An Act to establish the Australian Organ and Tissue Donation and Transplantation Authority, and for other purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Australian Organ and Tissue Donation and Transplantation Authority Act 2008.
2 Commencement
This Act commences on 1 January 2009.
3 Simplified outline
The following is a simplified outline of this Act:
This Act establishes the Australian Organ and Tissue Donation and Transplantation Authority. The Authority has a number of functions relating to organ or tissue donation and transplantation matters.
The Authority consists of the Chief Executive Officer and the staff of the Authority. The functions of the CEO include:
(a) determining objectives, strategies and policies to be followed by the Authority in the performance of its functions; and
(b) ensuring the proper, efficient and effective performance of the Authority’s functions; and
(c) managing the administration of the Authority.
The Australian Organ and Tissue Donation and Transplantation Advisory Board is also established by this Act. The Advisory Board’s main function is advising the CEO about a number of matters including organ or tissue donation and transplantation matters.
The Act also provides for the CEO to establish expert advisory committees and for the Authority to make grants relating to organ or tissue donation and transplantation matters.
4 Definitions
In this Act:
Advisory Board member means a member of the Advisory Board (and includes the Chair and Deputy Chair).
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
authorised family member has the meaning given by section 5.
Authority means the Australian Organ and Tissue Donation and Transplantation Authority.
Board means the Australian Organ and Tissue Donation and Transplantation Advisory Board.
CEO means the Chief Executive Officer of the Authority.
Chair means the Chair of the Advisory Board.
child has a meaning affected by section 5B.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
de facto partner has the meaning given by the Acts Interpretation Act 1901.
Deputy Chair means the Deputy Chair of the Advisory Board.
DonateLife Agency has the meaning given by section 5F.
expert advisory committee means a committee established under section 44.
expert advisory committee member means a member of an expert advisory committee, and includes the Chair of an expert advisory committee.
improving includes maintaining.
organ means an organ of a human body (within the ordinary meaning of that expression).
organ or tissue donation and transplantation means:
(a) the removal of an organ and/or tissue from the body of an individual (whether living or deceased) for the purpose of its transplantation to the body of a living individual (other than the individual from which it was removed); or
(b) the transplantation to the body of a living individual of an organ and/or tissue removed from the body of another individual (whether living or deceased);
or both.
organ or tissue donation and transplantation matter means a matter relating to organ or tissue donation and transplantation, and includes the following matters:
(a) the provision of an organ or tissue donation and transplantation service;
(b) the identification of potential organ or tissue donors;
(c) the obtaining of organs or tissue for transplantation;
(d) waiting lists for potential organ or tissue recipients;
(e) the allocation of organs or tissue for transplantation;
(f) support services for organ or tissue donors and their partners and families;
(g) the skills and knowledge of people involved in providing organ or tissue donation and transplantation services;
(ga) commemorative activities relating to organ or tissue donors or recipients;
(h) public knowledge about, and confidence in, organ or tissue donation and transplantation services.
organ or tissue donation and transplantation service means:
(a) a service relating to organ or tissue donation and transplantation; or
(b) a service that is ancillary or incidental to a service covered by paragraph (a).
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
parent has a meaning affected by section 5B.
partner has the meaning given by section 5A.
sibling has a meaning affected by section 5D.
stepchild has a meaning affected by section 5E.
tissue means:
(a) a part of a human body (other than an organ); or
(b) a part of an organ; or
(c) a substance extracted from, or from a part of:
(i) an organ; or
(ii) any other part of a human body;
but does not include a substance or thing specified in the regulations.
transplantation, in relation to an organ or tissue, includes:
(a) the transplantation of a part of the organ or tissue; and
(b) the transplantation of a substance obtained from the organ or tissue.
