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Cancer Australia Bill 2006

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2004-05-06

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

CANCER AUSTRALIA BILL 2006

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Health and Ageing,

The Honourable Tony Abbott MP)



CANCER AUSTRALIA BILL 2006

 

OUTLINE

The purpose of this bill is to establish Cancer Australia as a new statutory agency.  It outlines the functions of Cancer Australia and includes the terms of appointment and roles of the Chief Executive Officer, support staff and the Advisory Council. 

The establishment of Cancer Australia as a new national agency is a policy decision from the 2004 election as part of the Strengthening Cancer Care initiative.  The Australian Government has committed a total of $13.7 million over five years to establish this new agency. 

The intention of the bill is to ensure that Cancer Australia is established for the purposes prescribed. Cancer Australia will:

·          provide national leadership and coordination of cancer control in Australia;

·          guide improvements to cancer prevention and care, to ensure treatment is scientifically based;

·          coordinate and liaise between the wide range of groups and providers with an interest in cancer;

·          make recommendations to the Australian Government about cancer policy and priorities;

·          oversee a dedicated budget for research into cancer;

·          assist with the implementation of Australian Government policies and programs in cancer control; and

·           undertake any functions that the Minister, by writing, directs the Chief Executive Officer to perform.

This will translate into a national voice with more research funding for cancer care, better support for those living with cancer, strengthened palliative care services and better support for cancer professionals.

 

FINANCIAL IMPACT STATEMENT

The Australian Government originally committed a total of $13.7 million over four years to 2007-08 to establish this new agency.  Extensive key stakeholder’s consultations have been undertaken including a workshop and developmental policy work.  The Department of Finance has rephased a component of the funding from 2004/05 to 2005/06.  This rephasing is reflected in the funding distribution as shown in the table below.

 

2005-06

 

2006-07

2007-2008

2008-2009

4 yr total

$m

$4.546

$2.59936

$2.6418

$2.880

$12.66

 

 

 

 

 

CANCER AUSTRALIA BILL 2006

 

NOTES ON CLAUSES

 

PART 1-PRELIMINARY

 

Clause 1- Short title

Clause 1 is a formal provision that specifies the short title of the Act as the Cancer Australia Act 2006 .

 

Clause 2- Commencement

Clause 2 provides that the Act will commence on the day on which it receives the Royal Assent.

 

Clause 3- Definitions

Clause 3 sets out definitions that determine the meaning that is attributed to certain words and phrases whenever they are used in the Act.  The defined terms are:

·          “Advisory Council” means the Cancer Australia Advisory Council established by section ^24.

·          “Advisory Council member” means a member of the Advisory Council and includes the Chair.

·          “Chief Executive Officer means” the Chief Executive Officer of Cancer Australia.

·          “Chair” means the Chair of the Advisory Council.

 

Clause 4- This Act binds the Crown.

Clause 4 clause provides that the Act binds the Crown in each of its capacities but does not make the Crown liable to be prosecuted for an offence.

 

Clause 5-Application to the external Territories

Clause 5 provides that the Act will have application in every external Territory.

 

PART 2 CANCER AUSTRALIA

 

Clause 6 Establishment

Clause 6 establishes Cancer Australia and provides that it will consist of the Chief Executive Officer (CEO) Advisory Council and staff referred to in clause 8.

Cancer Australia will not have a legal identity separate from the Commonwealth.

It is intended to prescribe Cancer Australia under the Financial Management and Accountability Act 1997 so that it will be an agency to which the provisions of the Financial Management and Accountability Act 1997 will apply.

The CEO together with the staff engaged under clause 8(1) will be, pursuant to the provisions of subclause 8(2), a Statutory Agency for the purposes of the Public Service Act 1999 and the CEO will be the Head of that Statutory Agency.

The office of CEO is established by clause 10 and provisions relating to the role and appointment of the CEO are provided at Part 3 of the Act.

