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National Health Reform Amendment (National Health Performance Authority) Bill 2011

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2010-2011

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

 

 

NATIONAL HEALTH REFORM AMENDMENT (NATIONAL HEALTH PERFORMANCE AUTHORITY) BILL 2011

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Health and Ageing, the Hon. Nicola Roxon, MP)

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED





TABLE OF CONTENTS

INTRODUCTION                                                                                                        2

FINANCIAL IMPACT                                                                                                                                             3

COMMENCEMENT                                                                                                                                                4

SCHEDULE 1 -AMENDMENTS                                                                               5

AMENDMENTS TO THE LONG AND SHORT TITLES                                                                             5

AMENDMENTS TO CHAPTER 1 - PRELIMINARY                                                                                    6

AMENDMENTS TO CHAPTER 2 - AUSTRALIAN COMMISSION ON SAFETY AND QUALITY IN HEALTH CARE    7

ADDITION OF CHAPTER 3 - NATIONAL HEALTH PERFORMANCE AUTHORITY                   9

ADDITION OF CHAPTER 4 - MISCELLANEOUS                                                                                     20

 

 

 

NOTES

In this Explanatory Memorandum, a reference to a section in bold italics ( section 60 ) is a reference to a section as it will appear in the National Health Reform Act 2011 as amended by this Bill.

 

A reference to an item in bold type ( item 120 ) is a reference to an item in Schedule 1 of this Bill.

 

A reference to “the States” includes the Australian Capital Territory and the Northern Territory, and a reference to “State” includes a reference to either of the Territories.

 

 



NATIONAL HEALTH REFORM AMENDMENT (NATIONAL HEALTH PERFORMANCE AUTHORITY) BILL 2011

 

 

INTRODUCTION AND OUTLINE

 

This Bill is intended to establish the National Health Performance Authority (“Performance Authority”) envisaged by the National Health and Hospitals Network Agreement as settled by the Council of Australian Governments (COAG) meeting in April 2010 and reconfirmed in the Heads of Agreement - National Health Reform of 13 February 2011.  Clause 68 of the Heads of Agreement - National Health Reform provides that the Heads of Agreement will lapse after all parties sign the National Health Reform Agreement. 

 

The National Health Reform Bill 2010 will establish the Australian Commission on Safety and Quality in Health Care (“the Commission”).  If it is enacted it will become the National Health and Hospitals Network Act 2011 .  The current Bill amends that Act to change the title, divide the Act into Chapters and add several new Chapters.  Broadly the changes will involve:

  • changing the title of the Act to the National Health Reform Act 2011 , reflecting the outcomes of the COAG meeting of 13 February 2011;
  • amending Chapter 1 to change the objects of the Act to include reference to the Performance Authority, and to include a number of new definitions related to the new authority;
  • amending Chapter 2 dealing with the Commission to distinguish between provisions relating to the members and Chief Executive Officer of the Commission and the new authority, and to introduce provisions relating to secrecy and disclosure of information by the Commission;
  • adding a new Chapter 3 to establish the Performance Authority;
  • adding a new Chapter 4 with miscellaneous machinery provisions.

 

The Bill includes the following provisions to address a number of issues raised by States and Territories:

 

  • a legislative acknowledgement of the role of state and territory health ministers as health system managers of public hospitals and Local Hospital Networks (LHN), and requiring the Performance Authority to have regard to that role when performing its functions;
  • requiring the agreement of the Council of Australian Governments (COAG) before additional functions can be conferred on the Performance Authority;
  • requiring COAG agreement to the extension of the scope of the Performance Authority’s monitoring and reporting functions;
  • the definitions of LHNs and public hospitals clarify that the Minister cannot unilaterally determine what is a public hospital or LHN in a state or territory;
  • to provide that the Performance Authority is required to notify the relevant state/territory health minister when preparing a report showing poor performance by an LHN or public hospital for the primary purpose of assisting the relevant state/territory health minister to carry out their responsibilities as health system managers.  The Performance Authority would also be required to give a final draft report to the relevant state/territory health minister following notification of an assessment of possible poor performance by an LHN or public hospital within their jurisdiction, and invite comments, before finalising the report;
  • allowing COAG to set out policy principles and requiring that the Performance Authority must not act inconsistently with those principles when performing its functions;
  • empowering the Performance Authority to appoint the Chief Executive Officer (CEO) of the Performance Authority following consultation with the Minister, and a range of consequential amendments which transfer the Minister’s powers in relation to the CEO to the Performance Authority;
  • empowering the Performance Authority to terminate the CEO’s appointment if it is unsatisfied with his or her performance;
  • providing that the Performance Authority may not delegate its powers or functions under Part 3.7 of the Bill.  This prevents a situation where the Performance Authority could otherwise have delegated responsibility for settling such matters as the leave entitlements of the CEO to the CEO;
  • explicitly requiring the Performance Authority to provide a copy of the draft strategic plan to the states and territories when preparing its strategic plan and inviting each state and territory health minister to provide comments.  The Performance Authority will be explicitly required to have regard to any comments provided by state and territory health ministers in response to the invitation;
  • inserting a new clause in the secrecy and disclosure provisions in Part 3.12 to enable the Performance Authority to disclose “protected information” to state and Territory Ministers; and
  • transitional provisions in the Bill which relate to the appointment of the Performance Authority CEO to allow the Minister to appoint an interim CEO in the first 6 months of operation of the Performance Authority.