5 Meaning of authorised family member
In this Act, authorised family member of an organ or tissue donor or recipient who has died means any of the following persons:
(a) the partner of the organ or tissue donor or recipient;
(b) a parent or legal guardian of the organ or tissue donor or recipient;
(c) a child of the organ or tissue donor or recipient;
(d) a sibling of the organ or tissue donor or recipient;
(e) a grandparent of the organ or tissue donor or recipient;
(f) a grandchild of the organ or tissue donor or recipient;
(g) if the organ or tissue donor or recipient has traditional Aboriginal or Torres Strait Islander kinship ties—a person who is related to the organ or tissue donor or recipient under Aboriginal or Torres Strait Islander kinship rules;
(h) if the organ or tissue donor or recipient is a member of a community that accepts relationships other than those referred to in paragraphs (a) to (g) as kinship ties—a person who is accepted by the community to be related to the organ or tissue donor or recipient;
(i) a person who, under the regulations, is taken to be an authorised family member of the organ or tissue donor or recipient.
5A Meaning of partner
(1) In this Act, partner of a person means:
(a) the person’s spouse; or
(b) the person’s de facto partner.
(2) However, if more than one person would qualify as a partner of a person (the first person) under subsection (1), then only the last person to so qualify is the partner of the first person for the purposes of this Act.
5B Meaning of child
(1) In this Act, child of a person includes:
(a) an adopted child, stepchild, exnuptial child or foster child of the person; and
(b) someone who is a child of the person within the meaning of the Family Law Act 1975.
Tracing family relationships
(2) For the purposes of this Act, if one person is the child of another person because of subsection (1), relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
5C Meaning of parent
Without limiting who is a parent of a person for the purposes of this Act, a person (the first person) is a parent of another person if the other person is the first person’s child.
5D Meaning of sibling
In this Act, sibling of a person includes a half‑brother, half‑sister, adoptive brother, adoptive sister, step‑brother, step‑sister, foster‑brother and foster‑sister of the person.
5E Meaning of stepchild
In this Act, without limiting who is a stepchild of a person, a person (the first person) is a stepchild of another person (the second person) if the first person would be the second person’s stepchild except that the second person is not legally married to the second person’s de facto partner.
5F Meaning of DonateLife Agency
(1) The Minister may, by legislative instrument, declare that a specified agency is a DonateLife Agency for the purposes of this Act.
(2) The Minister must not declare under subsection (1) that an agency is a DonateLife Agency unless the Minister is satisfied that the agency has a role or function in relation to one or more organ or tissue donation and transplantation matters.
Consultation
(3) Before the Minister makes a declaration under subsection (1) in relation to:
(a) a Department of a State; or
(b) a part of a Department of a State; or
(c) an authority of a State; or
(d) a part of an authority of a State;
the Minister must consult the Minister of the State who is responsible, or principally responsible, for the administration of matters relating to health in the State.
(4) Before the Minister makes a declaration under subsection (1) in relation to:
(a) a Department of the Northern Territory; or
(b) a part of a Department of the Northern Territory; or
(c) an authority of the Northern Territory; or
(d) a part of an authority of the Northern Territory;
the Minister must consult the Minister of the Northern Territory who is responsible, or principally responsible, for the administration of matters relating to health in the Northern Territory.
(5) Before the Minister makes a declaration under subsection (1) in relation to:
(a) a Department of the Australian Capital Territory; or
(b) a part of a Department of the Australian Capital Territory; or
(c) an authority of the Australian Capital Territory; or
(d) a part of an authority of the Australian Capital Territory;
the Minister must consult the Minister of the Australian Capital Territory who is responsible, or principally responsible, for the administration of matters relating to health in the Australian Capital Territory.
Agency
(6) For the purposes of this section, agency means:
(a) a Department of a State or Territory; or
(b) a part of a Department of a State or Territory; or
(c) an authority of a State or Territory; or
(d) a part of an authority of a State or Territory; or
(e) a body corporate.
6 Crown to be bound
This Act binds the Crown in each of its capacities.
7 Extension to external Territories
This Act extends to every external Territory.
Part 2—Australian Organ and Tissue Donation and Transplantation Authority
8 Establishment of the Australian Organ and Tissue Donation and Transplantation Authority
(1) The Australian Organ and Tissue Donation and Transplantation Authority is established by this section.
Note: In this Act, Authority means the Australian Organ and Tissue Donation and Transplantation Authority—see section 4.
