New South Wales: Health Services Act 1997 (NSW)

Health Services Act 1997 No 154 An Act to regulate the public health system of New South Wales; to repeal the Area Health Services Act 1986 and the Public Hospitals Act 1929; to amend various other Acts; and for other purposes. Chapter 1 Preliminary Introduction. This Chapter contains provisions that are helpful in understanding the Act as a whole. It also contains some machinery provisions. 1 Name of Act This Act is the Health Services Act 1997. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of the Act have the meanings set out in the Dictionary. Note. Expressions used in this Act (or a particular provision of this Act) that are defined in the Interpretation Act 1987 have the meanings set out in that Act. 4 Objects of Act The objects of this Act are— (a) to establish a system of local health districts for the whole of the State to deliver health services and to enable their recognition as health networks for the purposes of the National Health Reform Agreement, and (b) to constitute statutory health corporations to deliver health services and health support services other than on the basis of a specified area, and (c) to recognise as affiliated health organisations certain non-government institutions and organisations that provide health services and health support services within the State that contribute significantly to the public health system, and (c1) to enable the recognition of some statutory health corporations and affiliated health organisations as health networks for the purposes of the National Health Reform Agreement, and (d) to re-affirm the adoption of the Medicare Principles and Commitments as guidelines for the delivery of public hospital services (within the meaning of section 23E of the Health Insurance Act 1973 of the Commonwealth) and to facilitate the collection of fees from patients of public health organisations in respect of services received by them that are not required to be provided free of charge under the Medicare Agreement, and (e) to regulate the conditions of contracts of visiting medical officers appointed by public health organisations, and (f) to facilitate transfers of staff within the public health system and to avoid unnecessary staff redundancies, and (g) to require visiting practitioners and staff in the public health system to disclose any charge or conviction for a serious sex or violence offence or of a misconduct finding (such as findings of professional misconduct or unsatisfactory professional conduct), and (h) to specify the action that may be taken in relation to convictions for serious sex or violence offences committed by visiting practitioners or staff in the public health system, and (i) to make provision for the funding of public health organisations, and (j) to facilitate the efficient and effective administration of the public health system generally by providing mechanisms for such matters as inquiries, inspections and transfers of resources. 5 Notes Introductions to Chapters and other notes included in this Act are explanatory notes and do not form part of this Act. Chapter 2 Structure of the public health system 6 What is the public health system? For the purposes of this Act, the public health system consists of— (a) all the local health districts, and (b) all the statutory health corporations, and (c) all the affiliated health organisations in respect of their recognised establishments and recognised services, and (d) the Health Secretary in respect of the provision of ambulance services under Chapter 5A and the provision of services under Part 1A of Chapter 10. 7 What is a public health organisation? A public health organisation is— (a) a local health district, or (b) a statutory health corporation, or (c) an affiliated health organisation in respect of its recognised establishments and recognised services. 8 What is a local health district? (1) A local health district is a local health district constituted under section 17 and specified from time to time in Schedule 1. (2) The principal reason for constituting local health districts is to facilitate the conduct of public hospitals and health institutions and the provision of health services for residents of the areas of the State in respect of which the districts are constituted. 9 Primary purposes of local health districts (cf AHS Act s 19) The primary purposes of a local health district in its area are as follows— (a) to provide relief to sick and injured persons through the provision of care and treatment, (b) to promote, protect and maintain the health of the community. 10 Functions of local health districts (cf AHS Act ss 19 and 20) The functions of a local health district are as follows— (a) generally to promote, protect and maintain the health of the residents of its area, (b) to conduct and manage public hospitals, health institutions, health services and health support services under its control, (c) to give residents outside its area access to such of the health services it provides as may be necessary or desirable, (d) to achieve and maintain adequate standards of patient care and services, (e) to ensure the efficient and economic operation of its health services and health support services and use of its resources, (f) generally to consult and co-operate (as it considers appropriate) with any one or more of the following— (i) the Health Care Complaints Commission constituted under the Health Care Complaints Act 1993, (ii) health professionals practising in its area, (iii) other individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the promotion, protection and maintenance of health, (f1) to co-operate with other local health districts and the Health Secretary in relation to the provision of services involving more than one public health organisation or on a State-wide basis, (g) to investigate and assess health needs in its area, (h) to plan future development of health services in its area, and, towards that end— (i) to consult and plan jointly with the Ministry of Health and such other organisations as it considers appropriate, and (ii) to support, encourage and facilitate the organisation of community involvement in the planning of those services, and (iii) to develop strategies to facilitate community involvement in the planning of those services and to report on the implementation of those strategies in annual reports and to the Minister, (i) to establish and maintain an appropriate balance in the provision and use of resources for health protection, health promotion, health education and treatment services, (j) to provide services to persons with whom it has contracted or entered into an agreement under section 37(2), (k) to administer funding for recognised establishments and recognised services of affiliated health organisations where that function has been delegated to it by the Minister under section 129, (l) to provide training and education relevant to the provision of health services, (m) to undertake research and development relevant to the provision of health services, (n) to make available to the public information and advice concerning public health and the health services available within its area, (o) to carry out such other functions as are conferred or imposed on it by or under this or any other Act or as may be prescribed by the regulations. 