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Australian Institute of Health and Welfare Amendment Bill 2018

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2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

AUSTRALIAN INSTITUTE OF HEALTH AND WELFARE AMENDMENT BILL 2018

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Health, the Hon Greg Hunt MP)



 





AUSTRALIAN INSTITUTE OF HEALTH AND WELFARE AMENDMENT BILL 2018

 

OUTLINE

The Australian Institute of Health and Welfare Amendment Bill 2018 will make minor amendments to the Australian Institute of Health and Welfare Act 1987 to replace the representative-based structure of the Australian Institute of Health and Welfare (the Institute) Board with membership consisting of a collective mix of skills from a range of different fields.

 

The Bill also seeks to streamline appointment processes to the Board, implement longer appointment terms for members, along with a range of other administrative measures to improve the operations of the Institute.

 

The need for this Bill arose from recommendations of the Independent Review of the Australian Institute of Health and Welfare (the Independent Review) conducted in 2015.  The Independent Review noted that membership of the Board was based on stakeholder or agency representation rather than individual skills, knowledge and experience.  The Independent Review found that the Board was too heavily focussed on operational as opposed to strategic matters.

 

To address these concerns, the Bill implements a skills-based Board consisting of a Chair, a Deputy Chair, a Chief Executive Officer (CEO), not more than three members nominated by State Health Ministers and not more than six other members.  Members will collectively possess skills or experience or significant standing in a range of fields including public administration in relation to health, welfare or housing, Aboriginal and Torres Strait Islander health and welfare, financial management, corporate management and law.

 

The Bill will also streamline appointment processes to the Board, which will become the responsibility of the Minister for Health rather than the Governor-General.  The Minister will also be responsible for decisions on the terms of employment for members including resignations and terminations.

 

Members will be appointed for up to five year terms on the Board, which will bring greater stability and aligns the Institute with other Health portfolio agencies.      

 

The Bill will change the title of the Director to CEO and includes transitional provisions to ensure that the Chair and CEO can continue in their positions for the balance of their current terms.

 

The Bill will remove the requirement for the Institute to seek agreement from the Australian Bureau of Statistics for the collection of health and welfare-related information and statistics.  Instead, the Institute will consult with the Australian Bureau of Statistics as necessary on such matters.  The Bill also removes the need for the Institute to seek written approval from the Minister for Health for contract limits.

 

Financial Impact Statement

There is no financial impact from this Bill.



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

AUSTRALIAN INSTITUTE OF HEALTH AND WELFARE AMENDMENT BILL 2018

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Australian Institute of Health and Welfare Amendment Bill 2018 will make minor amendments to the Australian Institute of Health and Welfare Act 1987 to replace the representative-based structure of the Australian Institute of Health and Welfare (the Institute) Board with membership consisting of a collective mix of skills from a range of different fields.

 

The Bill also seeks to streamline appointment processes to the Board, implement longer appointment terms for members, along with a range of other administrative measures to improve the operations of the Institute.

 

The need for this Bill arose from recommendations of the Independent Review of the Australian Institute of Health and Welfare (the Independent Review) conducted in 2015.  The Independent Review noted that membership of the Board was based on stakeholder or agency representation rather than individual skills, knowledge and experience.  The Independent Review found that the Board was too heavily focussed on operational as opposed to strategic matters.

 

To address these concerns, the Bill implements a skills-based Board consisting of a Chair, a Deputy Chair, a Chief Executive Officer (CEO), not more than three members nominated by State Health Ministers and not more than six other members.  Members will collectively possess skills or experience or significant standing in a range of fields including public administration in relation to health, welfare or housing, Aboriginal and Torres Strait Islander health and welfare, financial management, corporate management and law.

 

The Bill will also streamline appointment processes to the Board, which will become the responsibility of the Minister for Health rather than the Governor-General.  The Minister will also be responsible for decisions on the terms of employment for members including resignations and terminations.

 

Members will be appointed for up to five year terms on the Board, which will bring greater stability and aligns the Institute with other Health portfolio agencies.    