(2) The Authority may also be known by a name specified in the regulations.
(3) The Authority consists of:
(aa) the CEO; and
(b) the staff of the Authority.
Note: The Authority does not have a legal identity separate from the Commonwealth.
(4) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the following combination of bodies is a listed entity:
(i) the Authority;
(ii) the Advisory Board; and
(aa) the listed entity is to be known as the Australian Organ and Tissue Donation and Transplantation Authority; and
(b) the CEO is the accountable authority of the Authority; and
(c) the following persons are officials of the Authority:
(i) the CEO;
(ii) the Advisory Board members;
(iii) the staff of the Authority;
(iv) consultants engaged under section 26;
(v) persons whose services are made available to the Authority under section 27;
(vi) an expert advisory committee member; and
(d) the purposes of the Authority include:
(i) the functions of the Authority referred to in section 11; and
(ii) the functions of the CEO referred to in section 14B; and
(iii) the functions of the Advisory Board referred to in section 29; and
(iv) the functions of an expert advisory committee referred to in section 45.
11 Functions of the Authority
(1) The functions of the Authority are:
(a) to formulate, in writing, policies and protocols relating to organ or tissue donation and transplantation matters; and
(b) to declare, in writing, standards and codes of practice relating to organ or tissue donation and transplantation matters; and
(c) to support and encourage the implementation of:
(i) policies and protocols formulated under paragraph (a); and
(ii) standards and codes of practice declared under paragraph (b); and
(d) to collect, analyse, interpret and disseminate information relating to organ or tissue donation and transplantation matters; and
(e) to support, encourage, conduct and evaluate training programs that are directed towards improving the skills and knowledge of people involved in organ or tissue donation and transplantation services; and
(f) to support, encourage, conduct and evaluate educational, promotional and community awareness programs that are relevant to organ or tissue donation and transplantation matters; and
(g) to make, on behalf of the Commonwealth, grants of financial assistance in relation to organ or tissue donation and transplantation matters; and
(h) to support, encourage, conduct and evaluate research about organ or tissue donation and transplantation matters; and
(i) to publish (whether on the internet or otherwise) reports and papers relating to organ or tissue donation and transplantation matters; and
(j) to advise the Minister about organ or tissue donation and transplantation matters; and
(k) to consult and co‑operate with other persons, organisations and governments on organ or tissue donation and transplantation matters; and
(l) such other functions as are conferred on the Authority by this Act or any other law; and
(m) such other functions (if any) as are specified in a written instrument given by the Minister to the Authority; and
(n) to do anything incidental to or conducive to the performance of any of the above functions.
Note 1: See also section 57 (compliance with policies, protocols, standards and codes is voluntary).
Note 2: See also section 58 (protection of patient confidentiality).
Note 3: See also sections 54 to 56 (terms and conditions of grants).
Note 4: For variation and revocation of instruments made under paragraph (a), (b) or (m), see subsection 33(3) of the Acts Interpretation Act 1901.
Constitutional limits
(2) The Authority may perform its functions only:
(a) with respect to the granting of financial assistance to a State on such terms and conditions as the Parliament thinks fit; or
(b) with respect to the executive power of the Commonwealth; or
(c) with respect to statistics; or
(d) with respect to, or in, a Territory; or
(e) with respect to, or in, a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or
(f) with respect to trade and commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(g) with respect to the granting of financial assistance to a constitutional corporation for the purposes of carrying out the corporation’s activities; or
(h) with respect to the provision of medical services; or
(i) with respect to a postal, telegraphic, telephonic or other like service; or
(j) with respect to the provision of a service to:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth;
for a purpose of the Commonwealth; or
(k) with respect to the implied power of the Parliament to make laws with respect to nationhood; or
(l) with respect to matters incidental to the execution of any of the legislative powers of the Parliament or the executive power of the Commonwealth.
(2A) A term used in subsection (2) and the Constitution has the same meaning in that subsection as it has in the Constitution.
Legislative instruments
(3) A policy or protocol formulated under paragraph (1)(a) is not a legislative instrument.