 

The Government intends to introduce further legislation to amend the Act to establish the Independent Hospital Pricing Authority after further consultation with the States.

 

 

FINANCIAL IMPACT

In the 2010-11 Budget the Government allocated funding of $118.6 million for the Performance Authority over four years as shown in the table below.

 

Expense ($m)

 

2010-11

2011-12

2012-13

2013-14

Performance Authority

22.3

23.6

29.4

34.2

 

The Government also decided to offset part of the cost of the new arrangements by adjusting funding for the existing Hospital Accountability and Performance Program to ensure there is no duplication.  This offset will provide a saving of $9.1 million ($5.1 million in 2011-12 and $3.9 million in 2012-13), resulting in an estimated net cost of the Performance Authority of $109.5 million over four years.

 

 

 

COMMENCEMENT

Clause 2 in the Bill provides that the Bill, apart from the schedules, commences on the day the Bill receives Royal Assent. 

 

Schedule 1, which contains the substance of the amendments and new provisions in the Bill, commences on proclamation on a day which must be later than the day on which section 3 (the first substantive section) of the National Health and Hospitals Network Act 2011 commences.  A contingent commencement provision of this nature is required as the Act to be amended has not yet achieved passage through Parliament.

 

However, if the Schedule is not proclaimed within six months of the later of:

  • the day after the Bill receives Royal Assent, or
  • the day on which section 3 of the National Health and Hospitals Network Act 2011 commences,

then the amendments commence on the next day.

 

The Government intends to set a date by proclamation which will allow the members of the Performance Authority to be appointed (under section 4 of the Acts Interpretation Act 1901 ) before the Authority comes into being.

 

 



SCHEDULE 1 -AMENDMENTS

National Health and Hospitals Network Act 2011

 

AMENDMENTS TO THE LONG AND SHORT TITLES

Items 1 and 2 amend the long title of the Act to remove the reference to the National Health and Hospitals Network, and amend the short title to National Health Reform Act 2011 , consistent with the outcome of the COAG meeting of 13 February 2011.  

 



AMENDMENTS TO CHAPTER 1 - PRELIMINARY

 

 

A new objects section [section 3] and simplified outline [section 4] are added by items 4 and 5 in Schedule 1 of the Bill.  ( Item 3 inserts a Chapter heading for Chapter 1.)

 

A series of largely self-explanatory amendments to existing definitions and insertions of new definitions are made to section 5 by items 6 to 35 .

 

The definition of “local hospital network” inserted by item 15 includes a capacity for the Minister to declare entities and facilities to be local hospital networks even if they are not a body corporate established by a State and known as a local hospital network.  This is because some States have indicated a desire to use different terminology, or establish local hospital networks on a non-statutory basis.  In at least one jurisdiction the State proposes to treat a network of hospitals established by a religious order on the same basis as hospital networks created under State law.  Without this amendment that network could not be treated as a local hospital network under the Act.

 

Items 26 and 29 insert definitions of “private hospital” and “public hospital” as facilities specified by the Minister in a legislative instrument. 

 

The definitions of a ‘public hospital’ and ‘Local Hospital Network’ (LHN) provide further acknowledgement of the role of states and territories as health system managers of public hospitals and LHNs by removing ambiguity in these definitions which could have resulted in them being interpreted as providing the Minister with a unilateral power to determine what was an LHN or public hospital.  The operation of these definitions requires that the written agreement of the relevant state/territory health minister is required before the Minister can make a legislative instrument that characterises a body as a public hospital or LHN.

 

These definitions will mainly be used by the Performance Authority in determining the scope of their work.  However, they will also apply in subsection 20(3) , which sets out the qualifications for appointment of members of the Commission Board, and provides for members with expertise in the general management of public or private hospitals.  To ensure the validity of an appointment by the Minister of Commission Board members using section 4 of the Acts Interpretation Act 1901 after Royal Assent to the National Health and Hospitals Network Act 2011 but before this Schedule comes into effect, transitional item 131 provides that the terms “private hospital” and “public hospital” are taken to have had their ordinary meanings.

