Div 1Establishment of Councils

Division 1—Establishment of Councils 15—Establishment of Councils (1) The Minister may, by notice in the Gazette, establish a Health Advisory Council (a HAC) to undertake an advocacy role on behalf of the community, to provide advice, and to perform other functions, as determined under this Act, in relation to any of the following: (a) the Minister; (b) the Chief Executive; (c) an incorporated hospital; (ca) an incorporated health service; (d) SAAS; (e) any other body involved in the delivery of health services in connection with this Act. (2) Without limiting subsection (1), the Minister may establish and maintain a HAC, constituted by persons who have experience in providing ambulance services as volunteers, with functions that include to provide advice to SAAS in the performance of its functions. (3) The notice published under subsection (1) may— (a) designate the entity or entities in relation to which the HAC is established; and (b) make provision with respect to the functions of the HAC; and (c) declare whether the HAC is to be an incorporated or unincorporated body and assign a name to the HAC (which must, if the HAC is to be incorporated, end with the abbreviation "Inc"); and (d) make provision with respect to the powers of the HAC; and (e) make such other provision as the Minister thinks fit (including by relating the functions of the HAC to a designated area of the State). (4) The Minister may, by subsequent notice in the Gazette— (a) vary a notice under this section; (b) amalgamate 2 or more HACs; (c) dissolve a HAC. (5) However, the Minister— (a) must consult with the members of the relevant HAC or HACs in the manner prescribed by the regulations before acting under subsection (4); and (b) must not act under subsection (4)(b) or (c) unless— (i) the Minister is satisfied that there has been a reasonable level of consultation within the community; and (ii) the Minister is satisfied that it is appropriate to do so on a ground prescribed by the regulations. (6) If 2 or more HACs are amalgamated under subsection (4)(b), the Minister may— (a) exercise any power under a preceding subsection in relation to the HAC established by the amalgamation (including by declaring whether the HAC is to be an incorporated or unincorporated body); and (b) dissolve the HACs that were the separate entities before the amalgamation. (7) If 2 or more HACs are amalgamated under subsection (4)(b), the assets, rights and liabilities of the HACs that were the separate entities before the amalgamation vest in or attach to the HAC formed by the amalgamation by operation of this subsection (unless a contrary provision is relevant under subsection (8)). (8) A reference in a testamentary disposition or other instrument to a HAC that is a party to an amalgamation under subsection (4)(b) will be taken to be (subject to any provision of the testamentary disposition or other instrument to the contrary) a reference to the HAC formed by the amalgamation. (9) If a HAC is dissolved under subsection (4)(c), the Minister may, as the Minister thinks necessary or appropriate, exercise a power under section 20 (subject to complying with the requirements of that section). (10) The Minister may, by notice in the Gazette, make other provisions that in the opinion of the Minister are necessary or expedient in connection with taking action under subsection (4). (11) To avoid doubt, the Minister may establish more than 1 HAC in relation to a particular entity under subsection (1). 16—Status (1) If a HAC is to be an incorporated body by virtue of a declaration of the Minister— (a) the HAC is, by force of this section, a body corporate with perpetual succession and a common seal; and (b) subject to the provisions of this Act and its constitution, the HAC— (i) is capable of holding, acquiring, dealing with, and disposing of, real and personal property (including the power to enter into leases); and (ii) is capable of acquiring or incurring other assets, rights or liabilities; and (iii) is capable of entering into contracts; and (iv) is capable of suing and being sued; and (v) is capable of administering any property on trust or accepting gifts (and, if any gift is affected by a trust, is empowered to carry out the terms of the trust); and (vi) has the rights, powers, authorities, functions, duties and obligations prescribed by or under this Act or its constitution. (2) If a HAC is not to be a body corporate by virtue of a declaration of the Minister, the HAC has the rights, powers, authorities, functions, duties and obligations prescribed by or under this Act or its rules. (3) A HAC is an instrumentality of the Crown. (4) Subject to subsection (5), a HAC holds its property on behalf of the Crown. (5) Subsection (4) does not apply to the extent that a HAC holds any property on trust. (6) Without limiting subsection (5), in the event of an inconsistency between the operation or effect of a provision under this Part and the duties or responsibilities of a HAC as a trustee, the provisions of this Part will not apply to the extent of the inconsistency. (7) Subject to any provision made in its constitution or rules, a HAC may exercise its powers within or outside the State. 