 

The Bill will change the title of the Director to CEO and includes transitional provisions to ensure that the Chair and CEO can continue in their positions for the balance of their current terms.

The Bill will remove the requirement for the Institute to seek agreement from the Australian Bureau of Statistics for the collection of health and welfare-related information and statistics.  Instead, the Institute will consult with the Australian Bureau of Statistics as necessary on such matters.  The Bill also removes the need for the Institute to seek written approval from the Minister for Health for contract limits.

 

Human rights implications

The Bill does not engage any of the applicable rights or Freedoms.

 

Conclusion

The Bill is compatible with human rights as it does not raise any human rights issues. In assessing the Bill, consideration was given to the right to the enjoyment of the highest attainable standard of physical and mental health as contained in article 12(1) of the International Convenant on Economic, Social and Cultural Rights. 

 

The effects of the Bill are limited to governance arrangements and other measures designed to improve the operations of the Institute and will not impact on individuals.

 

 

The Hon Greg Hunt MP, the Minister for Health

 



AUSTRALIAN INSTITUTE OF HEALTH AND WELFARE AMENDMENT BILL 2018

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

This clause provides that the Act, once enacted, may be cited as the Australian Institute of Health and Welfare Amendment Act 2018 .

 

Clause 2 - Commencement

This clause provides that the Act will commence on 1 July 2018.

 

Clause 3 - Schedules

This clause provides that legislation specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item has effect according to its terms.

 

Schedule 1 amends the Australian Institute of Health and Welfare Act 1987 (the AIHW Act) and Schedule 2 describes transitional arrangements.

 

SCHEDULE 1 AMENDMENTS

 

PART 1 - MAIN AMENDMENTS

This schedule contains amendments to the AIHW Act.

 

Item 1 - after Section 2

This item provides a simplified outline to assist with the interpretation of provisions in the Act.  It is not intended to be a comprehensive list and more detailed information is contained in the substantive provisions.

 

Items 2 and 12 - Subsection 3(1), Subsection 3(2)

Subsection 3(1) is removed as it is unnecessary to have subsections for this part of the AIHW Act.

 

Following on from the above change, Subsection 3(2), including the note, is repealed.  This is an unnecessary provision as rules about acting appointments are addressed in the Acts Interpretation Act 1901 (Acts Interpretation Act).

 

Items 3-11 - Subsection 3(1)

This subsection contains definitions relating to the Board and its membership.

 

The definition of ‘appoint’ has been repealed in Item 3.  This removes an unnecessary provision as rules about appointment, and re-appointments, are addressed in the Acts Interpretation Act.

 

Item 4 defines the Board and provides updated definitions for the Chief Executive Officer of the Institute and Chair of the Board.

 

Items 5 and 7 repeal the definitions of Chairperson and Director.  These are replaced by definitions contained in Item 4, Chair and Chief Executive Officer, respectively.

Item 6 defines the Deputy Chair of the Board, while Item 8 states that a member refers to members of the Board including the Chair and Deputy Chair.  The membership structure of the Board is defined at Item 18, new section 9.

 

Item 9 defines paid work, which is outlined in the terms and conditions of employment for Board members (Item 18, new subsection 12B) and the Chief Executive Officer (Item 21, new subsection 18B).  This is a standard provision for Commonwealth Boards that applies to roles performed by members outside their official duties on the Board.  The Chief Executive Officer is precluded from undertaking outside employment, without the Board’s approval, reflecting that this is a full-time position.

 

Item 10 repeals the definition of State Housing Department.  This is a redundant definition with the revised membership structure of the Board.

 

Item 11 inserts a definition for state or territory agencies.

 

Items 13 and 14 - Paragraphs 5(1)(a) and 5(1A)(a)

This item removes the requirement for the Institute to seek the agreement of the Australian Bureau of Statistics to collect health and welfare-related information and statistics. Instead, the Institute will consult with the Australian Bureau of Statistics, as necessary, on the proposed data collection activities. 

 

This will require amendments to:

·          Paragraph 5(1)(a) for the collection of health-related information and statistics;

·          Paragraph 5(1A)(a) for the collection of welfare-related information and statistics.