For the purposes of employing or engaging staff, clause 8 provides that the staff of Cancer Australia must be persons engaged under the Public Service Act 1999 .

 

Clause 7 Functions of Cancer Australia

Clause 7 sets out the functions of Cancer Australia.

Under paragraph 7(1) (a), Cancer Australia will have the function of providing national leadership in cancer control, guide improvement in overall cancer treatment and management and make recommendations and assist the Government with the implementation of cancer policies and priorities.

To position Cancer Australia as a leader in this field, it is intended that there will be a focus on increasing collaboration and reducing duplication, and increasing liaison key stakeholders.

There will be a dedicated budget for research into cancer.  This dedicated budget is has been allocated from the Strengthening Cancer Care Initiative.  This includes the development of a National Cancer Research Plan in conjunction with the National Health and Medical Research Council. 

Subclause 2 indicates that paragraph (1) (h), is included to assist the readers as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.       

 

Clause 8 Staff

Subclause 8(1) provides that the staff of Cancer Australia will be engaged under the Public Service Act 1999 .  It is intended that the role of the persons so engaged will be to provide administrative support and policy advice to the CEO.

Subclause 8(2) provides that the staff and CEO of Cancer Australia will constitute a Statutory Agency, consistent with the new policy document on Governance Arrangements for Australian Government Bodies prepared by the Department of Finance and Administration.

 

Clause 9 Consultants

Clause 9 allows for the CEO to engage suitably qualified and experienced consultants to of Cancer Australia.  It is intended that such consultants be engaged where specific projects or pieces of work to be performed by Cancer Australia require particular experience and expertise.

Under subclause 9(2), the CEO may engage these consultants on such terms and conditions as the CEO determines in writing.  It is intended that consultants so engaged be independent contractors to the Commonwealth and not employees.

PART 3 THE CHIEF EXECUTIVE OFFICER

 

DIVISION 1 ROLE OF CHIEF EXECUTIVE OFFICER

 

Clause 10 Chief Executive Officer

Clause 10 provides that there is to be a CEO of Cancer Australia. 

 

Clause 11 Responsibilities of the CEO

Clause 11 provides that the CEO has the responsibility of managing Cancer Australia.

The CEO will be advised by the Advisory Council pursuant to its functions set out by clause 26.

It is intended that the CEO will be responsible for the establishment, leadership and management of the agency and for implementing Cancer Australia’s overall strategic direction. 

 

Clause 12 Minister may give directions to the CEO

Clause 12 allows that the CEO report directly to the Minister who may in turn give directions to the CEO concerning the functions of Cancer Australia.  The Advisory Council will report to the Minister through the CEO.

Clause 12 also allows that any directives given by the Minister to the CEO will be legislative instruments and accordingly will need to be presented to each House of the Parliament.         

 

Clause 13 Delegation

Clause 13 provides generally for delegation by the CEO.

Under subclause 13(1), the CEO may delegate, in writing, all or any of the CEO’s functions or powers under the Act, to an SES employee or an acting SES employee of Cancer Australia.  Because of the provisions of section 53 of the Financial Management and Accountability Act 1997 , the CEO will be able to delegate to employees who are not SES employees.

Subclause 13(2) provides that a person to whom a function or power is delegated must, in exercise of the delegation, comply with any written directions the CEO may have given.

 

DIVISION 2 APPOINTMENT ETC. OF CHIEF EXECUTIVE OFFICER

 

Clause 14 Appointment of Chief Executive Officer

Subclause 14(1) provides that the CEO is appointed by the Minister by written instrument.

Under subclause 14(2), the CEO may be appointed on either a full-time basis or a part-time basis.

Clause 15 Term of appointment

Clause 15 provides that the CEO holds office for the period which is specified in the instrument of appointment.  That specified period, however, must not exceed three years.  The Acts in Interpretation Act 1901 allows for reappointment of the CEO if required.