 

The definitions of “protected Commission information” and “protected Performance Authority information” at items 27 and 28 are used in the secrecy and information disclosure provisions relating to these bodies. 

 

Amendments made to section 6 dealing with vacancies have the effect of setting the minimum number of members of the Performance Authority at seven (including the Chair and Deputy Chair) ( items 36 to 39 ).

 



AMENDMENTS TO CHAPTER 2 - AUSTRALIAN COMMISSION ON SAFETY AND QUALITY IN HEALTH CARE

 

A new section 7A is added setting out a simplified outline of the Chapter ( item 40 of Schedule 1 to the Bill). 

 

A series of other mainly technical amendments are made by items 41 to 129 of Schedule 1 to the Bill to divide the Chapter into Parts and to change references to Chair, Board, board member and CEO to “Commission Chair” etc, to distinguish them from the Chair, members and CEO of the new Performance Authority. 

 

Item 125 repeals subsections 52(5) and (6) in the Act, which provide that reports and information prepared by the Commission in response to a request from the Minister are not legislative instruments.  This is because the provisions are unnecessary, as the documents are clearly not legislative instruments.

 

Item 127 adds a new Part 2.7 dealing with secrecy and disclosure of information in relation to the Commission.   This Part provides that a person that is or has been an official of the Commission (including members, the CEO, staff and consultants) and has obtained information in the course of their work relating to another person (“protected information”) commits an offence if they disclose or use the information, unless the disclosure or use is authorised by Part 2.7 or is compliant with another Commonwealth or a prescribed State law [subsections 54A(1) and (2)]

 

It also provides that a person who is a member of a committee established by the Commission under section 50 and who receives protected Commission information under subsection 54C(1) commits an offence if they disclose or use the information, unless the disclosure or use is for the purposes of the Act, including the performance of the functions of the committee, or is in the course of the person’s service on the committee [subsections 54C(2) and (3)] .  

 

The penalty for the offences (two years imprisonment or 120 penalty units or both) is consistent with penalties for similar offences under other health legislation such as the National Health Act 1953 , Health Insurance Act 1973 and Private Health Insurance Act 2007 and reflects the potential seriousness of improper use or disclosure of protected information.

 

Under subsection 13.3(3) of the Criminal Code a defendant being prosecuted for this offence and wishing to rely on an exception is required to demonstrate that disclosure was covered by one of the exceptions to the offence.  It would be difficult for the prosecution to bear the burden of demonstrating that the disclosure was not covered by one of the exceptions, whereas a person disclosing information should reasonably be aware of the basis for their disclosure. 

 

An official of the Commission is not to be required to produce or disclose protected information to a court or tribunal except where it is necessary for giving effect to the Act [subsection 54A(3)] .

 

 

 

The exceptions from the offence set out in the Part include:

  • disclosure or use for the purposes of the Act, for the performance of the Commission’s functions, or in the course of the official’s employment or service with the Commission [section 54B] ;
  • disclosure to a Commission committee [section 54C] ;
  • disclosure to the Minister [section 54D] ;
  • disclosure to the Treasurer [section 54E] ;
  • disclosure to the Secretary or an APS employee of the Department authorised to receive it [section 54F] ;
  • disclosure to a Royal Commission (in which case the Chair of the Commission can impose conditions on the use of the information) [section 54G] ;
  • disclosure of information about the affairs of a person if the person has consented [section 54K] ;
  • disclosure of information that is already lawfully publicly available [section 54L] .

 

The conditions that may be imposed under section 54G are not a legislative instrument as they are limited to the particular case, and are not a general statement of the law.

 

There are two other exceptions.  If the Chair of the Commission is satisfied that particular protected information will assist one of a number of specified agencies, bodies or individuals to perform or exercise their powers or functions an authorised officer may disclose that information.  However, the recipient of the protected information must not use it for a purpose other than that for which it was given [section 54H]

 

Similarly, if the Chair of the Commission is satisfied that particular protected information will assist an agency, body or person to conduct research an authorised officer may disclose that information, providing that the information is not likely to enable the identification of a particular patient [section 54J]

 

The Chair of the Commission may delegate any function or powers under this Part to the Commission CEO, who must comply with any directions from the Chair in exercising the delegation [section 54M] .

 

 



ADDITION OF CHAPTER 3 - NATIONAL HEALTH PERFORMANCE AUTHORITY

 

Outline of Chapter

 

The Chapter (added by item 130 of Schedule 1 to the Bill) establishes the National Health Performance Authority (the Performance Authority), and provides for its functions, powers, membership, committees, staffing and some elements of its procedures. 

 

The Performance Authority is an important part of the national health reform agenda, and will provide independent monitoring and reporting of the performance of important elements of the health system. 

 

Detailed Explanation

 

Part 3.1 - Introduction provides an outline of the Chapter [section 58] .