 

The intent is to remove limitations on the Institute’s current functions, noting that data collection activities are a relationship management issue between the two organisations.

 

There is no change in the functions of the Australian Bureau of Statistics, as referenced in Section (5)(3) of the AIHW Act.

 

Items 15 and 17 - Subsections 7(1) and 7(1D)

Directions by the Minister to the Institute under subsection 7(1) are notifiable instruments because they are not of legislative character. These directions relate to the Institute with respect to the performance of its functions or the exercise of its powers.  This corrects the current provision which did not specify the nature of these directions.  

 

Subsection 7(1D) clarifies that the direction is to be provided in writing by the Minister to the Chair of the Board as soon as practical.

 

Item 16 - after Subsection 7(1A)

This subsection is updated to reflect the establishment of a new Board.

 

References to the ‘Chairperson’ are replaced with ‘Chair’ .

Item 18 - Division 2 of Part II

This item repeals Division 2, Part 2 of the AIHW Act and replaces it with Division 2 - Board of the Institute. 

 

This item describes the functions of the Board, its membership, appointment processes, terms and conditions of employment of members and meeting procedures.

 

Subdivision A - Establishment and functions of the Board

Subdivision A establishes a Board and outlines its key functions.

 

New section 8 - Establishment of the Board

This new section establishes the Board of the Institute.

 

New section 8A - Functions of the Board

New section 8A outlines the functions of the Board.  The Board is responsible for the proper, efficient and effective performance of the Institute’s functions (new subsection 8A(1)) and has the power to do all things necessary relating to the performance of its functions (new subsection 8A(2)).

 

New subsection 8A(3) provides that activities undertaken by the Board in the name of, or on behalf of the Institute, are taken to have been done by the Institute.

 

Subdivision B - Membership of the Board

Subdivision B outlines the composition of the Board.

 

New section 9 - Membership

The Board will consist of up to 12 members.  This will include a Chair, a Deputy Chair, the Institute’s Chief Executive Officer, not more than three members nominated by State Health Ministers and not more than six other members.

 

This skills-based structure replaces the current Board which consists of representative-based and ex-officio positions.  The new structure aligns with the approach used by the other Health portfolio agencies such as the Australian Commission on Safety and Quality in Health Care.

 

Subdivision C - Members of the Board

Subdivision C outlines the appointment processes and the terms and conditions of employment for members of the Board.

 

New section 10 - Application of this Subdivision

Provisions which determine the appointment processes and the terms and conditions of employment for members do not apply to the Chief Executive Officer.

 

These matters are addressed in Division 4 for the Chief Executive Officer position (Item 21).



 

New section 11 - Appointment of members

Members

This new section will streamline appointment processes to the Board.  Previously, a number of positions on the Board required approval from the Governor-General. This is a time consuming process involving coordination between different agencies.

 

New subsection 11(1) provides that Board members are to be appointed by the Minister, on a part-time basis, and by written instrument.

 

Chair and Deputy Chair

New subsection 11(2) specifies that the Minister is to appoint the Chair and Deputy Chair.  These members will not be appointed through a vote of the Board or some other election process.

 

Eligibility for appointment

New subsection 11(3) specifies that Board members will possess appropriate skills or experience, or significant standing in, one or more of the following fields:

o    public administration in relation to health, welfare or housing;

o    education;

o    Aboriginal and Torres Strait Islander health and welfare;

o    data and data standards;

o    statistics and statistical methods;

o    performance measurement and reporting;

o    financial management;

o    corporate management;

o    consumers interests;

o    law.

 

Previously, members were selected on the basis of the stakeholder group or organisation which they represented rather than their individual skills, knowledge or experience.

 

The Board will collectively possess expertise in a range of fields including social policy issues, statistics, finance, business and law.  This broad mix of skills will ensure that the Board is able to focus on the strategic issues and challenges faced by the Institute.   

 

The Board will also include up to three members nominated by State Health Ministers.  This will help ensure that the Institute continues to engage with states and territories on the collection and production of data and statistics.

 

New section 11A - Term of appointment

This new section introduces longer appointment terms for members of the Board.  The Minister has the flexibility to appoint members for up to five years as specified in an Instrument of Appointment.