 

Clause 16 Acting appointments

Subclause 16(1) provides for the appointment by the Minister of an acting CEO in any of the following circumstances:

·          where there is a vacancy in the office of CEO regardless of whether an appointment under clause 15 has been previously made;

·          where the CEO is absent from duty;

·          where the CEO is absent from Australia; or

·          where the CEO is unable to perform the duties of the office of CEO, regardless of the reason for that inability.

Subclause 16(2) provides generally that anything done by a person purporting to act under a CEO appointment is not invalid only because of the existence of any of the following circumstances:

·          the occasion for the appointment had not arisen;

·          the appointment had an associated defect or irregularity;

·          the appointment had ceased to have effect; or

·          the occasion to act either had not arisen or it had ceased.

 

Clause 17 Chief Executive Officer’s remuneration

Clause 17 is a standard provision, and is very similar to clause 30 as that clause applies to the remuneration of Advisory Council members, which establishes the CEO’s remuneration and allowances.  Recreation leave and leave of absence provisions are dealt with separately under clause 19.

Under subclause 17(1), which deals only with remuneration and not allowances, the CEO is to be paid remuneration determined by the Remuneration Tribunal, but where there exists no operative determination by the Remuneration Tribunal, then the CEO is to be paid such remuneration as is prescribed.

Under subclause 17(2), the CEO is to be paid such allowances as are prescribed.

Subclause 17(3) provides that clause 17 has effect subject to the provisions of the Remuneration Tribunal Act 1973.

 

Clause18 Outside employment

Under clause 18, the CEO must not engage in paid employment outside Cancer Australia without the Minister’s approval.

 

Clause 19 Leave of absence

Under subclause 19(1), the CEO has recreation leave entitlements as determined by the Remuneration Tribunal.

Under subclause 19(2), the Minister has power to grant the CEO leave of absence, other than recreation leave, on such terms and conditions of remuneration as the Minister may determine.

 

Clause 20 Disclosure of interests

Clause 20 requires the CEO to give the Minister written notice of all pecuniary interests and non-pecuniary interests that the CEO has or acquires that could conflict with the proper performance of the CEO’s functions.

 

Clause 21 Other terms and conditions

Clause 21 provides for the Minister to determine terms and conditions of the CEO’s appointment in relation to matters not covered by the Act.  Under clause 21 the CEO holds office on those other terms and conditions.

 

Clause 22 Resignation

Under clause 22, the CEO, may resign his or her appointment by giving the Minister a written resignation.

 

Clause 23 Termination of appointment

Clause 23 provides generally for termination of the CEO’s appointment.

Subclause 23(1) provides for termination of the CEO by the Minister for misbehaviour or physical incapacity or mental incapacity.

Subclause 23(2) provides for termination of the CEO by the Minister in any of the following standard sets of circumstances:

·          bankruptcy of the CEO;

·          application by the CEO to take the benefit of any bankruptcy or insolvency law;

·          the CEO compounds with his or her creditors;

·          assignment by the CEO of his or her remuneration for the benefit of creditors;

·          absence from duty by the CEO except on leave of absence without reasonable excuse;

·          failure by the CEO without reasonable excuse to comply with the clause 18 requirement that the CEO not engage in outside employment without the Minister’s approval; or

·          failure by the CEO without reasonable excuse to comply with the clause 20 requirement about disclosure of interests.

 

PART 4 THE ADVISORY COUNCIL

 

DIVISION 1 ROLE OF THE ADVISORY COUNCIL

 

Clause 24 Establishment

Clause 24 establishes the Cancer Australia Advisory Council.

 

Clause 25 Membership

Clause 25 provides that the Advisory Council consists of a Chair and a maximum of twelve members other than the Chair.

 

Clause 26 Functions of Advisory Council

C lause 26 provides that the function of the Advisory Council is to give advice to the CEO about the performance of Cancer Australia’s functions.

 

DIVISION 2 APPOINTMENT ETC. OF MEMBERS OF ADVISORY COUNCIL

 

Clause 27 Appointment of members

Under clause 27(1), the Chair and the other members referred to in clause 25(b) are to be appointed by the Minister by written instrument.