(4) A standard or code of practice declared under paragraph (1)(b) is not a legislative instrument.
(5) A declaration made under paragraph (1)(b) is not a legislative instrument.
(6) An instrument made under paragraph (1)(m) is not a legislative instrument.
12 Authority must have regard to certain objectives etc.
In performing the Authority’s functions under this Act, the Authority must have regard to:
(a) the following objectives:
(i) promoting a co‑ordinated and consistent approach to organ or tissue donation and transplantation matters;
(ii) improving access to organ or tissue donation and transplantation services;
(iii) improving the identification of potential organ or tissue donors;
(iv) minimising waiting times for potential organ or tissue recipients;
(v) improving the management of waiting lists for potential organ or tissue recipients;
(vi) improving the management of the allocation of donated organs or tissue;
(vii) improving support services for organ or tissue donors and their partners and families;
(viii) improving the skills and knowledge of people involved in providing organ or tissue donation and transplantation services;
(ix) improving public knowledge about, and public confidence in, organ or tissue donation and transplantation services; and
(b) international best practice; and
(c) safety; and
(d) effectiveness; and
(e) privacy; and
(f) equity; and
(g) transparency; and
(h) such other matters (if any) as the Authority considers relevant.
13 Minister may give directions to the Authority
(1) The Minister may, by legislative instrument, give written directions to the Authority about the performance of the Authority’s functions.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) A direction under subsection (1) must be of a general nature only.
(3) The Authority must comply with a direction under subsection (1).
Part 3—Chief Executive Officer and staff etc.
Division 1—Chief Executive Officer
14A CEO
There is to be a Chief Executive Officer of the Authority.
14B Functions of the CEO
(1) The functions of the CEO are:
(a) to determine objectives, strategies and policies to be followed by the Authority in the performance of its functions; and
(b) to ensure the proper, efficient and effective performance of the Authority’s functions; and
(c) to manage the administration of the Authority; and
(d) such other functions as are conferred on the CEO by this Act or any other law; and
(e) to do anything incidental or conducive to the performance of any of the above functions.
(2) The CEO has power to do all things necessary or convenient to be done for, or in connection with, the performance of the CEO’s functions.
14 Appointment of the CEO
(1) The CEO is to be appointed by the Minister by written instrument.
(2) The CEO holds office on a full‑time basis.
15 Period of appointment for the CEO
The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: The CEO may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
16 Acting appointments
The Minister may appoint a person to act as the CEO:
(a) during a vacancy in the office of CEO (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the CEO:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
Division 3—Terms and conditions for the CEO
17 Remuneration and allowances
(1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed by the regulations.
(2) The CEO is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
18 Leave of absence
(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
19 Resignation
(1) The CEO may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
20 Outside employment
The CEO must not engage in paid employment outside the duties of his or her office without the Minister’s approval.
22 Termination of appointment
(1) The Minister may terminate the appointment of the CEO:
(a) for misbehaviour; or
(b) if the CEO is unable to perform the duties of the CEO’s office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of the CEO if:
(a) the CEO:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the CEO engages, except with the Minister’s approval, in paid work outside the duties of his or her office; or
(d) the CEO fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
23 Other terms and conditions
The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
Division 5—Staff etc.
25 Staff
(1) The staff of the Authority are to be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the CEO and the Authority staff together constitute a Statutory Agency; and
(b) the CEO is the Head of that Statutory Agency.
26 Consultants
(1) The CEO may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to assist in the performance of the Authority’s functions.
(2) The consultants are to be engaged on the terms and conditions that the CEO determines in writing.
27 Persons assisting the Authority
The Authority may also be assisted:
(a) by officers and employees of Agencies (within the meaning of the Public Service Act 1999); or
(b) by officers and employees of authorities of the Commonwealth; or
(c) by officers and employees of a State or Territory; or
(d) by officers and employees of authorities of a State or Territory;
whose services are made available to the Authority in connection with the performance of any of the Authority’s functions.