11 What is a statutory health corporation? (1) A statutory health corporation is a statutory health corporation constituted under section 41 and specified from time to time in Schedule 2. (2) The principal reason for constituting statutory health corporations is to enable certain health services and health support services to be provided within the State other than on an area basis. Note. Statutory health corporations are intended to replace the system of incorporated hospitals and corporatised boards of directors of associated organisations established under Part 4 and Division 2 of Part 5A of the Public Hospitals Act 1929 respectively. 12 Functions of statutory health corporations (cf PH Act ss 27A and 29I) A statutory health corporation has the following functions— (a) to conduct public hospitals or health institutions or to provide health services or health support services (or any combination of these), (b) to conduct such public hospitals and health institutions and provide such health services or health support services as the Minister determines from time to time under section 53, (c) to achieve and maintain an adequate standard in the conduct of any public hospital or health institution, or the provision of a health service or health support service, under its control, (d) to ensure the efficient and economic operation of any such public hospital, health institution, health service or health support service, (e) to carry out such other functions as are conferred or imposed on it by or under this or any other Act or as may be prescribed by the regulations. 13 What is an affiliated health organisation? (1) An affiliated health organisation is an organisation or institution that is an affiliated health organisation under section 62. (2) An organisation or institution is an affiliated health organisation only in relation to any of its recognised establishments or recognised services. Note. The Dictionary defines a recognised establishment of an affiliated health organisation to mean a hospital or health institution of the organisation that is listed in column 2 of Schedule 3 next to its name. It also defines a recognised service of an affiliated health organisation to mean a health service or health support service of the organisation that is listed in column 2 of Schedule 3 next to its name. (3) The principal reason for recognising affiliated health organisations is to enable certain non-profit, religious, charitable or other non-government organisations and institutions to be treated as part of the public health system where they control hospitals, health institutions, health services or health support services that significantly contribute to the operation of that system. Note. Affiliated health organisations are intended to replace the system of separate institutions and associated organisations recognised under Part 5AA and section 29B(1)(a) of the Public Hospitals Act 1929, respectively. 14 Functions of affiliated health organisations (cf PH Act s 29AD) The functions of an affiliated health organisation are as follows— (a) to achieve and maintain an adequate standard in the conduct of its recognised establishments and the provision of its recognised services, (b) to ensure the efficient and economic operation of those establishments and services, (c) to carry out such other functions as are conferred or imposed on it by or under this or any other Act or as may be prescribed by the regulations. 15 What is a public hospital? A public hospital is— (a) a hospital controlled by a local health district, or (b) a hospital controlled by a statutory health corporation, or (c) a hospital that is a recognised establishment of an affiliated health organisation, or (d) a hospital controlled by the Crown (including the Minister or the Health Administration Corporation). Note. Clause 2 of Part 2 of the Dictionary provides that a reference in this Act to a hospital controlled by a public health organisation or any other body or person includes a reference to a hospital that is conducted by or on behalf of such an organisation, body or person. 16 (Repealed) Chapter 3 Local health districts Part 1 Constitution of local health districts 17 Constitution of local health districts (1) There are constituted by this section such local health districts as are specified from time to time in column 1 of Schedule 1. (2) A local health district is a body corporate with the corporate name specified in column 1 of Schedule 1. 18 Areas in respect of which local health districts constituted (cf AHS Act ss 4 and 7) (1) The area in respect of which a local health district is constituted is— (a) if the area comprises a local government area (or part of a local government area) or a local government area constituted as a city (or a part of such a city)—the local government area (or part of a local government area) or city (or part of a city) described in column 2 of Schedule 1 in relation to the local health district, or (b) if the area comprises an area other than a local government area (or part of a local government area)—the area described in any manner (including by reference to a description contained in another document) in column 3 of Schedule 1 in relation to the local health district. (2) A reference in column 2 of Schedule 1 to a part of a local government area is a reference to such part of the local government area as is described by the regulations for the purposes of that reference. (3) A reference in column 3 of Schedule 1 to the unincorporated area is a reference to such part of the land within the Western Division of the State as is not within a local government area. 19 Amendment of Schedule 1 (Names and areas of local health districts) (cf AHS Act ss 6 and 8) (1) The Governor may, by order published on the NSW legislation website— (a) amend column 1 of Schedule 1 by inserting, altering or omitting the name of a local health district, or (b) amend column 2 or 3 (or both) of Schedule 1 by inserting, altering or omitting a description of the area in respect of which a local health district is (or was) constituted, or (c) omit Schedule 1 and insert instead a Schedule containing the names of local health districts and descriptions of the areas in respect of which the local health districts are constituted. (2) If an area in respect of which a local health district is constituted— (a) is described by reference to a local government area that is constituted as a city, and (b) the name of the city (but not the boundaries) is changed, a reference in column 2 of Schedule 1 to the old name of the city is taken to include a reference to the new name of the city. (3) The boundaries of the area in respect of which a local health district that is described by reference to any local government area or part of any local government area are unaffected by a change in the boundaries of the local government area and, for that purpose, the boundaries of the local government area are taken to remain the same as they were when reference to the local government area was included in column 2 of Schedule 1. 