Subclause 27(2) provides for Advisory Council membership to be on a part-time basis.  It is intended that the part-time status apply also to the Chair.

 

Clause 28 Term of appointment

Clause 28 provides that all Advisory Council members hold office for the period which is specified in the instrument of appointment.  That specified period, however, must not exceed three years.  The Acts in Interpretation Act 1901 allows for reappointment of the CEO if required.

It is intended that these provisions apply to the Chair as well as to the other members referred to in clause 25(b).

 

Clause 29 Acting appointments

Clause 29 is a general provision providing separately for acting appointments as Chair of the Advisory Council and for acting appointments for the other members referred to in clause 25(b).

Under subclause 29(1), the Minister may appoint an Advisory Council member to act as Chair in any of the following circumstances:

·          where there is a vacancy in the office of Chair, regardless of whether an appointment has previously been made; an Acting Chair could, for example, be appointed where a Chair had been appointed under clause 27(1) but the person appointed had not yet taken office; or

·          where the Chair is absent from duty; or

·          where the Chair is absent from Australia; or

·          where the Chair is unable to perform the duties of Chair, regardless of the reason for that inability.

Under subclause 29(2), the Minister may appoint a person to act as an Advisory Council member in any of the following circumstances:

·          where there is a vacancy in the office of Advisory Council member, regardless of whether an appointment has previously been made; an Acting Advisory Council member could, for example, be appointed where a member had been appointed under clause 27(1) but the person appointed had not yet taken office; or

·          where an Advisory Council member is absent from duty; or

·          where an Advisory Council member is absent from Australia; or

·          where an Advisory Council member is unable to perform the duties of member of the Advisory Council, regardless of the reason for that inability.

Under subclause 29(3), anything done by a person purporting to act under an Advisory Council Chair or Advisory Council member appointment is not invalid only because of the existence of any of the following circumstances:

·          the occasion for the appointment had not arisen;

·          the appointment had an associated defect or irregularity;

·          the appointment had ceased to have effect; or

·          the occasion to act either had not arisen or it had ceased.

 

Clause 30 Members’ remuneration

Clause 30 is a standard provision, and is very similar to clause 17 as that clause applies to the remuneration of the CEO, which establishes the Advisory Council members’ remuneration and allowances.  Leave of absence provisions are dealt with separately under clause 31.

Under subclause 30(1), which deals only with remuneration and not allowances, an Advisory Council member is to be paid remuneration determined by the Remuneration Tribunal, but where there exists no operative determination by the Remuneration Tribunal, then the Advisory Council member is to be paid such remuneration as is prescribed.

Subclause 30(2) makes particular provision in relation to Advisory Council members to prevent what is sometimes colloquially referred to as “double dipping”.  Under this subclause, an Advisory Council member is not entitled to be paid the remuneration referred to in subclause 30(1) if the Advisory Council member holds an office or appointment or is otherwise employed on a full-time basis by any of the following:

·          a State; or

·          a public statutory corporation established  for a public purpose by a State law other than a tertiary institution; or

·          a company limited by guarantee where the interests and rights of members are beneficially owned by a State; or

·          a company in which all stocks and shares are beneficially owned by a State or by a public statutory corporation.

Under subclause 30(3), an Advisory Council member is to be paid such allowances as are prescribed.

It is intended that the provisions of subclauses 30(1), 30(2) and 30(3) apply to the Chair and to members referred to in paragraph 25(b).

Subclause 30(4) provides that clause 30 has effect subject to the provisions of the Remuneration Tribunal Act 1973.

 

Clause 31 Leave of absence

Clause 31 makes leave of absence provisions separately for the Chair of the Advisory Council and for the other members referred to in paragraph 25(b).

Under subclause 31(1), the Minister has power to grant the Chair leave of absence on such terms and conditions of remuneration as the Minister may determine.  This subclause does not apply to members of the Advisory Council other than the Chair.