 

The Bill inserts a new provision which acknowledges the role of state and territory health ministers as health system managers in relation to LHNs and public hospitals.  The provision requires that the Performance Authority is to have regard to this role of state and territory health ministers in performing its functions in relation to LHNs and public hospitals [section 58A] .

 

Part 3.2 - Performance Authority’s establishment, functions, powers and liabilities

This Part establishes the Performance Authority as a statutory authority [section 59] and sets out its functions [section 60] .

 

These functions include monitoring and reporting on the performance of local hospital networks, public and private hospitals, primary health care organisations and other bodies that provide health care services, and publishing such reports.   

 

Other functions include formulating performance indicators, collecting, analysing and interpreting performance information, and promoting, supporting, encouraging, conducting and evaluating research. The Minister may also specify functions for the Performance Authority, and request advice about particular matters [paragraphs 60(1)(f) and (g)]

 

The Bill inserts a new requirement which provides that the Minister may only confer additional functions on the Performance Authority under proposed paragraph 60(1)(f) with the prior agreement of COAG.  Subsection 60(3A) provides that COAG is to agree to the conferral of additional functions by written resolution passed in accordance with procedures determined by COAG.

 

The original Bill provided that the Minister may confer additional functions on the Performance Authority without broader consultations.  Section 60 now better reflects the cooperative approach to health system delivery and oversight encapsulated in the Heads of Agreement - National Health Reform.

 

The Minister may make a legislative instrument setting out rules for the Performance Authority in monitoring performance and preparing and publishing reports [section 65] .

 

Subsection 60(2) clarifies that hospital services provided in a hospital are taken to be provided by a hospital.  This ensures that services provided by doctors who are not employed by a hospital are taken into account in reporting on the hospital’s performance. 

 

Subsections 60(2A) and (2B) allow the scope of the Performance Authority’s functions to be amended by providing that subparagraph 60(1)(a)(v) only applies to a particular body or organisation, or a class of bodies or organisations, if COAG has agreed that it should by written resolution, passed in accordance with procedures determined by COAG.

 

The original Bill provided that the Performance Authority’s functions include monitoring and reporting on the performance of LHNs, public and private hospitals, primary health care organisations and other bodies or organisations that provide health care services.  The Performance Authority is not currently limited as to what bodies or organisations its powers can be amended to cover.

 

Subsection 60(3) clarifies that the Performance Authority may make use of performance indicators and standards other than those it has formulated itself in monitoring and reporting on performance.  The performance indicators it formulates may draw on any other specified material, as it exists at a particular time or as it is varied [section 63] .  This will ensure that the Performance Authority can draw on the work of other bodies working in the area, and avoid the administrative burden of reformulating indicators as they are varied by other bodies.

 

The Minister may make a legislative instrument directing the Performance Authority to formulate performance indicators about a particular matter [section 66] .

 

Subsection 60(4) clarifies that formulations of performance indicators by the Performance Authority are not legislative instruments.  This is because they do not state the law, in that they do not impose duties or obligations on any person.

 

Subsection 60(5) provides that instruments made by the Minister specifying functions for the Performance Authority are not subject to the operation of the Legislative Instruments Act 2003 .  While these instruments do impose legal obligations on the Performance Authority, they are not general statements of the law applying to any other person.  It is expected that the Minister will usually be making these instruments at the request of the Australian Health Ministers’ Conference or to give effect to COAG agreements.  It is not appropriate that instruments giving effect to intergovernmental agreements to confer additional functions on the Performance Authority should be subject to disallowance.

 

In carrying out its functions the Performance Authority is to have regard to relevant intergovernmental agreements and COAG decisions, but may have regard to other matters [section 61] .  Once the National Health Reform Agreement foreshadowed at the COAG meeting on 13 February 2011 is concluded, this section will require the Performance Authority to have regard to the Agreement.

 

If the Performance Authority prepares a report which shows poor performance by a local hospital network, a public or a private hospital, a primary health care organisations or another body that provides health care services it must give a draft to the manager of the entity or facility and invite written comments within 30 days before finalising the report.  This is intended to ensure that managers of health entities or facilities are aware of any potential adverse reports by the Performance Authority, and have an opportunity to provide mitigating information [section 62] .

 

The Bill inserts new section 62 to set out new arrangements surrounding the activities the Performance Authority will undertake in support of its reporting function.  The amendments clearly articulate the role of state and territory health ministers as system managers in relation to LHNs and public hospitals, and set out the primary object of the section to be one of providing assistance to health ministers in carrying out their role as health system managers in relation to LHNs and public hospitals.  

 

Where the Performance Authority prepares a report which shows that an LHN or public hospital is performing poorly, it must give a draft of the report to the state/territory health minister.  The provision allows the minister 30 days from receipt in which to respond to the Performance Authority.  The Performance Authority will be required to have regard to any comments provided by a state/territory health minister.