Part 4—Australian Organ and Tissue Donation and Transplantation Advisory Board
Division 1—Establishment and functions of the Advisory Board
28 Establishment of the Advisory Board
The Australian Organ and Tissue Donation and Transplantation Advisory Board is established by this section.
29 Functions of the Advisory Board
(1) The functions of the Advisory Board are:
(a) to advise the CEO, either on its own initiative or at the request of the CEO, about the following matters:
(i) the objectives, strategies and policies to be followed by the Authority in the performance of its functions;
(ii) the performance of the Authority’s functions;
(iii) organ or tissue donation and transplantation matters; and
(b) to provide strategic advice to the Minister about the performance of the Authority’s functions if requested to do so by the Minister; and
(c) to do anything incidental or conducive to the performance of any of the above functions.
(2) The Advisory Board has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.
Division 2—Members of the Advisory Board
30 Membership
The Advisory Board consists of:
(a) the Chair; and
(b) the Deputy Chair; and
(c) at least 3, but not more than 5, other members.
31 Appointment of Advisory Board members
(1) Subject to this section, the Advisory Board members are to be appointed by the Minister by written instrument, on a part‑time basis.
Note: An Advisory Board member may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
Eligibility for appointment
(2) A person is not eligible for appointment as an Advisory Board member unless the Minister is satisfied that the person has experience in, or knowledge of, at least one of the following fields:
(a) public or health leadership or administration;
(b) clinical expertise in organ or tissue donation and transplantation;
(c) business management;
(d) community leadership and engagement in relation to organ or tissue donation and transplantation matters;
(e) promotion of organ or tissue donation and transplantation matters;
(f) health consumer advocacy;
(g) any other field that the Minister considers appropriate.
Mix of Advisory Board members
(3) In appointing the Advisory Board members, the Minister must ensure, to the extent practicable, that those Advisory Board members are an appropriate mix of persons meeting the requirements of subsection (2).
Consultation
(4) Before the Minister appoints a person as an Advisory Board member (other than the Chair), the Minister must consult:
(a) the Minister of each State who is responsible, or principally responsible, for the administration of matters relating to health in the State; and
(b) the Minister of the Northern Territory who is responsible, or principally responsible, for the administration of matters relating to health in that Territory; and
(c) the Minister of the Australian Capital Territory who is responsible, or principally responsible, for the administration of matters relating to health in that Territory; and
(d) such other persons (if any) as the Minister considers appropriate.
32 Term of appointment
An Advisory Board member holds office for the period specified in the instrument of appointment. The period must not exceed 4 years.
33 Acting appointment
Acting as the Chair
(1) The Minister may, by written instrument, appoint an Advisory Board member to act as the Chair:
(a) during a vacancy in the office of Chair, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chair:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
Acting as an appointed Board member (other than the Chair)
(2) The Minister may, by written instrument, appoint a person to act as an Advisory Board member (other than the Chair):
(a) during a vacancy in the office of an Advisory Board member (other than the Chair), whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when an Advisory Board member (other than the Chair):
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
(3) A person is not eligible for appointment under subsection (2) unless the Minister is satisfied that the person meets the requirements of subsection 31(2).
34 Remuneration
(1) An Advisory Board member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Advisory Board member is to be paid the remuneration that is prescribed by the regulations.
(2) An Advisory Board member is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
35 Leave of absence
(1) The Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines.
(2) The Chair may grant leave of absence to any other Advisory Board member on the terms and conditions that the Chair determines.
(3) The Chair must notify the Minister if the Chair grants an Advisory Board member leave of absence for a period that exceeds 3 months.
36 Other terms and conditions
An Advisory Board member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
37 Resignation
(1) An Advisory Board member may resign the member’s appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
38 Termination of appointment
(1) The Minister may terminate the appointment of an Advisory Board member:
(a) for misbehaviour; or
(b) if the Advisory Board member is unable to perform the duties of that member’s office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of an Advisory Board member if:
(a) the Advisory Board member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with that member’s creditors; or
(iv) makes an assignment of that member’s remuneration for the benefit of that member’s creditors; or
(b) the Advisory Board member is absent, except on leave of absence, from 3 consecutive meetings of the Advisory Board; or
(c) the Advisory Board member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section.