20 Dissolution, amalgamation or change of name of local health districts (cf AHS Act s 9) (1) The Governor may, by order published on the NSW legislation website— (a) dissolve a local health district, or (b) amalgamate 2 or more local health districts, or (c) change the name of a local health district, and may, in the order, amend Schedule 1 accordingly. (2) An order under this section must specify the date (being a date that is on or after the date it is published on the NSW legislation website) on which it takes effect. However, if no date is specified in the order, the order is taken to have specified the date on which it is published on the NSW legislation website as the date on which it takes effect. (3) An order is not to be made under this section unless the Minister is of the opinion that the order is in the public interest and has recommended to the Governor that the order be made. (4) A dissolution, amalgamation or change of name under this section may be effected without holding an inquiry. Note. Part 3 of Chapter 10 provides for the transfer by order of the Governor of public hospitals, health institutions, health services, health support services and property between local health districts and statutory health corporations. Section 116 provides for the transfer of staff between public health organisations. 21 Consequential and transitional provisions on the making of orders (cf AHS Act s 10) (1) Schedule 4 has effect with respect to orders made under this Part. (2) An order under this Part may contain provisions, not inconsistent with the provisions of or made under Schedule 4, of a savings and transitional nature consequent on the making of the order. 22 Provisions relating to the corporate nature of local health districts (cf AHS Act s 11) (1) A local health district— (a) has perpetual succession, and (b) is to have an official seal, and (c) may take proceedings, and be proceeded against, in its corporate name, and (d) 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 local health district is constituted, and (e) does not represent the Crown. Note. Section 150(1) of the Evidence Act 1995 provides for judicial notice to be taken in relation to a seal of any body established under an Act. (2) However, a local health district cannot employ any staff. Note. Staff may be employed under Part 1 of Chapter 9 in the NSW Health Service to enable a local health district to exercise its functions. Part 2 Control and management of local health districts Division 1 The chief executive 23 Appointment of chief executive (1) A chief executive is to be appointed for each local health district by the local health district board with the concurrence of the Health Secretary. (2) Any such chief executive is employed in the NSW Health Service and is a NSW Health Service senior executive. 24 Chief executive to manage and control affairs of local health district (1) The affairs of a local health district are to be managed and controlled by the chief executive of the district. (2) Any act, matter or thing done in the name of, or on behalf of, a local health district by its chief executive is taken to have been done by the district. 25 Functions of chief executive generally The chief executive of a local health district— (a) has, and may exercise, such functions as are conferred or imposed on the chief executive by or under this or any other Act, and (b) is, in the exercise of his or her functions, accountable to the local health district board constituted for the district. Division 2 Local health district boards 26 Constitution of local health district boards (1) A local health district board is to be established for each local health district. (2) A local health district board is to consist of 6 to 13 persons appointed by the Minister, selected in accordance with subsections (3) and (4). (3) The Minister is to select the membership of a local health district board so that the membership of the board has an appropriate mix of skills and expertise required to oversee and provide guidance to the district, including members who— (a) have expertise and experience in health management, business management and financial management, and (b) have expertise and experience in the provision of clinical and other health services, and (c) where appropriate, are representatives of universities, clinical schools or research centres, and (d) have knowledge and understanding of the community served by the district, and (e) have other backgrounds, skills, expertise, knowledge or experience appropriate for the district. (4) A local health district board is to have at least one member (who may also be one of the kinds of members referred to in subsection (3)(a)–(e)) who has expertise, knowledge or experience in relation to Aboriginal health. (5) A member of a local health district board holds office for such period (not exceeding 5 years) as may be specified in the member's instrument of appointment. (6) A member whose term of office expires is eligible (if otherwise qualified) for re-appointment, but may not be appointed so as to hold office for more than 10 years in total (whether or not the appointments are consecutive). (7) One of the members of a local health district board is, by the relevant instrument of appointment or by a further instrument signed by the Minister, to be appointed as the Chairperson of the board. (8) A member of a local health district board is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member. (9) Schedule 4A includes further provisions with respect to the constitution and procedure of local health district boards. 27 (Repealed) 28 Functions of local health district boards (1) The local health district board for a local health district has the following functions— (a) to ensure effective clinical and corporate governance frameworks are established to support the maintenance and improvement of standards of patient care and services by the local health district and to approve those frameworks, (b) to approve systems— (i) to support the efficient and economic operation of the local health district, and (ii) to ensure the district manages its budget to ensure performance targets are met, and (iii) to ensure that district resources are applied equitably to meet the needs of the community served by the district, (c) to ensure strategic plans to guide the delivery of services are developed for the local health district and to approve those plans, (d) to provide strategic oversight of and monitor the local health district's financial and operational performance in accordance with the State-wide performance framework against the performance measures in the performance agreement for the district, (e) to appoint, and exercise employer functions in relation to, the chief executive of the local health district, (e1) to ensure that the number of NSW Health Service senior executives employed to enable the local health district to exercise its functions, and the remuneration paid to those executives, is consistent with any direction by the Health Secretary or condition referred to in section 122(2), (f) to confer with the chief executive of the local health district in connection with the operational performance targets and performance measures to be negotiated in the service agreement for the district under the National Health Reform Agreement, (g) to approve the service agreement for the local health district under the National Health Reform Agreement, (h) to seek the views of providers and consumers of health services, and of other members of the community served by the local health district, as to the district's policies, plans and initiatives for the provision of health services, and to confer with the chief executive of the district on how to support, encourage and facilitate community and clinician involvement in the planning of district services, (i) to advise providers and consumers of health services, and other members of the community served by the local health district, as to the district's policies, plans and initiatives for the provision of health services, (j) to endorse the local health district's annual reporting information for the purposes of the Government Sector Finance Act 2018, (k) to liaise with the boards of other local health districts and specialty network governed health corporations in relation to both local and State-wide initiatives for the provision of health services, (l) such other functions as are conferred or imposed on it by the regulations. (2) A local health district board must not exercise a function in a way that is inconsistent with the exercise of a function by the Health Secretary (including a function that has been delegated to the Health Secretary). 