 

The original Bill required the Performance Authority to provide a draft report indicating poor performance by an entity to the manager of a relevant entity, to allow contextual information to be provided which might vary an assessment of performance.  This has been amended resulting in the consultation arrangements better reflecting the role of states and territories as health system managers for public hospitals and LHNs.

 

After relevant state/territory health ministers have been provided the opportunity to comment on a draft performance report, the Performance Authority will be required to distribute a final draft to relevant state/territory health ministers and provide a further 15 days in which to comment.  Again, the Performance Authority will be required to have regard to any comments received from a state/territory health minister.

 

The Performance Authority will also be required to provide the manager of an LHN or hospital with a copy of a report at least 15 days before completion if that report will indicate poor performance on the part of the LHN or hospital.  The final draft report is provided for information only, and does not carry with it an opportunity for the manager of an LHN or hospital to provide feedback to the Performance Authority. 

 

Amendment has been made in the original Bill that replaces a provision which requires the Performance Authority to distribute a copy of a draft report to the entity manager of the poorly performing LHN or hospital.  This is because the appropriate conduit for feedback on a report of poor performance of an LHN or hospital in a state or territory is through the relevant health minister as system manager.  It is expected that state and territory health ministers will organise matters within their own administrative arrangements to ensure appropriate flows of communication between LHNs, hospitals and the health minister.

 

Subsection (7) of section 62 will provide the Performance Authority with a broad opportunity to consult with such persons and bodies as it considers appropriate when preparing its reports.  In the primary care space, this will allow the Performance Authority to consult directly with Medicare Locals, or with the Commonwealth Government as system manager of Medicare Locals, if a report is to indicate poor performance. 

 

Subsection (7) will also allow the Performance Authority to consult with states and territories in relation to matters which do not involve public hospitals or LHNs.  For example, some states are involved in delivering primary healthcare services in more remote locations.  This subsection will ensure that the Performance Authority can discuss a report of poor performance with the relevant health minister.

 

Subsection (8) clarifies the operation of subsection (7) by removing the obligation on the Performance Authority to provide natural justice directly to LHNs and public hospitals which are likely to be the subject of a report of poor performance.  This reflects the lines of communication preferred by state and territory health ministers, and the role of those ministers as health system managers.  As previously noted, it is expected that state and territory health ministers will organise matters within their own administrative arrangements to ensure appropriate flows of communication between LHNs, hospitals and the health minister in relation to potential reports of poor performance.

 

The removal of any obligation to provide procedural fairness is a requirement given previous decision of the High Court which would otherwise impose an obligation on the Performance Authority to provide procedural fairness regardless of whether the other provisions of the legislation attempted to limit the path of communications to that between the Performance Authority and state/territory ministers.

 

The Constitutional limits for the Performance Authority’s functions are set out in section 64 .

 

The Bill inserts section 66A, which provides that COAG may make written policy principles about the performance of the Performance Authority’s functions.  In turn, the Performance Authority is required to perform its functions in a manner that is not inconsistent with the policy principles.  The Performance Authority will be required to publish the policy principles on its website.

 

This provision ensures that COAG retains an ability to set parameters around the operations of the Performance Authority in a way which is binding and which does not rest in the hands of a single jurisdiction.

 

The policy principles are not legislative instruments.

 

The Performance Authority is given the power to do all things necessary or convenient to be done in performing its functions.  As a Commonwealth body it contracts, holds assets and incurs liabilities, and receives money on behalf of the Commonwealth, and has the privileges and immunities of the Crown in right of the Commonwealth [sections 67 to 69] .

 

Part 3.3 - Constitution and membership of the Performance Authority

This part establishes the Performance Authority as a body corporate with a seal, able to deal with property and sue and be sued.  Judicial bodies and officers are to take judicial notice of the seal [section 70].

 

The Performance Authority is to consist of a Chair, a Deputy Chair and five other members [section 71] .

 

The Minister is responsible for appointing all the Board members, including the Chair.  The Deputy Chair must be appointed with the agreement of the State Premiers.  The five other members must be appointed with the agreement of the Prime Minister and the State Premiers. At least one member of the Performance Authority must have substantial experience or knowledge of, and significant standing in, regional or rural health care.  Members of the Performance Authority can be appointed on either a full-time or part-time basis [section 72] .

 

A member can be appointed for up to a maximum five year period [section 73] , but may be re-appointed.

 

The Minister may appoint persons to act as Chair, Deputy Chair or member of the Performance Authority during vacancies or when appointed members are absent [ section 74]

 

Part 3.4 - Terms and conditions for members of the Performance Authority

Persons appointed to the Performance Authority are to receive remuneration as determined by the Remuneration Tribunal, and allowances as prescribed in the regulations [section 75] .  Full-time members are entitled to recreation leave as determined by the Tribunal, and other leave as determined by the Minister, and

part-time members may be granted leave of absence by the Chair [section 79] .