Division 3—Meetings of the Advisory Board
39 Convening meetings
(1) The Advisory Board must hold such meetings as are necessary for the efficient performance of its functions.
(2) The Chair must convene at least 4 meetings of the Advisory Board each financial year.
40 Presiding at meetings
(1) The Chair must preside at all meetings of the Advisory Board at which the Chair is present.
(2) If the Chair is not present at a meeting of the Advisory Board:
(a) the Deputy Chair is to preside; or
(b) if the Deputy Chair is not present—the other Advisory Board members present must appoint one of themselves to preside.
41 Conduct of meetings
The Advisory Board may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.
42 Minutes
The Advisory Board must keep minutes of its meetings.
Part 5—Expert advisory committees
44 Establishment of expert advisory committees
(1) The CEO may, by writing, establish committees, to be known as expert advisory committees.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) An instrument made under subsection (1) is not a legislative instrument.
45 Function of expert advisory committees
An expert advisory committee has the function of advising the CEO about organ or tissue donation and transplantation matters referred to it by the CEO.
46 Appointment of expert advisory committee members etc.
(1) Each expert advisory committee member is to be appointed by the CEO by written instrument.
(2) An expert advisory committee member holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.
Note: An expert advisory committee member may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
(3) An expert advisory committee member holds office on a part‑time basis.
(4) The CEO may terminate the appointment of an expert advisory committee member.
47 Procedures of expert advisory committees
(1) The CEO may give an expert advisory committee written directions about:
(a) the way in which the committee is to carry out its function; and
(b) procedures to be followed in relation to meetings.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) A direction given under subsection (1) is not a legislative instrument.
48 Remuneration and allowances
(1) An expert advisory committee member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.
(2) However, an expert advisory committee member is not entitled to be paid remuneration if he or she holds an office or appointment, or is otherwise employed, on a full‑time basis in the service or employment of:
(a) a State; or
(b) a corporation (a public statutory corporation) that:
(i) is established for a public purpose by a law of a State; and
(ii) is not a tertiary education institution; or
(c) a company limited by guarantee, where the interests and rights of the members in or in relation to the company are beneficially owned by a State; or
(d) a company in which all the stock or shares are beneficially owned by a State or by a public statutory corporation.
Note: A similar rule applies to an expert advisory committee member who has a similar relationship with the Commonwealth or a Territory. See subsection 7(11) of the Remuneration Tribunal Act 1973.
(3) An expert advisory committee member is to be paid the allowances that are prescribed by the regulations.
(4) This section (other than subsection (2)) has effect subject to the Remuneration Tribunal Act 1973.
49 Leave of absence
The CEO may grant leave of absence to an expert advisory committee member on the terms and conditions that the CEO determines.
50 Resignation
(1) An expert advisory committee member may resign his or her appointment by giving the CEO a written resignation.
(2) The resignation takes effect on the day it is received by the CEO or, if a later day is specified in the resignation, on that later day.
51 Disclosure of interests to the CEO
(1) A disclosure by an expert advisory committee member under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the CEO.
(2) Subsection (1) applies in addition to any rules made for the purposes of that section.
(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the expert advisory committee member is taken not to have complied with section 29 of that Act if the member does not comply with subsection (1) of this section.
(4) The CEO may terminate the appointment of an expert advisory committee member if the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013, or the rules made for the purposes of that section.
(5) Subsection (4) does not limit subsection 46(4).
53 Other terms and conditions
An expert advisory committee member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the CEO.
Part 6—Grants
54 Grant to a State
Scope
(1) This section applies to a grant of financial assistance to a State if:
(a) the grant is made by the Authority on behalf of the Commonwealth; and
(b) the grant relates to one or more organ or tissue donation and transplantation matters.
Note: See paragraph 11(1)(g) (grants of financial assistance).
Terms and conditions
(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State.
(3) An agreement under subsection (2) may be entered into by the Authority on behalf of the Commonwealth.