 

The introduction of longer term appointments is consistent with the approach used by other health agencies and should ensure greater stability on the Board.

The note refers to Section 33AA of the Acts Interpretation Act, which provides that a person or body empowered with the ability to make an appointment is also empowered with the ability to make a re-appointment.

 

New section 11B - Acting appointments

This new section establishes provisions for acting appointments of members, apart from the Chief Executive Officer, and is designed to cover periods of short-term vacancies or absences .

 

New subsection 11B(1) introduces a provision to allow the Deputy Chair to act as the Chair during a vacancy in the office of the Chair or during any period, or during all periods, when the Chair is absent from duty or from Australia or is unable to perform the duties of the office.

 

This measure is designed to ensure that the Board has operational continuity should the Chair’s position become vacant or absent for up to three months.  For vacancies or absences in the Chair’s position which extend beyond three months, approval from the Prime Minister, or at his discretion, Cabinet, will be required in accordance with the Cabinet Handbook.

 

New subsection 11B(2) allows for a member to act as the Deputy Chair during a vacancy in the office of Deputy Chair or during any period, or during all periods, when the Deputy Chair is absent from duty or from Australia or is unable to perform the duties of the office.  This appointment is to be made by the Minister by written instrument.

 

New subsection 11B(3) provides that a person can act as a member, other than the Chair or Deputy Chair, during a vacancy in the office of a member or during any period, or all during periods, when the member is absent from duty or from Australia or is unable to perform the duties of the office.  This appointment is to be made by the Minister by written instrument.

 

The note refers to Sections 33AB and 33A of the Acts Interpretation Act, which contains information on rules for acting appointments.

 

New section 12 - Remuneration

This new section prescribes remuneration for members.

 

Members are to be paid by a determination made by the Remuneration Tribunal, or if no determination is in place, as prescribed by regulations at new subsection 12(1).  The Tribunal is empowered to determine any matter that is significantly related to remuneration, which is taken to extend to allowances such as travelling allowances (but not annual allowances).

 

The Tribunal is not obliged to make such determinations. Where such determinations have not been made, a default provision is included that refers to prescribing allowances at new subsection 12(2).



 

New section 12A - Leave of absence

The new section states that the Minister may grant leave of absence for members,  

excluding recreational leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

 

New section 12B - Outside employment

This is a standard provision which applies to governance arrangements of Commonwealth Boards.  New subsection 12B(1) restricts members from taking up paid work that conflicts or could conflict with the performance of his or her duties on the Board.  The provision places the onus on members to report such conflicts.  

 

Under new subsection 12B(2), paid work provisions do not apply to members who are an official of a state or territory agency.  These officials are subject to separate state and territory legislation covering conditions of employment.  

 

New section 12C - Other terms and conditions

This new section provides that a Board member holds office on the terms and conditions, not covered by this Act, that are determined by the Minister.

 

New section 13 - Resignation

New subsection 13(1) specifies that a member must resign in writing to the Minister and new subsection 13(2) provides that the resignation is effective on the day it is received by the Minister or on a later day as specified in the resignation letter.

 

Previously, the Governor-General was notified about resignation decisions.

 

New section 13A - Termination of appointment

New subsection 13A(1) states that the Minister is responsible for terminating the appointment of a member for misbehaviour or for reasons of physical or mental incapacity.

 

New subsection 13A(2) describes further grounds for the Minister to terminate the appointment of a member including bankruptcy, being absent for three consecutive meetings (unless granted a leave of absence) or conflicts with paid work.

 

The note to new subsection 13A(2) describes the grounds for termination of appointments under Section 30 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

 

New section 13B - Disclosure of interests

This new section provides that an official of a state or territory agency who is a member of the Board is exempt from disclosure of interest provisions under Section 29 of the PGPA Act.  Disclosure of interests by these officials is subject to separate state and territory legislation.

 

Subdivision D - Meetings of the Board

Subdivision D outlines the operating procedures for meetings of the Board.