29 Removal of members of local health district board and appointment of administrator (1) The Minister may at any time, for any reason or no reason and without notice, by order published in the Gazette— (a) remove any member or all members of a local health district board from office, or (b) remove all members of a local health district board from office and appoint, as administrator of the local health district concerned, the chief executive of the district or any other person specified in the order for such period as may be specified in the order. (2) If the Minister appoints an administrator of a local health district under this section, the Minister is (as soon as is reasonably practicable after the appointment is made) to make a statement in Parliament concerning the basis for the appointment of the administrator. (3) An administrator of a local health district has and may exercise, subject to any conditions that may be specified in the order by which the administrator is appointed, all the functions of the chief executive and board for that district. (4) An administrator of a local health district is entitled to be paid from the funds of that district such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the administrator. (5) The regulations may make provision with respect to administrators of local health districts. 29A (Repealed) Division 3 Other committees and councils 29B Other committees and councils The chief executive may establish such committees and councils as he or she considers appropriate to assist the local health district in the exercise of its functions. Part 3 Functions of local health districts 30 Combined management or assistance in management of public hospitals, health institutions, health services or health support services (cf AHS Act s 22) (1) Any two or more local health districts, or any one or more local health districts and any one or more non-district health organisations, may, by agreement, jointly control and manage any public hospital, health institution, health service or health support service. (2) A local health district may, by agreement, manage any public hospital, health institution, health service or health support service under the control of another local health district or a non-district health organisation, or assist in that management, for and on behalf of that other local health district or non-district health organisation. (3) A local health district must not enter into an agreement under this section without the approval of the Minister. (4) A public hospital, health institution, health service or health support service is not, for the purposes of this or any other Act, to be regarded as being under the control of a local health district because the local health district manages, or assists in the management of, the hospital, health institution, health service or health support service for and on behalf of another local health district or of a non-district health organisation. (5) In this section— non-district health organisation means— (a) a statutory health corporation, or (b) an affiliated health organisation. 31 Opening and closing of hospitals, health institutions, health services or health support services (cf AHS Act s 23) (1) A local health district may, subject to any direction under this Act, at any time establish such hospitals, health institutions, health services or health support services as it thinks necessary for the exercise of its functions. (2) A local health district may, subject to any direction under this Act, at any time— (a) close any public hospital or health institution, or cease to provide any health service or health support service, under its control, or (b) restrict the range of health care or treatment provided by any public hospital, health institution, health service or health support service under its control. (3) A local health district must, before implementing any decision to exercise its functions under subsection (1) or (2)— (a) notify the Health Secretary of the decision, and (b) ensure that the decision is appropriate having regard to the functions of the local health district. (4) (Repealed) 32 Determination of role, functions and activities of local health districts (1) The Health Secretary may, from time to time, determine the role, functions and activities of any public hospital, health institution, health service or health support service under the control of a local health district and, for that purpose, give any necessary directions to the local health district. (2) The Minister may direct a local health district to do any of the following if the Minister is satisfied that it is in the public interest to do so— (a) establish any hospital, health institution, health service or health support service, (b) close any public hospital or health institution, or cease to provide any health service or health support service, under its control, (c) restrict the range of health care or treatment provided by any public hospital, health institution or health service under its control. 33 (Repealed) 34 Powers in relation to property (cf AHS Act s 27) (1) A local health district may do all or any of the following— (a) acquire land (including an interest in land), for the purpose of the exercise of its functions, by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 and acquire any other property (whether or not the land or other property is required for the purposes of any public hospital, health institution, health service or health support service under the control of the local health district), (b) sell, lease, mortgage or otherwise dispose of land or any other property, (c) dedicate land as a public road under the Roads Act 1993. (2) A local health district must not, without the approval of the Minister, do any of the following— (a) acquire land by any means, (b) dispose of land by sale, lease, mortgage or otherwise, (c) dedicate land as a public road. (3) A local health district may request the Minister to give approval to (and the Minister may approve) a disposition or dedication of land or a use of land, being a disposition, dedication or use— (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. (4) If the Minister has given an approval under this section to a disposition or dedication of land, or to a use of land, neither the disposition or dedication of the land (or its subsequent use) nor the use of the land— (a) is to be regarded as a breach of any provision of, or any trust arising under, the Crown grant of that land, or (b) is to make the land liable to be forfeited to the Crown. 