(4) A term or condition set out in an agreement under subsection (2) may require compliance with:
(a) a policy or protocol formulated under paragraph 11(1)(a); or
(b) a standard or code of practice declared under paragraph 11(1)(b).
55 Grant to a Territory
Scope
(1) This section applies to a grant of financial assistance to a Territory if:
(a) the grant is made by the Authority on behalf of the Commonwealth; and
(b) the grant relates to one or more organ or tissue donation and transplantation matters.
Note: See paragraph 11(1)(g) (grants of financial assistance).
Terms and conditions
(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the Territory.
(3) An agreement under subsection (2) may be entered into by the Authority on behalf of the Commonwealth.
(4) A term or condition set out in an agreement under subsection (2) may require compliance with:
(a) a policy or protocol formulated under paragraph 11(1)(a); or
(b) a standard or code of practice declared under paragraph 11(1)(b).
56 Grant to a person other than a State or Territory
Scope
(1) This section applies to a grant of financial assistance to a person other than a State or Territory if:
(a) the grant is made by the Authority on behalf of the Commonwealth; and
(b) the grant relates to one or more organ or tissue donation and transplantation matters.
Note: See paragraph 11(1)(g) (grants of financial assistance).
Terms and conditions
(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.
(2A) If the grant of financial assistance is made to a constitutional corporation, the corporation must comply with the terms and conditions.
(3) An agreement under subsection (2) may be entered into by the Authority on behalf of the Commonwealth.
(4) A term or condition set out in an agreement under subsection (2) may require compliance with:
(a) a policy or protocol formulated under paragraph 11(1)(a); or
(b) a standard or code of practice declared under paragraph 11(1)(b).
Part 7—Miscellaneous
57 Compliance with policies, protocols, standards and codes
(1) Compliance with:
(a) a policy or protocol formulated under paragraph 11(1)(a); or
(b) a standard or code of practice declared under paragraph 11(1)(b);
is voluntary.
(2) Subsection (1) does not prevent compliance with:
(a) a policy or protocol formulated under paragraph 11(1)(a); or
(b) a standard or code of practice declared under paragraph 11(1)(b);
from being a term or condition of:
(c) a grant of financial assistance; or
(d) a contract or other legally enforceable agreement.
(3) Subsection (1) does not prevent:
(a) a policy or protocol formulated under paragraph 11(1)(a); or
(b) a standard or code of practice declared under paragraph 11(1)(b);
from being applied or adopted by or under:
(c) a law of a State or Territory; or
(d) a law of the Commonwealth other than this Act.
58 Protection of patient confidentiality—Authority and CEO
(1A) In the performance of the Authority’s functions, the Authority must not publish or disseminate information that is likely to enable the identification of a particular organ or tissue donor or recipient.
(1) In the performance of the CEO’s functions, the CEO must not publish or disseminate information that is likely to enable the identification of a particular organ or tissue donor or recipient.
(2) Subsections (1A) and (1) do not apply if the publication or dissemination of the information takes place with the consent of:
(a) if the organ or tissue donor or recipient is aged at least 18 years—the organ or tissue donor or recipient; or
(ab) if the organ or tissue donor or recipient is under 16 years of age—a parent or legal guardian of the organ or tissue donor or recipient; or
(ac) if the organ or tissue donor or recipient:
(i) is 16 or 17 years of age; and
(ii) has legal capacity to consent to the publication or dissemination of the information;
the organ or tissue donor or recipient; or
(ad) if the organ or tissue donor or recipient:
(i) is 16 or 17 years of age; and
(ii) does not have legal capacity to consent to the publication or dissemination of the information;
a parent or legal guardian of the organ or tissue donor or recipient; or
(b) if the organ or tissue donor or recipient has died but is survived by one or more authorised family members—any of those authorised family members; or
(c) in any other case—an individual who, under the regulations, is authorised to give consent to the publication or dissemination of the information.
(3) Subsection (2) does not permit the publication or dissemination by the Authority or the CEO of information that reveals that an organ and/or tissue was:
(a) removed from the body of a particular organ or tissue donor; and
(b) transplanted to the body of a particular organ or tissue recipient.