 

Members are required to disclose to the Minister all interests that conflict or may conflict with their role as a member [section 76] .  A member must also inform other Performance Authority members as soon as they become aware of an interest in a matter being considered by the Performance Authority, and may not be present or take part in consideration of the matter unless the other members determine otherwise.  The affected member must not be present or take part in deliberations surrounding a question of their participation in matters which involve a conflict of interest [section 77] .  Full-time members of the Performance Authority may not take other paid employment except with the approval of the Minister, and part-time members may not take part in paid employment if it may conflict with their appointment [section 78] .

 

Members may resign by writing to the Minister [section 80] , and the Minister may terminate a Performance Authority member’s appointment [section 81]

 

The Minister may determine terms and conditions for Performance Authority members in relation to matters not dealt with in the Act [section 82] .

 

Part 3.5 - Decision-making by the Performance Authority

The Performance Authority is to hold the meetings necessary to perform its functions, and the Chair may convene a meeting at any time [section 83] .  The Performance Authority may determine the conduct of meetings subject to this Part, and meetings must be minuted [sections 88 and 89] .

 

The Chair, or if the Chair is absent, the Deputy Chair, is to preside at meetings.  If both are absent, the members present must appoint a member to preside.  Four members constitute a quorum, and a question is decided by a majority of members present and voting. The person presiding at the meeting has a casting vote as well as a deliberative vote [sections 84 to 86] .

 

The Performance Authority may make a decision outside a meeting if it has decided on a method for making such decisions in relation to particular matters.  Members who would not have been entitled to take part in such a decision at a meeting, because of a conflict of interest, are not entitled to take part in an out of meeting decision [section 87] .  This ensures the Performance Authority is able to operate flexibly and respond rapidly.

 

Part 3.6 - Delegation by the Performance Authority

The Performance  Authority may delegate any or all of its powers and functions (other than dealing with legislative instruments or advising the Minister) to a member, the CEO, or an SES or acting SES employee.  The delegate must comply with any directions from the Performance Authority [section 90] .

 

Part 3.7 - Chief Executive Officer of the Performance Authority

There is to be a Chief Executive Officer (CEO) for the Performance Authority (referred to as the Performance Authority CEO) responsible for the day to day administration of the Performance Authority, acting in accordance with the policies and directions of the Performance Authority [sections 91 and 92] .  

 

However, the Performance Authority cannot direct the Performance Authority CEO in performing functions or exercising powers under the Financial Management and Accountability Act 1997 and Public Service Act 1999 [section 126] .

 

The Performance Authority is to appoint the Performance Authority CEO after consulting the Minister [section 93]

 

Item 132 in the transitional provisions in Part 2 of Schedule 1 of the Bill provides that the Minister may appoint an acting CEO by written instrument within the 6-month period beginning at the commencement of this item, so long as no previous appointment has been made.  This provision enables the Minister to appoint an acting CEO to undertake functions in accordance with the Act to allow commencement of the Performance Authority’s activities while the members locate a suitable permanent CEO.

 

The Performance Authority may determine other terms and conditions not specified in the Act [section 101] with the written agreement of the Minister.  The Performance Authority CEO must not engage in other paid employment without approval from the Performance Authority [section 95] and material personal interests that conflict or may conflict with her or his position must be disclosed to the Minister and the Performance Authority [section 98]

 

The Performance Authority CEO’s remuneration and recreation leave conditions will be determined by the Remuneration Tribunal and allowances will be set in the regulations [sections 96 and 97]

 

 

The Bill provides that the Performance Authority may not delegate any of its functions with respect to Part 3.7 [paragraph 90(3)(c)] .   Previously, section 90 of the Bill empowers the Performance Authority to delegate by writing any or all of its powers and functions (apart from those dealing with legislative instruments or providing advice to the Minister) to a Performance Authority member, the CEO, or an SES or acting SES employee.  As a consequence of government amendments set out under clauses (9) to (25) to the Bill, the Performance Authority would otherwise have been empowered under section 90 to delegate its powers to determine terms and conditions in relation to the CEO’s employment to the CEO. Paragraph 90(3)(c) addresses this issue.

 

The Bill provides that the Performance Authority is to appoint the Performance Authority CEO after consulting with the Minister [section 93].   The original Bill provided for the Minister to appoint the CEO after consulting with the Performance Authority, as is common for Financial Management and Accountability Act agencies.  However, in view of the constitution and role of the Performance Authority, with members nominated by COAG and exercising functions across the Commonwealth, states and territories, the Government believes it more appropriate for the CEO to be appointed by the Performance Authority, after consultation with the Minister.