 

New section 14 - Convening of meetings

New section 14 provides that the Board must meet a minimum of three times a year, meaning that more than three meetings a year may be convened.

 

New subsection 14(2) states that the Chair is responsible for convening meetings as he or she considers necessary and new subsection 14(3) provides for the Minister to convene such meetings.

 

New section 14A - Presiding at meetings

New subsection 14A(1) provides that the Chair must preside at all meetings of the Board at which he or she is present. 

 

New subsection 14A(2) covers circumstances when the Chair is not present at a meeting of the Board. In such circumstances, the Deputy Chair must preside at the meeting.

 

New section 14B - Quorum

New subsection 14B(1) provides that a quorum is constituted by a majority of members which must include the Chair or Deputy Chair.

 

New subsection 14B(2)(a)-(b) describes circumstances where members do not take part in a meeting due to a conflict of interest under Section 29 of the PGPA Act for a particular matter or when they leave a meeting.

 

This section of the PGPA Act describes the duty to disclose interests as they apply to an official of a Commonwealth entity.  It describes how officials are required to disclose any material personal interests that relate to the affairs of the entity, the circumstances under which such rules do not apply, how and when the interest must be disclosed and the consequences of the disclosure (for example, the official must not participate at a meeting about a matter or vote on the matter).

 

Should these circumstances occur, the remaining Board members at the meeting will constitute a quorum for any deliberation or decision on a particular matter.

 

New section 15 - Voting at meetings

New subsection 15(1) states that a question arising at a Board meeting is to be determined by a majority of votes of members present, while new subsection 15(2) provides that the person presiding at the meeting has a deliberative vote and, if votes are equal, a casting vote.

 

New section 15A - Conduct of meetings

This new section provides that the Board may regulate proceedings at its meetings as it considers appropriate.

 

The note refers to Section 33B of the Acts InterpretationAct , which describes how members can participate in meetings.

 

New section 15B - Minutes

This new section requires the Board to keep minutes of its meetings.

 

New section 15C - Decisions without meetings

New section 15C sets out the methods by which the Board can make decisions without meetings.

 

All members must be informed of the proposed decision and reasonable efforts made to inform them of the proposed decision and the majority of members entitled to vote have indicated their agreement with the proposed decision (new subsection 15C(1)).

 

New subsection 15C(2) specifies that the Board must outline the method by which members are to have indicated their agreement with proposed decisions made without a meeting.

 

The Board must also keep a record of decisions made in accordance with this section (new subsection 15C(4)).

 

Item 19 - Subsections 16(7) and 16(11)

The subsections are updated to reflect the establishment of a Board.

 

References to the ‘Institute’ are replaced with ‘Board’ .

 

Item 20 - Subsection 16(15)

This subsection is updated to reflect that a member who is an official of a state or territory agency is not required to disclose any pecuniary or other interest at a Board meeting (as per Section 16(13) of the AIHW Act) merely on the basis of their position on a state or territory agency.

 

Item 21 - Division 4 of Part II

This item repeals Division 4, Part 2 of the AIHW Act and replaces it with Division 4 - Chief Executive Officer of Institute. 

 

This item outlines the functions and delegation powers of the Chief Executive Officer, along with appointment processes and the terms and conditions of employment.

 

New section 17 - Chief Executive Officer

New section 17 establishes a Chief Executive Officer of the Institute. This replaces the existing title for the position (that is, the Director).  The new title is better aligned to the duties performed in the position and is consistent the approach used by other health agencies.

 

New section 17A - Functions of the CEO

New subsections 17A(1)-(4) outline the key functions and powers of the Chief Executive Officer, which includes responsibility for day-to day administration activities of the Institute.

 

New subsections 17A(5)-(7) outline Board directions as they apply to the Chief Executive Officer and the authority for such directions.

 

The Board may give written instructions to the Chief Executive Officer about the performance of his or her functions as stipulated in new subsection 17A(5).  The Chief Executive Officer must comply with these directions (new subsection 17A(6)).

 

A direction given by the Board to the Chief Executive Officer under new subsection 17A(5) is not a legislative instrument as specified in new subsection 17A(7).  This does not seek to prescribe exemptions from requirements of the Legislation Act 2003 (Legislation Act).