Under subclause 31(2), the Chair has power to grant other members of the Advisory Council leave of absence on such terms and conditions that the Chair may determine.

 

Clause 32 Disclosure of interests

Clause 32 makes provisions for the avoidance of conflict of interest situations in relation to general pecuniary or business interests and also to particular matters under consideration by the Advisory Council, for example at meetings.

Subclause 32(1) requires each Advisory Council member to give to the Minister written notice of all direct or indirect pecuniary interests that the member has or acquires in any business relating to Cancer Australia or in any body corporate carrying on any business.

Subclause 32(2) requires each Advisory Council member who has an interest, whether pecuniary or non-pecuniary, in any matter being considered by the Advisory Council or about to be considered by the Advisory Council to disclose the nature of the interest to either the CEO of Cancer Australia or the Chair of the Advisory Council.  It is intended that, if the Chair of the Advisory Council had a matter to disclose, that disclosure could appropriately made to the CEO.

 

Clause 33 Other terms and conditions

Clause 33 provides for the Minister to determine terms and conditions of the Advisory Council members holding office in relation to matters not covered by the Act.

 

Clause 34 Resignation

This clause provides for an Advisory Council member to resign his or her appointment in writing to the Minister.  It is intended that this apply to the Chair and to the members referred to at paragraph 25(b).

 

Clause 35 Termination of appointment

Clause 35 provides generally for termination of Advisory Council members’ appointments.

Subclause 35(1) provides for termination of an Advisory Council member by the Minister for misbehaviour or physical incapacity or mental incapacity.

Subclause 35(2) provides for termination of an Advisory Council member by the Minister in any of the following standard sets of circumstances:

·          bankruptcy of an Advisory Council member; or

·          application by the Advisory Council member to take the benefit of any bankruptcy or insolvency law; or

·          the Advisory Council member compounds with his or her creditors; or

·          assignment by the Advisory Council member of his or her remuneration for the benefit of creditors; or

·          absence from duty by the Advisory Council member, except on leave of absence, from three consecutive Advisory Council meetings; or

·          failure by the Advisory Council member without reasonable excuse to comply with the clause 32 requirement about disclosure of interests.

It is intended that the termination provisions apply to both the Chair and to other members referred to at paragraph 25(b).

 

Clause 36 Advisory Council procedures

Subclause 36(1) provides for the CEO to determine, in writing, matters relating to the operation of the Advisory Council.  It is intended that this provision empower the CEO to establish matters such as meeting procedures, and operational matters generally.

Under subclause 36(2), the Advisory Council may operate in the way it determines in the event that there is in force no operative determination by the CEO.  This will ensure that the Advisory Council is able to operate regardless of the existence of a CEO determination.

Subclause 36(3) makes it clear that a CEO determination under subclause 36(1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .  A consequence of this is that any determination is not required to be registered on the Federal Register of Legislative Instruments.

 

PART 5 REPORTING

 

Clause 37 Annual reports

Subclause 37(1) requires the CEO to prepare and give to the Minister the annual report of Cancer Australia operations during each year ending on 30 June.  The annual report must be provided as soon as practicable after 30 June each year.  It is required to be given to the Minister for presentation to the Parliament.

Because the Act does not include a specified period of time for provision of the annual report, it will be required, pursuant to subsection 34C(2) of the Acts Interpretation Act 1901, to be provided by 31 December each calendar year in respect of the year ended on the previously occurring 30 June.  Under section 34C(3) of the Acts Interpretation Act 1901 the Minister will be required to table the annual report within fifteen sittings days after the Minister receives it from the CEO.

Subclause 37(2) provides that the annual report must include a report on the operations of the Advisory Council.

 

PART 6 MISCELLANEOUS

 

Clause 38 Regulations

Clause 38 is a standard provision empowering the Governor-General to make regulations prescribing matters required or permitted to be prescribed or which are necessary or convenient for carrying out or giving effect to the Act.