 

The Bill (as a consequence of the amendments) empowers the Performance Authority rather than the Minister to:

  • appoint an acting CEO [section 94] ;
  • provide approval for the CEO to engage in other paid employment [section 95] ;
  • grant leave to the CEO, other than recreation leave, and determine the terms and conditions as to remuneration or otherwise, and other terms and conditions not specified in the Act; [section 97]
  • accept the CEO’s resignation [section 99] ;
  • after consulting with the Minister, terminate the CEO’s appointment in the event of misbehaviour, incapacity, bankruptcy, frequent absence without leave, concealing a conflict of interest or engaging in unapproved employment [section 100] .

 

Subsection 100(1A) provides that the Performance Authority may terminate the CEO’s appointment if it is satisfied that his or her performance has been unsatisfactory.  This provision ensures consistency with subsection 45(2) of the National Health and Hospitals Network Act 2011

 

 

 

Part 3.8 - Staff and Consultants

Performance Authority staff are to be engaged under the Public Service Act 1999 , and the Performance Authority CEO and staff together constitute a Statutory Agency under that Act [section 102]

 

The Performance Authority may also utilise the services of other Commonwealth and State public servants or employees [section 103] .  Similarly, consultants may also be engaged to assist the Performance Authority [section 104] .  The use of personnel engaged by the Performance Authority, but not directly employed by the Performance Authority, will enable it to meet different work cycles and scheduling demands, and is likely to be particularly useful during the establishment phase.

 

Part 3.9 - Committees

The Performance Authority may establish committees to provide advice or assistance to the Performance Authority in the performing its functions.  The committees may be made up wholly of Performance Authority members, wholly of persons who are not members, or a combination of members and non-members.  The Performance Authority may determine terms of reference and procedures for a committee [section 105] and may assist the subcommittee by providing information and making available resources and facilities [section 107] .

 

Persons appointed to a committee are to receive remuneration as determined by the Remuneration Tribunal, and allowances as prescribed in the regulations.  However, members are not entitled to remuneration if they are employed full-time by a State government [section 106]

 

Part 3.10 - Reporting obligations of the Performance Authority

The Minister may require the Performance Authority to prepare reports and documents on particular matters, and may publish these [section 108] .  The Performance Authority is also required to keep the Minister informed of its work, and provide reports, documents and information regarding its operations to the Minister as appropriate [section 109]

 

If the Performance Authority gives advice to the Minister about a particular matter under paragraph 60(1)(g) the Authority must publish on its website within twelve months a statement that advice about a matter was provide to the Minister, and when it was provided [section 110] .  This is intended to provide transparency around the sorts of advice that are sought and provided.   It is not intended to require the Performance Authority to publish the substance of the advice, as this may include confidential material.

 

The Performance Authority is to prepare and provide to the Minister an annual report for presentation to the Parliament [subsection 111(1)]  The Performance Authority is also required, as soon as practicable after 30 September next following the end of the financial year,  to prepare and give to the Minister for presentation to the Parliament, a report consisting of a compilation of the reports prepared by the Performance Authority under paragraph 60(1)(a) (matters relating to performance of bodies providing health care services such as local hospital networks and public hospitals) [subsection 111(2)] .    The Minister is required to present the report described in subsection 111(2) to the Parliament as soon as practicable [subsection 111(3)].

 

Part 3.11 - Planning

The Performance Authority is required to prepare and provide to the Minister a strategic plan covering the next three years at least once every three years.  The plan must set out the strategies and policies the Performance Authority will follow to achieve its objectives, as well as any other matters required by the Minister.  The first plan must be prepared in the first year of the Authority’s operations.

 

The Performance Authority must keep the Minister informed of changes to the plan, and any matters that might impact on achieving its objectives. 

 

The Minister may give the Performance Authority guidelines on the matters to be covered by the plan, and the matters that should be reported as affecting achievement of the Authority’s objectives.  These guidelines are not legislative instruments, as they are administrative in character [section 112] .

 

Subsection 112(3), will explicitly require the Performance Authority to invite each state and territory health minister to provide comments on the Performance Authority’s draft strategic plan before it is finalised.  The purpose of this provision is to ensure that all jurisdictions will have an opportunity to comment on the Performance Authority’s proposed activities and guide the formation of its objectives over the life of the plan.  States will have 30 days to provide any comments on the strategic plan, and the Performance Authority will be required to have regard to any comments received from State and Territory ministers.