 

New section 17B - Appointment

New section 17B specifies that the Chief Executive Officer is to be appointed by Board by written instrument.

 

Appointment by the Board will avoid any potential conflict of interest with the Minister.  It recognises that the Chief Executive Officer is directly accountable to the Board and is consistent with the approach used by other Commonwealth Boards (cross reference to new section 18F).

 

The Board would still be required to seek approval from the Minister on the basis that it is significant appointment.  As such, the appointment would still require approval from the Prime Minister, or at their discretion, Cabinet.

 

The note refers to Section 33AA of the Acts Interpretation Act, which provides that a person or body empowered with the ability to make an appointment is also empowered with the ability to make a re-appointment.

 

New section 17C - Term of appointment

This new section states that the Chief Executive Officer is to be appointed for a term of up to five years as specified in the Instrument of Appointment.

 

This appointment term is consistent with other members of the Board.

 

New section 17D - Acting appointments

New section 17D states that the Board is responsible for appointing a person to act as the Chief Executive Officer by written instrument.

 

This appointment will cover vacancies in the office of the CEO, or during any period, or during all periods, when the Chief Executive Officer is absent from duty or from Australia or he or she is unable to perform the duties of the office.

 

The appointment does not require consultation with the Minister, although he or she should be notified of such decisions.

 

This provision ensures that the Board has operational continuity should the Chief Executive Officer’s position become vacant or absent for up to three months.  For vacancies or absences in the Chief Executive Officer’s position which extend beyond three months, approval from the Prime Minister, or at his discretion, Cabinet, will be required in accordance with the Cabinet Handbook.

 

The note refers to Sections 33AB and 33A of the Acts Interpretation Act, which contains information on rules for acting appointments.

 

New section 18 - Remuneration

The Chief Executive Officer is to be paid by a determination made by the Remuneration Tribunal, or if no determination is in place, as prescribed by regulations at new subsection 18(1).  The Tribunal is empowered to determine any matter that is significantly related to remuneration, which is taken to extend to allowances such as travelling allowances (but not annual allowances).

 

The Tribunal is not obliged to make such determinations. Where such determinations have not been made, a default provision is included that refers to prescribing allowances at new subsection 18(2).

 

New section 18A - Leave of absence

This new section specifies that the Chief Executive Officer has recreational leave entitlements as determined by the Remuneration Tribunal (new subsection 18(A)(1)).

 

The Board may grant a leave of absence for the Chief Executive Officer, excluding recreational leave, on the terms and conditions as to remuneration or otherwise that it determines (new subsection 18(A)(2)).

 

New section 18B - Outside employment

New section 18B states that the Chief Executive Officer must not engage in paid work outside of the duties of his or her office without the Board’s approval.  This reflects that the Chief Executive Officer position is full-time as well as any potential or perceived conflicts of interest which may arise and the need to manage any such conflicts.

 

In contrast, members are appointed to the Board on a part-time basis (Item 18, new subsection 11(1)).  As such, they are able to pursue outside employment opportunities as long as it does not conflict with their performance of their duties on the Board (Item 18, new subsection 12B(1)).

 

New section 18C - Other terms and conditions

This new section provides that the Chief Executive Officer holds office on the terms and conditions, not covered by this Act, that are determined by the Board.

 

New section 18D - Resignation

New Subsection 18D(1) specifies that the Chief Executive Officer must resign in writing to the Board and new subsection 18D(2) provides that the resignation is effective on the day it is received by the Board or on a later day as specified in the resignation letter.

 

New section 18E - Termination of appointment

New subsection 18E(1) states that the Board is responsible for terminating the appointment of the Chief Executive Officer for misbehaviour or for reasons of physical or mental incapacity.

 

New subsection 18E(2) describes further grounds for the Board to terminate the appointment of the Chief Executive Officer including bankruptcy, being absent for 14 consecutive days or for 28 days in any 12 months (unless granted a leave of absence) and for engaging in paid work without approval of the Board.

 

The note to new subsection 18E(2) describes grounds for termination of appointments under Section 30 of the PGPA Act.

