or material with respect to the exercise by the Minister, Ministry, Health Secretary, Corporation or Foundation of their functions under this or any other Act. (2) Any such contract or agreement shall be deemed, for the purposes of the Constitution Act 1902, to be a contract or agreement for or on account of the Public Service of New South Wales. (3) The Corporation may, on such terms and conditions as may be agreed upon, sell or let out on hire any goods, plant, machinery or material acquired by it under this or any other Act. 13A Corporation to manage accounts of health professional councils (1) The Corporation is to establish in the Special Deposits Account in the Treasury a separate account in respect of each of the health professional councils established under section 41B of the Health Practitioner Regulation National Law (NSW). (2) There is to be paid into each such account— (a) the money transmitted to the Corporation in accordance with the Health Practitioner Regulation National Law (NSW), and (b) any other money which may lawfully be paid into the account. (3) The Corporation may pay out of such an account— (a) amounts required to meet the costs incurred in the administration or execution of the Health Practitioner Regulation National Law (NSW) and the regulations made under that Law, and (b) amounts necessary to meet any costs associated with the employment of NSW Health Service staff to enable the Corporation to exercise its functions in respect of that council. (3A) For the purposes of section 60 (1) of the Government Sector Employment Act 2013, the Corporation is taken to be the statutory body in respect of which persons are employed under Part 4 of that Act to enable a health professional council established under section 41B of the Health Practitioner Regulation National Law (NSW) to exercise its functions. Accordingly, the Corporation is authorised to pay out of an account under this section any employment-related costs that the Corporation is directed to pay under section 60 (1) of that Act. (4) The Corporation may invest money in such an account— (a) if the Corporation is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Corporation is permitted to invest money under that Part, or (b) if the Corporation is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Treasurer. (5) The interest or profits accruing from any such investment are to be paid into the relevant account. 14, 15 (Repealed) Division 5 The Foundation 16 Foundation (1) There is hereby constituted a Corporation with the corporate name "New South Wales Health Foundation". (2) The affairs of the Foundation shall be managed by the Minister. (3) Any act, matter or thing done in the name of, or on behalf of, the Foundation by the Minister, or with the authority of the Minister, shall be deemed to have been done by the Foundation. (4) The Foundation— (a) has perpetual succession, (b) shall have an official seal, (c) may take proceedings, and be proceeded against, in its corporate name, (d) subject to this Act, may, for the purposes for which it is constituted, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, (e) may do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for or incidental to the purposes for which the Foundation is constituted, and (f) is, for the purposes of any Act, a statutory body representing the Crown. (5) The regulations may make provision for or with respect to— (a) the custody and use of the seal of the Foundation, and (b) the keeping of records concerning the acts, decisions and proceedings of the Foundation. (6) All courts and persons acting judicially— (a) shall take judicial notice of the seal of the Foundation that has been fixed to any instrument or document, and (b) shall, until the contrary is proved, presume that the seal was properly affixed. 17 Functions of the Foundation (1) The Foundation shall have and may exercise the functions conferred or imposed on it by or under this or any other Act. (2) The Foundation may provide funds and make grants, and provide other support, for any purpose connected with— (a) the provision of any health service, or (b) any of the functions of the Minister, Ministry, Health Secretary or Corporation. (3) The Foundation may, subject to such terms and conditions as it thinks appropriate, give or make available real or personal property (with or without consideration) to or for any person, body or organisation who or which provides any health service. (4) The Foundation may promote and facilitate the raising of funds by means of public appeal or otherwise by any body, institution, association or person for the purposes of subsection (2) or (3). 18 Power to accept gifts etc (1) The Foundation may acquire, for the purposes for which it is constituted, any property by gift, devise or bequest and may agree to and carry out the conditions of any such gift, devise or bequest. (2) The rule of law against remoteness of vesting shall not apply to any such condition to which the Foundation has agreed. (3) The Foundation may act as trustee of money or other property vested in the Foundation upon trust. (4) The Corporation may, with the approval of the Minister, declare, by instrument published in the Gazette, any specified property (including money) acquired by the Corporation under section 12 to be property to which this subsection applies, and the property thereupon becomes vested in the Foundation, and any relevant condition to which the Corporation has agreed shall be deemed to be a condition to which the Foundation has agreed. 