(4) To avoid doubt, if the publication or dissemination by the Authority or the CEO of particular information is permitted by subsection (2), a law of a State or Territory does not prevent the publication or dissemination by the Authority or the CEO of the information.
58A Publication, dissemination or disclosure of patient information—DonateLife Agencies, grant recipients and authorised family members
Scope
(1) This section applies if:
(a) an organ or tissue donation and transplantation has occurred; and
(b) the organ or tissue donor or recipient has died.
Publication, dissemination or disclosure by a DonateLife Agency or grant recipient
(2) Either of the following:
(a) a DonateLife Agency;
(b) a person who is a party to an agreement that:
(i) is in force; and
(ii) provides for the making of one or more grants under paragraph 11(1)(g) to the person;
may publish, disseminate or disclose information that is likely to enable the identification of the deceased organ or tissue donor or the deceased organ or tissue recipient (as the case requires) if:
(c) the publication, dissemination or disclosure is for the purposes of any of the following activities:
(i) an educational activity that is relevant to an organ or tissue donation and transplantation matter;
(ii) a commemorative activity that is an organ or tissue donation and transplantation matter;
(iii) a promotional activity that is relevant to an organ or tissue donation and transplantation matter;
(iv) a community awareness activity that is relevant to an organ or tissue donation and transplantation matter; and
(d) the publication, dissemination or disclosure is made with the consent of an authorised family member of the deceased organ or tissue donor or recipient; and
(e) the publication, dissemination or disclosure is made:
(i) using a service to which paragraph 51(v) of the Constitution applies; or
(ii) using an electronic service (within the meaning of the Online Safety Act 2021); or
(iii) in a Territory; or
(iv) in a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or
(v) by a constitutional corporation.
Publication, dissemination or disclosure by an authorised family member
(3) An authorised family member of the deceased organ or tissue donor or recipient may publish, disseminate or disclose information that is likely to enable the identification of the deceased organ or tissue donor or the deceased organ or tissue recipient (as the case requires) if:
(a) the publication, dissemination or disclosure is for the purposes of any of the following activities of the Authority or a DonateLife Agency:
(i) an educational activity that is relevant to an organ or tissue donation and transplantation matter;
(ii) a commemorative activity that is an organ or tissue donation and transplantation matter;
(iii) a promotional activity that is relevant to an organ or tissue donation and transplantation matter;
(iv) a community awareness activity that is relevant to an organ or tissue donation and transplantation matter; and
(b) the publication, dissemination or disclosure is made:
(i) using a service to which paragraph 51(v) of the Constitution applies; or
(ii) using an electronic service (within the meaning of the Online Safety Act 2021); or
(iii) in a Territory; or
(iv) in a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970).
(4) Subsections (2) and (3) have effect despite anything in a law of a State or Territory.
Secondary publication, dissemination or disclosure
(5) If information has been the subject of a publication, dissemination or disclosure under subsection (2) or (3), a person may publish, disseminate or disclose that information if:
(a) the publication, dissemination or disclosure is for the purposes of reporting on any of the following activities:
(i) an educational activity that is relevant to an organ or tissue donation and transplantation matter;
(ii) a commemorative activity that is an organ or tissue donation and transplantation matter;
(iii) a promotional activity that is relevant to an organ or tissue donation and transplantation matter;
(iv) a community awareness activity that is relevant to an organ or tissue donation and transplantation matter; and
(b) the publication, dissemination or disclosure is made:
(i) using a service to which paragraph 51(v) of the Constitution applies; or
(ii) using an electronic service (within the meaning of the Online Safety Act 2021); or
(iii) in a Territory; or
(iv) in a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970).
(6) Subsection (5) has effect despite anything in a law of a State or Territory.
59 Concurrent operation of State and Territory laws etc.
(1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
(2) This Act does not affect the operation of:
(a) a law of a State or Territory; or
(b) a rule of common law;
to the extent that the law or rule requires the giving of consent to the removal of an organ or tissue from the body of an individual (whether living or deceased).
(3) Subsection (2) does not limit subsection (1).
60 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.