35 Application of Public Works Act 1912 (cf AHS Act s 28) (1) For the purposes of the Public Works Act 1912, any acquisition of land under section 34(1)(a) is taken to be for an authorised work and the local health district concerned is, in relation to that authorised work, taken to be the Constructing Authority. (2) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act. 36 Power to accept property by gifts, devises and bequests (cf AHS Act s 29) (1) A local health district may acquire any property by gift, devise or bequest and may agree to and carry out the conditions of any such gift, devise or bequest, but only if the carrying out of any such conditions is not inconsistent with the purposes and functions of the district. (2) The rule of law against remoteness of vesting does not apply to any such condition to which a local health district has agreed. (3) A local health district may act as trustee of money or other property vested in the local health district on trust. 37 Contracts of local health district (cf AHS Act s 30) (1) A local health district 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, by that person with respect to the exercise by the local health district of its functions conferred or imposed by or under this or any other Act. (2) A local health district may also, with the approval of the Health Secretary, make and enter into contracts or agreements with any person for the provision of any service by the local health district to that person. Any such contract or agreement may extend to the provision of the service outside the area of the local health district. (3) Any contract or agreement under this section is taken, 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. 38 Investments (cf AHS Act s 31) (1) A local health district may invest money held by it— (a) if the local health district is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the local health district is permitted to invest money under that Part, or (b) if the local health district is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way authorised for the time being for the investment of trust funds and in any other way approved by the Minister with the concurrence of the Treasurer. (2) A local health district may at any time dispose of any of its investments and apply the proceeds for the purpose of exercising its functions. (3) This section is, in relation to the investment of any funds, subject to the terms of any trust applying to those funds. 39 Local health district by-laws (1) Power to make model by-laws The Health Secretary may make model by-laws, not inconsistent with this Act or the regulations, for or with respect to the following— (a) the management of any public hospital, health institution, health service or health support service under the control of a local health district, (b) the provision of hospital services and other health services to patients of any public hospital or health institution under the control of a local health district and to other persons, (c) the appointment, control and governance of visiting practitioners in connection with public hospitals, health institutions and health services under the control of a local health district, including the conditions subject to which visiting practitioners may perform work at or in relation to any such hospital, institution or service, (d) regulating or prohibiting smoking at any public hospital, health institution or health service under the control of a local health district, including by designating an area as a smoke-free area for the purposes of section 6A (Smoke-free areas—outdoor public places) of the Smoke-free Environment Act 2000, (e) the custody and use of the seal of a local health district, (f) the keeping of records concerning a local health district's acts and decisions, (g) the appointment and functions of the councils and committees of a local health district. (2) Publication of model by-laws The Health Secretary may publish an order on the NSW legislation website setting out the terms of model by-laws. (3) Adoption of model by-laws A local health district may make by-laws that adopt the provisions of the model by-laws as published on the NSW legislation website in respect of the area in which the local health district is constituted with such additions, omissions or other modifications (if any) as may be made by it in accordance with this section. (4) Modification to, and omission of, provisions of model by-laws A local health district may make modifications to, or omit, a provision of the model by-laws only with the approval of the Health Secretary. (5) Additional by-laws A local health district may make additional by-laws in relation to matters specified in subsection (1) but not covered by the model by-laws provided the additional by-laws are not inconsistent with the model by-laws. A copy of any such additional by-laws are to be provided to the Health Secretary within 30 days of the making of the by-laws. (6) Precondition for making of certain by-laws A model by-law or by-law may not be made for or with respect to any matter referred to in subsection (1)(c) unless the Health Secretary or local health district (as the case requires) has received advice from the Medical Services Committee in relation to the substance of the model by-law or by-law proposed to be made. (7) Exception to precondition Subsection (6) does not apply to a model by-law or by-law if the Medical Services Committee does not furnish advice to the Health Secretary or local health district (as the case requires) in relation to the relevant model by-law or by-law— (a) within 30 days after a notice from the Health Secretary or local health district requesting such advice has been served on the Committee, or (b) within such further period as the Health Secretary or local health district may specify in the notice or in another notice served on the Committee. (8) What by-laws may provide for A provision of a model by-law or by-law may do any one or any combination of the following— (a) apply generally or be limited in its application by reference to specified exceptions or factors, (b) apply differently according to different factors of a specified kind, (c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body. (9) Power to amend or repeal by-laws A power to make model by-laws or by-laws includes the power to amend or repeal any model by-law or by-law made in the exercise of that power. (10) Judicial notice Judicial notice is to be taken of a by-law authenticated by the seal of the local health district concerned or in accordance with section 135. It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of the by-law have been complied with and performed. 40 Delegations by local health district (cf AHS Act s 34) (1) A local health district may delegate any of its functions (other than a function set out in subsection (1A)) to— (a) any member of the NSW Health Service, or (b) a visiting practitioner, council or committee appointed by the local health district, or (c) a body appointed by the Minister or Health Secretary under this or any other Act, or (d) a person or body of a class prescribed by the regulations. Note. Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions. (1A) A local health district cannot delegate— (a) its power of delegation under this section, or (b) its functions under section 31(2), or (c) the power to make by-laws. (2) The Health Secretary may give any direction to a local health district concerning delegations under this section that the Health Secretary thinks fit. (3) Nothing in this section authorises a local health district to delegate the whole of its functions to another person. (4) (Repealed) Chapter 4 Statutory health corporations Part 1 Constitution of statutory health corporations 41 Constitution of statutory health corporations (cf AHS Act s 5, PH Act s 18(1)) (1) There are constituted by this section such statutory health corporations as are specified from time to time in Schedule 2. (2) A statutory health corporation is a body corporate with the corporate name specified in Schedule 2. (3) A statutory health corporation is to be a chief executive governed health corporation, a board governed health corporation or a specialty network governed health corporation, as specified from time to time in Schedule 2. 42 Amendment of Schedule 2 (Statutory health corporations) (cf AHS Act s 6, PH Act s 18(2) and (2A)) The Governor may, by order published on the NSW legislation website— (a) amend Schedule 2 by inserting, altering or omitting the name of a statutory health corporation, or (a1) amend Schedule 2 by changing its governance from— (i) chief executive governance to board governance or specialty network governance, or (ii) board governance to chief executive governance or specialty network governance, or (iii) specialty network governance to chief executive governance or board governance, or (b) omit Schedule 2 and insert instead a Schedule containing the names of statutory health corporations and the nature of their governance. 43 Dissolution, transfer, amalgamation or change of name or nature of governance of statutory health corporations (cf AHS Act ss 9 and 21, PH Act ss 13A, 14 and 15) (1) The Governor may, by order published on the NSW legislation website— (a) dissolve a statutory health corporation, or (b) transfer a statutory health corporation to a local health district, or (c) amalgamate 2 or more statutory health corporations, or (d) change the name or nature of governance of a statutory health corporation, and may, in the order, amend Schedules 1 and 2 accordingly. (2) An order under this section must specify the date (being a date that is on or after the date it is published on the NSW legislation website) on which it takes effect. However, if no date is specified in the order, the order is taken to have specified the date on which it is published on the NSW legislation website as the date on which it takes effect. (3) An order is not to be made under this section unless the Minister is of the opinion that the order is in the public interest and has recommended to the Governor that the order be made. (4) A dissolution, transfer, amalgamation or change of name or nature of governance under this section may be effected without holding an inquiry. Note. Part 3 of Chapter 10 provides for the transfer by order of the Governor of public hospitals, health institutions, health services, health support services and property between local health districts and statutory health corporations. Section 116 provides for the transfer of staff between public health organisations. 44 Consequential and transitional provisions on the making of orders (cf AHS Act ss 10 and 21 and Sch 6, PH Act ss 14, 15 and 19) (1) Schedule 4 has effect with respect to orders made under this Part. (2) An order under this Part may contain provisions, not inconsistent with the provisions of or made under Schedule 4, of a savings and transitional nature consequent on the making of the order. 45 Provisions relating to the corporate nature of statutory health corporations (cf AHS Act s 11, PH Act s 18(3)) (1) A statutory health corporation— (a) has perpetual succession, and (b) is to have an official seal, and (c) may take proceedings, and be proceeded against, in its corporate name, and (d) 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 (e) does not represent the Crown. Note. Section 150(1) of the Evidence Act 1995 provides for judicial notice to be taken in relation to a seal of any body established under an Act. (2) However, a statutory health corporation cannot employ any staff. Note. Staff may be employed under Part 1 of Chapter 9 in the NSW Health Service to enable a statutory health corporation to exercise its functions. Part 2 Control and management of statutory health corporations Division 1 Board governed health corporations 46 Constitution of health corporation boards (cf AHS Act s 12, PH Act s 22) (1) There is constituted a health corporation board for each board governed health corporation. (2) A health corporation board is to be called the "[name of board governed health corporation] Board". 47 Health corporation board to control affairs of board governed health corporation (cf AHS Act s 13, PH Act s 22(1)) (1) The affairs of a board governed health corporation are to be controlled by the health corporation board for that corporation. (2) Any act, matter or thing done in the name of, or on behalf of, a board governed health corporation by the health corporation board for that corporation, or with the authority of that board, is taken to have been done by that corporation. 48 Health corporation board subject to control and direction of Minister (cf AHS Act s 14, PH Act s 22A(1)) A health corporation board is subject to the control and direction of the Minister, except in relation to the contents of a recommendation or report made by the board to the Minister. 49 Membership of health corporation board (cf AHS Act s 15, PH Act s 22(1A)) (1) A health corporation board is to consist of the following persons— (a) the chief executive of the board governed health corporation (who holds office as an ex-officio member), (b) persons (not being less than 5 or more than 11) appointed by the Minister. (2) One of the persons appointed by the Minister is to be a member of the NSW Health Service who is employed in connection with the board governed health corporation concerned. (3) Subsection (2) does not apply to a health corporation board if less than 50 members of the NSW Health Service are employed to enable the board governed health corporation concerned to exercise its functions. 50 Provisions relating to members and procedure of boards (cf AHS Act s 16, PH Act ss 23–27B) Schedule 5 has effect with respect to the members and procedure of health corporation boards. 51 Appointment of chief executive of board governed health corporation (1) A chief executive is to be appointed by the Health Secretary for each board governed health corporation. (2) Any such chief executive is employed in the NSW Health Service. (3)–(5) (Repealed) (6) The affairs of a board governed health corporation are to be managed by the chief executive of the corporation. (7) The chief executive of a board governed health corporation— (a) has, and may exercise, such functions as are conferred or imposed on the chief executive by or under this or any other Act, and (b) is, in the exercise of his or her functions, subject to the control and direction of the health corporation board for the corporation. 