19 New South Wales Health Foundation Fund (1) There shall be established and kept in the Treasury an account in the Special Deposits Account to be called the "New South Wales Health Foundation Fund" (referred to in this section as the Fund). (2) The Fund shall consist of any money received from any source by the Foundation. (3) There may be paid out of the Fund— (a) all charges, costs and expenses incurred by or with the authority of the Minister in the administration of the Foundation, and (b) all funds and grants provided, and other payments made, by the Foundation in the exercise of its functions. (4) Any money acquired by the Foundation is taken to be government money for the purposes of the Government Sector Audit Act 1983 and Government Sector Finance Act 2018. Division 6 Councils, committees and advisory bodies 20 Appointment of advisory bodies (1)–(3) (Repealed) (4) The Minister may appoint such councils, committees and advisory bodies as the Minister may consider appropriate. (5) A council, committee or advisory body appointed under this section shall have such functions as the Minister may from time to time direct. (6) A council, committee or advisory body appointed under this section shall consist of a person appointed as Chairperson by the Minister and such other persons appointed by the Minister as the Minister thinks fit. (7) The Chairperson and other members so appointed shall hold office for such term as the Minister may specify in respect of each of them in the instruments of their appointment and any such appointment may be terminated by the Minister at any time. (8) The Chairperson and any other member of a council, committee or advisory body appointed under this section shall each be entitled to be paid such fees and allowances (if any) as may be from time to time determined in respect of the Chairperson or member by the Minister. (9) The office of a member of a council, committee or advisory body appointed under this section shall, for the purposes of any Act, be deemed not to be an office or place of profit under the Crown. Division 6A Medical Services Committee 20A Definitions In this Division— Committee means the Medical Services Committee established under section 20B. legislation means legislation of New South Wales, and includes regulations or by-laws made under any Act. patient means a patient or prospective patient of a medical practitioner or of a hospital. subcommittee means a subcommittee of the Committee. 20B Establishment of Medical Services Committee (1) There is hereby established a committee, to be called the "Medical Services Committee". (2) The Committee shall consist of 10 medical practitioners, being— (a) a Chairperson appointed as such by the Minister on the nomination of the Committee, and (b) 9 other members appointed by the Minister, of whom— (i) 4 shall be appointed on the nomination of the Council of the Australian Medical Association (NSW) Limited, one of whom shall be a general practitioner and one of whom shall be a salaried medical officer, (ii) 2 shall be appointed on the nomination of the New South Wales State Committee of the Australian Association of Surgeons, one of whom shall be a salaried specialist, (iii) 1 shall be appointed on the nomination of the New South Wales State Committee of the Australian Society of Orthopaedic Surgeons, (iv) 1 shall be appointed on the nomination of the New South Wales Section of the Australian Society of Anaesthetists or the appropriate executive body of that Section, and (v) 1 shall be appointed on the nomination of the Internal Medicine Society of Australia & New Zealand Incorporated. (3) The Committee may, after consultation with the Minister, appoint subcommittees of the Committee for the purpose of advising, consulting with and assisting the Committee, and persons may be appointed as members of such a subcommittee whether or not they are members of the Committee. (4) The members of a subcommittee shall hold office for such term as the Committee may specify in respect of each of them in the instruments of their appointment and any such appointment may be terminated by the Committee at any time. (5) The office of a member of the Committee or of a subcommittee shall, for the purposes of any Act, be deemed not to be an office or place of profit under the Crown. (6) Schedule 4 has effect with respect to the Committee. 20C Functions of Medical Services Committee etc (1) The functions of the Committee are to advise and consult with the Minister and employees of the Ministry as to— (a) matters affecting the practice of medicine in New South Wales (other than matters arising under State industrial instruments and other industrial matters within the meaning of the Industrial Relations Act 1996), and (b) in particular— (i) existing and proposed legislation, including proposed amendments to existing legislation, affecting or likely to affect patients or medical practitioners or both, in their respective capacities as such, and (ii) existing and proposed administrative arrangements, including proposed changes to existing administrative arrangements, affecting or likely to affect patients or medical practitioners or both, in their respective capacities as such. (2) The Committee shall have such other functions as the Minister may from time to time determine or as are conferred on it by or under this or any other Act. (3) A notice may be served on the Committee in any of the following ways— (a) by instrument in writing served on the Chairperson of the Committee, (b) in such manner as the Committee from time to time determines and communicates to the Minister, (c) in such manner as may be prescribed. Division 6B Quality assurance committees 20D Definitions In this Division— Committee means a committee declared to be an approved quality assurance committee under section 20E. prescribed establishment means— (a) any public hospital or public health organisation within the meaning of the Health Services Act 1997, or (b) (Repealed) (c) an establishment, college, association or other body (other than an industrial or trade union) prescribed by the regulations. service means a health service, and includes any administrative or other service related to a health service. 