 

Part 3.12 - Secrecy

A person that is or has been an official of the Performance Authority (including members, the CEO, staff and consultants) and has obtained information in the course of their work relating to another person (“protected information”) commits an offence if they disclose or use the information, unless the disclosure or use is authorised by Part 4.12 or is compliant with another Commonwealth or a prescribed State law [subsections 113(1) and (2)]

 

In addition, a person who is a member of a committee established by the Commission under section 105 and who receives protected Commission information under subsection 115(1) commits an offence if they disclose or use the information, unless the disclosure or use is for the purposes of the Act, including the performance of the functions of the committee, or is in the course of the person’s service on the committee [subsections 115(2) and (3)] .  

 

The penalty for the offence (two years imprisonment or 120 penalty units or both) is consistent with penalties for similar offences under other health legislation such as the National Health Act 1953 , Health Insurance Act 1973 and Private Health Insurance Act 2007 and reflects the potential seriousness of improper use or disclosure of protected information.

 

Under subsection 13.3(3) of the Criminal Code a defendant being prosecuted for this offence and wishing to rely on an exception is required to demonstrate that disclosure was covered by one of the exceptions to the offence.  It would be difficult for the prosecution to bear the burden of demonstrating that the disclosure was not covered by one of the exceptions, whereas a person disclosing information should reasonably be aware of the basis for their disclosure.  

 

An official of the Performance Authority is not to be required to produce or disclose protected information to a court or tribunal except where it is necessary for giving effect to the Act [subsection 113(3)] .

 

The exceptions from the offence set out in the Part include:

  • disclosure or use for the purposes of the Act, for the performance of the Authority’s functions, or in the course of the official’s employment or service with the Authority [section 114] ;
  • disclosure to a committee established by the Performance Authority [section 115] ;
  • disclosure to the Minister [section 116] ;
  • disclosure to the Secretary or an APS employee of the Department authorised to receive it [section 118] ;
  • disclosure to a Royal Commission (in which case the Chair of the Performance  Authority can impose conditions on the use of the information) [section 119] ;
  • disclosure of information about the affairs of a person if the person has consented [section 122] ;
  • disclosure of information that is already lawfully publicly available [section 123] .

 

Section 116A provides that the Performance Authority may disclose protected Performance Authority information to the Health Minister of a State or Territory.  The purpose of this provision is to ensure that the States and Territories have access to protected information on the same basis as the Commonwealth Health Minister.  This provision does not oblige an official of the Performance Authority to disclose protected Performance Authority information to a State or Territory health minister.  Accordingly, the Performance Authority has discretion on whether to disclose protected information.

 

Where the Performance Authority has been requested to provide protected Performance Authority information by a State or Territory which relates to information originating from a different jurisdiction, it is expected that the Performance Authority will consult with the affected state or territory before disclosing such information.

 

It is no longer envisaged that the Performance Authority will be required to disclose protected information to the Treasurer.

 

The conditions that may be imposed under section 119 are not a legislative instrument as they are limited to the particular case, and are not a general statement of the law.

 

There are two other exceptions.  If the Chair of the Performance Authority is satisfied that particular protected information will assist one of a number of agencies, bodies or individuals to perform or exercise their powers or functions an authorised officer may disclose that information.  However, the recipient of the protected information must not use it for a purpose other than that for which it was given [section 120]

 

Similarly, if the Chair of the Performance Authority is satisfied that particular protected information will assist an agency, body or person to conduct research an authorised officer may disclose that information, providing that the information is not likely to enable the identification of a particular patient [section 121]

 

The Chair of the Performance Authority may delegate any function or powers under this Part to the Performance Authority CEO, who must comply with any directions from the Chair in exercising the delegation [section 124] .

 

Part 3.13 - Other matters

The Minister may by legislative instrument give general directions to the Performance Authority in relation to the performance of its functions and the exercise of its powers [section 125] .  The Government intends to use this power to ensure that the Performance Authority carries out the any detailed tasks specified in the National Health Reform Agreement once it is concluded.

 

To the extent to which reports prepared or published by the Performance Authority under the Act contain personal information, the disclosure or use of this personal information is taken to be authorised by law for the purposes of the Privacy Act 1988 [section 127] .  However, section 128 in Chapter 4 (see below) prevents the Performance Authority from publishing information that is likely to enable the identification of a particular patient without consent.

 

 



ADDITION OF CHAPTER 4 - MISCELLANEOUS

 

This Chapter includes a provision relating to privacy and confidentiality, a statement of the relation between this Act and State laws, and a regulation making power.

 

The Commission or the Performance Authority must not publish or disseminate information likely to lead to the identification of a particular patient without consent.  Consent may be given by

  • the patient, if the patient is aged 18 or more; or
  • the patient’s surviving partner, if the patient is dead; or
  • a person authorised under the regulations to give consent [section 128] .

 

The Act is intended to operate concurrently with State law to the extent possible [section 129] .

 

Regulations can be made prescribing matters required or permitted to be prescribed under the Act, or necessary or convenient to give effect to the Act [section 130]