52 Removal of members and appointment of administrator (cf AHS Act s 18, PH Act s 26) (1) The Governor may at any time, for any reason or no reason and without notice, by order published in the Gazette— (a) remove any member (including the chief executive) or all members of a health corporation board from office, or (b) remove all members of a health corporation board from office and appoint, as administrator of the board governed health corporation concerned, a person specified in the order for such period as may be specified in the order, or (c) remove all members of a health corporation board (other than the chief executive) from office and appoint, as administrator of the board governed health corporation concerned, the chief executive for such period as may be specified in the order. (2) The chief executive of a board governed health corporation ceases to hold office as chief executive if removed from office as a member of the health corporation board of the corporation. (3) An administrator of a board governed health corporation has and may exercise, subject to any conditions that may be specified in the order by which the administrator was appointed, all the functions of the health corporation board for that corporation. (4) An administrator of a board governed health corporation is entitled to be paid from the funds of that corporation such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the administrator. (5) The regulations may make provision with respect to administrators of board governed health corporations. (6) If the chief executive of a board governed health corporation is a NSW Health Service senior executive, the removal of the chief executive from office under this section is taken to be a termination of employment under section 121H. (7) (Repealed) Division 2 Chief executive governed health corporations 52A Appointment of chief executive of chief executive governed health corporation (1) A chief executive is to be appointed by the Health Secretary for each chief executive governed health corporation. (2) Any such chief executive is employed in the NSW Health Service. (3) If any such chief executive is not a NSW Health Service senior executive, the provisions of Part 3 of Chapter 9 relating to the termination of employment of senior executives extend to the chief executive. 52B Chief executive to manage and control affairs of chief executive governed health corporation (1) The affairs of a chief executive governed health corporation are to be managed and controlled by the chief executive of the corporation. (2) Any act, matter or thing done in the name of, or on behalf of, a chief executive governed health corporation by its chief executive is taken to have been done by the corporation. 52C Functions of chief executive generally The chief executive of a chief executive governed health corporation has, and may exercise, such functions as are conferred or imposed on the chief executive by or under this or any other Act. 52D Advisory councils (1) The Minister may establish an advisory council for each chief executive governed health corporation. (2) The constitution, procedure and functions of an advisory council are to be as determined by the Minister. 52E Other committees and councils The chief executive may establish such committees and councils as he or she considers appropriate to assist the chief executive governed health corporation in the exercise of its functions. Division 3 Specialty network governed health corporations 52F Boards of specialty network governed health corporations (1) A board is to be established for each specialty network governed health corporation. (2) The provisions of Division 2 of Part 2 of Chapter 3 (except section 26(1)) apply in relation to a board of a specialty network governed health corporation in the same way as they apply to a local health district board, subject to the following modifications— (a) a reference in those provisions (however expressed) to a local health district board is to be read as if it were a reference to the board for a specialty network governed health corporation, (b) a reference in those provisions (however expressed) to a local health district is to be read as if it were a reference to a specialty network governed health corporation, (c) a reference in those provisions (however expressed) to the chief executive of a local health district is to be read as if it were a reference to the chief executive of a specialty network governed health corporation, (d) such other modifications as may be prescribed by the regulations. 52G Appointment of chief executive of specialty network governed health corporations (1) A chief executive is to be appointed for each specialty network governed health corporation by the board for the specialty network with the concurrence of the Health Secretary. (1A) Any such chief executive is employed in the NSW Health Service and is a NSW Health Service senior executive. (2) Sections 24 and 25 apply in relation to a chief executive of a specialty network governed health corporation in the same way as they apply to a chief executive of a local health district, subject to the following modifications— (a) a reference in those sections to the chief executive of a local health district is to be read as if it were a reference to the chief executive of a specialty network governed health corporation, (b) a reference in those sections to a local health district is to be read as if it were a reference to a specialty network governed health corporation, (c) a reference in those sections to a local health district board is to be read as if it were a reference to the board of a specialty network governed health corporation, (d) such other modifications as may be prescribed by the regulations. Part 3 Functions of statutory health corporations 53A Combined management or assistance in management of public hospitals, health institutions, health services or health support services (1) Any two or more statutory health corporations may, by agreement, jointly control and manage any public hospital, health institution, health service or health support service. (2) A statutory health corporation may, by agreement, manage any public hospital, health institution, health service or health support service under the control of another statutory health corporation, or assist in that management, for and on behalf of that other statutory health corporation. (3) A statutory health corporation must not enter into an agreement under this section without the approval of the Minister. (4) A public hospital, health institution, health service or health support service is not, for the purposes of this or any other Act, to be regarded as being under the control of a statutory health corporation because the statutory health corporation manages, or assists in the management of, the public hospital, health institution, health service or health support service for and on behalf of another statutory health corporation. 