20E Approved quality assurance committees (1) The Minister may, by order published in the Gazette, declare that a specified committee established by a prescribed establishment is an approved quality assurance committee for the purposes of this Division. (2) The Minister is not to make such a declaration unless the Minister is satisfied that— (a) the committee is established by or within a prescribed establishment in accordance with the rules or official procedures of the establishment, and (b) its functions are to assess and evaluate services provided by one or more prescribed establishments (whether or not provided by the establishment which established the committee), to report and make recommendations concerning those services and to monitor the implementation of its recommendations, and (c) the committee comprises individuals with training and experience appropriate to the services to be assessed and evaluated by the committee, and (d) the exercise of those functions would be facilitated by the provision of immunities and protections afforded by this Division, and (e) it is in the public interest to restrict the disclosure of information compiled by the committee in the course of the exercise of those functions. 20F Restrictions on Committees (1) A Committee does not have authority to conduct an investigation relating to the competence of an individual in providing services. (2) A report furnished or information made available by a Committee must not disclose the identity of an individual who is a provider or recipient of services unless the individual has consented in writing to that disclosure. (3) A Committee is to have regard to the rules of natural justice in so far as they are relevant to the functions of a Committee. 20G Disclosure etc of information A person who is or was a member of a Committee must not make a record of, or divulge or communicate to any person, any information acquired by the person as such a member, except— (a) for the purpose of exercising the functions of a member, or (b) in accordance with the provisions of the regulations as to the furnishing of reports to the Minister or to a prescribed establishment or the making available of information to the public. Maximum penalty—50 penalty units. 20H Information not to be given in evidence (1) A person who is or was a member of a Committee is neither competent nor compellable— (a) to produce before any court, tribunal, board or person any document in his or her possession or under his or her control that was created by, at the request of or solely for the purpose of the Committee, or (b) to divulge or communicate to any court, tribunal, board or person any matter or thing that came to the person's notice as such a member. (2) Subsection (1) does not apply to a requirement made in proceedings in respect of any act or omission by a Committee or by a member of a Committee as a member. 20I Findings of Committee not evidence of certain matters A finding or recommendation by a Committee as to the need for changes or improvements in relation to a procedure or practice is not admissible as evidence in any proceedings that the procedure or practice is or was careless or inadequate. 20J Personal liability of members etc (1) Anything done by a Committee, a member of a Committee or any person acting under the direction of a Committee, in good faith for the purposes of the exercise of the Committee's functions, does not subject such a member or person personally to any action, liability, claim or demand. (2) Without limiting subsection (1), a member of a Committee has qualified privilege in proceedings for defamation in respect of— (a) any statement made orally or in writing in the exercise of the functions of a member, or (b) the contents of any report or other information published by the Committee. (3) The members of a Committee are, and are entitled to be, indemnified by the prescribed establishment that established the Committee in respect of any costs incurred in defending proceedings in respect of a liability against which they are protected by this section. 20K Regulations relating to Committees The regulations may make provision for or with respect to— (a) the procedure of Committees and the manner in which they are to exercise their functions, and (b) permitting or requiring Committees to make specified information available to the public, and (c) permitting or requiring Committees to furnish reports concerning their activities to the Minister and to prescribed establishments. Division 6C 20L–20U (Repealed) Division 7 Delegation 21 Delegation (1) The Minister, Health Secretary or Corporation may, by instrument in writing, under seal (in the case of the Corporation), delegate such of their functions (other than this power of delegation) conferred or imposed by or under this or any other Act as are specified in the instrument to any person, and may, by such an instrument, revoke wholly or in part any such delegation. (2) A delegation under subsection (1) may be made to— (a) a specified person (whether a natural person or a corporation), or (b) a person for the time being holding a specified office. (3) Except in so far as the instrument of delegation otherwise provides, a person to whom a function has been delegated under subsection (1) may— (a) in the case of a natural person—by writing under the person's hand, or (b) in the case of a corporation—by writing under its seal, authorise another person to exercise the function so delegated, and may, in like manner, revoke wholly or in part any such authority. (4) An authority under subsection (3) may be given to— (a) a specified person, or (b) a person for the time being holding a specified office. (5) Any act or thing done or suffered in the exercise of a function by a person to whom the function has been delegated under subsection (1) or by a person authorised by the delegate under subsection (3) to exercise the function has the same force and effect as if it had been done or suffered by the Minister, Health Secretary or Corporation, as the case may require, and shall be deemed to have been done or suffered by the Minister, Health Secretary or Corporation, as the case may require. (6) A delegation under subsection (1) does not prevent the exercise of a function by the Minister, Health Secretary or Corporation, as the case may require. (7) The giving of an authority under subsection (3) does not prevent the exercise of a function by the person by whom the authority was given. (8) A docum