 

New section 18F - Certain decisions of the Board

This new section specifies that the Chief Executive Officer cannot be present during Board deliberations under this Division.  These decisions encompass appointments and the terms and conditions of employment for the position.  This removes any scope for potential or perceived conflicts of interest, given that the Chief Executive Officer is also a member of the Board.

 

Item 22 - Subsection 19(2)

This amendment reflects that there has been a change in title of the Director to Chief Executive Officer.

 

Item 23 - Section 23

This item removes the need for contract limits to be approved by the Minister.   The change will enable the Institute to pursue business opportunities, and enter into contracts, without the need for Ministerial approval.

 

The change recognises that the Institute is a corporate Commonwealth entity and that is manages its resources and contracts in accordance with the PGPA Act.

 

The change will require the repeal of Section 23(a) of the AIHW Act. 

 

Item 24 - Paragraph 24(b)

The item is updated to reflect the establishment of a Board.

 

References to the ‘Institute’ are replaced with ‘Board’ in relating to the preparation of the Institute’s annual report .

 

Item 25 - Section 28

This item outlines delegation powers of the Chief Executive Officer under the AIHW Act.

 

The Chief Executive Officer may delegate all or any of his or her functions or powers under the AIHW Act to a member of the staff of the Institute under Section 28(1)(a), which ensures that there is discretion to delegate to any person in the Institute.  The Chief Executive Officer may also delegate his functions or powers to any other person or body, subject to written approval of the Board under Section 28(1)(b).

 

Section 28(2) specifies that the delegate must comply with any written directions from the Chief Executive Officer in relation to the delegated function or power.



 

PART 2 - TRANSITIONAL PROVISIONS

 

Item 26 - Definitions

This item provides definitions for the Institute and old law.  The latter is defined as the AIHW Act which was in force prior to the commencement of this item.

 

Item 27 - Chairperson continues as Chair

This item provides that the Chairperson of the Institute immediately before the commencement of this item continues as the Chair of the Board (sub item 27(1)).

 

The Chair will continue on the terms and conditions that applied under the old law and for the balance of their term of appointment (sub item 27(1)).  

 

The Chair will continue to receive the same remuneration that applied before the commencement of this item or until a new determination comes into effect or is varied in accordance with the Remuneration Tribunal Act 1973 (Remuneration Tribunal Act).

 

Item 28 - Things done by, or in relation to, the Director of the Institute

Sub item 28(1) is a transitional provision which provides that a thing done by, or in relation to, the Director under the old law, for the purposes of the operation of any law on or after the day this item commences, is taken to have been done by, or in relation to, the Chief Executive Officer.

 

Sub item 28(2) provides that the Minister may determine, by notifiable instrument, that a specified thing done by, or in relation to, the Director under the old law does not apply.  There is a public interest in knowing whether certain things done by the Director remain effective, such as if instruments previously made remain in force.  A determination made under this provision is not a legislative instrument and does not seek to prescribe exemptions from requirements of the Legislation Act.

 

Sub item 28(3) specifies that a thing may include making an instrument.

 

Item 29 - References to the Director of the Institute in the regulations

This item specifies that a reference to the Director in regulations, made under the AIHW Act , is taken to mean the Chief Executive Officer.  This comes into effect on and after the day this item commences.

 

Item 30 - Director of the Institute continues as Chief Executive Officer

This item provides that the Director of the Institute immediately before the commencement of this item continues as the Chief Executive Officer of the Institute (sub item 30(1)).

 

The Chief Executive Officer will continue on the terms and conditions that applied under the old law and for the balance of their term of appointment (sub item 30(1)).

 

The Chief Executive Officer will continue to receive the same remuneration that applied before the commencement of this item or until a new determination comes into effect or is varied in accordance with the Remuneration Tribunal Act.

 

Item 31 - Savings-delegations by Director of the Institute

This item gives effects to previous delegations made by the Director under the old law.

 

It provides that a delegation made by the Director under Section 28 of the old law (Delegation by Director) to a member of staff of the Institute, and in force before the commencement of this item, will continue to be in force.