53 Determination of functions of statutory health corporations (cf AHS Act s 24, PH Act s 13(4)) (1) The relevant authority may, from time to time, determine the role, functions and activities of any public hospital, health institution, health service or health support service under the control of a statutory health corporation and, for that purpose, give any necessary directions— (a) in the case of a chief executive governed health corporation, to the chief executive of that corporation, or (b) in the case of a board governed health corporation, to the health corporation board for that corporation, or (c) in the case of a specialty network governed health corporation, to the corporation. (2) Without limiting subsection (1), the Minister may direct a statutory health corporation to do any of the following if the Minister is satisfied that it is in the public interest to do so— (a) establish any hospital, health institution, health service or health support service, (b) close any public hospital or health institution, or cease to provide any health service or health support service, under its control, (c) restrict the range of health care or treatment provided by any public hospital, health institution or health service under its control. (3) In this section, relevant authority means— (a) in relation to a board governed health corporation, the Minister, and (b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Health Secretary. 54 Other committees and councils The chief executive may establish such committees and councils as he or she considers appropriate to assist the statutory health corporation in the exercise of its functions. 55 Powers in relation to property (cf AHS Act s 27, PH Act s 20) (1) A statutory health corporation may do all or any of the following— (a) acquire land (including an interest in land), for the purpose of the exercise of its functions, by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 and acquire any other property (whether or not the land or other property is required for the purposes of any public hospital, health institution, health service or health support service under the control of the statutory health corporation), (b) sell, lease, mortgage or otherwise dispose of land or any other property, (c) dedicate land as a public road under the Roads Act 1993. (2) A statutory health corporation must not, without the approval of the Minister, do any of the following— (a) acquire land by any means, (b) dispose of land by sale, lease, mortgage or otherwise, (c) dedicate land as a public road. (3) A statutory health corporation may request the Minister to give approval to (and the Minister may approve) a disposition or dedication of land or a use of land, being a disposition, dedication or use— (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. (4) If the Minister has given an approval under this section to a disposition or dedication of land, or to a use of land, neither the disposition or dedication of the land (or its subsequent use) nor the use of the land— (a) is to be regarded as a breach of any provision of, or any trust arising under, the Crown grant of that land, or (b) is to make the land liable to be forfeited to the Crown. 56 Application of Public Works Act 1912 (cf AHS Act s 28, PH Act s 21) (1) For the purposes of the Public Works Act 1912, any acquisition of land under section 55(1)(a) of this Act is taken to be for an authorised work and the statutory health corporation concerned is, in relation to that authorised work, taken to be the Constructing Authority. (2) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act. 57 Power to accept property by gifts, devises and bequests (cf AHS Act s 29) (1) A statutory health corporation may acquire any property by gift, devise or bequest and may agree to and carry out the conditions of any such gift, devise or bequest, but only if the carrying out of any such conditions is not inconsistent with the purposes and functions of the corporation. (2) The rule of law against remoteness of vesting does not apply to any such condition to which a statutory health corporation has agreed. (3) A statutory health corporation may act as trustee of money or other property vested in the statutory health corporation on trust. 58 Contracts of statutory health corporations (cf AHS Act s 30) (1) A statutory health 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, by that person with respect to the exercise by the statutory health corporation of its functions conferred or imposed by or under this or any other Act. (2) A statutory health corporation may also, with the approval of the relevant authority, make and enter into contracts or agreements with any person for the provision of any service by the statutory health corporation to that person. (3) Any contract or agreement under this section is taken, 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. (4) In this section, relevant authority means— (a) in relation to a board governed health corporation, the Minister, and (b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Health Secretary. 59 Investments (cf AHS Act s 31, PH Act s 29) (1) A statutory health corporation may invest money held by it— (a) if the statutory health corporation is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the statutory health corporation is permitted to invest money under that Part, or (b) if the statutory health corporation is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way authorised for the time being for the investment of trust funds and in any other way approved by the Minister with the concurrence of the Treasurer. (2) A statutory health corporation may at any time dispose of any of its investments and apply the proceeds for the purpose of exercising its functions. (3) This section is, in relation to the investment of any funds, subject to the terms of any trust applying to those funds. 60 Statutory health corporation by-laws (1) Power to make model by-laws The relevant authority may make model by-laws, not inconsistent with this Act or the regulations, for or with respect to the following— (a) the management of any public hospital, health institution, health service or health support service under the control of a statutory health corporation, (b) the provision of health services to patients of any public hospital or health institution under the control of a statutory health corporation and to other persons, (c) the appointment, control and governance of visiting practitioners in connection with public hospitals, health institutions and health services under the control of a statutory health corporation, including the conditions subject to which visiting practitioners may perform work at or in relation to any such hospital, institution or service, (d) regulating or prohibiting smoking at any public hospital, health institution or health service under the control of a statutory health corporation, including by designating an area as a smoke-free area for the purposes of section 6A (Smoke-free areas—outdoor public places) of the Smoke-free Environment Act 2000, (e) the custody and use of the seal of a statutory health corporation, (f) the keeping of records concerning the acts and decisions of a statutory health corporation, (g) in the case of a board governed health corporation— (i) the keeping of records concerning the acts and decisions of the board, and (ii) the procedure for the calling of meetings of the board and for the conduct of business at those meetings, (h) the appointment and functions of the councils and committees of a statutory health corporation. (2) Publication of model by-laws The relevant authority may p