17—Constitution and rules (1) A HAC that is incorporated under this Act will have a constitution determined by the Minister. (2) A constitution— (a) must address the appointment of persons as the members of the governing body of the HAC (including by determining the number of members) and, in respect of those members— (i) the method by which they may be appointed, and their terms of office; and (ii) the conditions of appointment, or a method by which those conditions will be determined; and (b) may provide for the appointment of deputies of members of the governing body of the HAC; and (c) must specify the functions of the HAC and may, in doing so, provide for functions of the HAC that are in addition to those specified under Division 2, or limit or regulate the functions or powers of the HAC under this Act; and (d) may make any other provision that, in the opinion of the Minister, is necessary or expedient in connection with the functions, powers or activities of the HAC. (3) A HAC that is not incorporated under this Act will have rules determined by the Minister. (4) A set of rules— (a) must address the appointment of persons as members of the HAC (including by determining the number of members) and, in respect of those members— (i) the method by which they may be appointed, and their terms of office; and (ii) the conditions of appointment, or a method by which those conditions will be determined; and (b) may provide for the appointment of deputies of members of the HAC; and (c) must specify the functions of the HAC and may, in doing so, provide for functions of the HAC that are in addition to those specified under Division 2, or limit or regulate the functions or powers of the HAC under this Act; and (d) may make any other provision that, in the opinion of the Minister, is necessary or expedient in relation to the functions, powers or activities of the HAC. (5) If a HAC is established in relation to an incorporated hospital established to provide services within the country areas of the State, the constitution or rules of the HAC (as the case may be) must provide that a majority of members of the governing body of the HAC (in the case of an incorporated HAC) or a majority of members of the HAC (in the case of a HAC that is not incorporated) are persons who are selected or appointed on the basis of being members of the local community. (6) The Minister may publish a constitution or set of rules in such manner as the Minister thinks fit. (7) The Minister may, as the Minister thinks fit, vary a constitution or set of rules from time to time. (8) For the purposes of facilitating the operation of this section, the Minister must develop a model constitution and a model set of rules (and may then vary or replace any such model from time to time). (9) The Minister must, in varying or replacing a model, undertake the consultation required by the regulations. (10) To avoid doubt, the Minister may depart from a model in a particular case. Division 2—Functions and powers 18—Functions (1) The functions of a HAC may include 1 or more of the following: (a) to act as an advocate to promote the interests of the community, or a section of the community; (b) to provide advice about any relevant aspect of the provision of health services from the perspective of consumers of those services, any carers or volunteers or the community more generally; (c) to provide advice about relevant health issues, goals, priorities, plans, and other strategic initiatives; (d) to provide advice or assistance in undertaking the development or implementation of systems or mechanisms designed to support the delivery of health services or programs; (e) to provide information to, and to consult broadly with, the consumers of any relevant services, any relevant carers or volunteers, and the community more generally; (f) to encourage community participation in programs associated with supporting the provision of health services, and to promote the importance of carers and volunteers in assisting in achieving successful outcomes; (g) to consult with other bodies that are interested in the provision of health services within the community; (h) to provide advice to the Minister about any matter referred to it by the Minister or the Chief Executive; (ha) to provide advice to the governing board for an incorporated hospital about any matter referred to it by the board; (hb) to provide advice to the governing board for an incorporated health service about any matter referred to it by the board; (i) to participate in the consultation or assessment processes associated with the selection of senior staff of a relevant entity; (j) in the case of a HAC that is incorporated— (i) to act as a trustee or to assume other fiduciary functions or duties; (ii) to participate in budget discussions and financial management or development processes; (iii) to undertake fund‑raising activities; (k) in the case of a HAC that is not incorporated— (i) to provide advice in relation to the management of resources available for relevant health services; (ii) to provide assistance with fund‑raising activities in accordance with its rules; (l) such other functions— (i) assigned to the HAC under this or any other Act; or (ii) assigned to the HAC by the Minister; or (iii) adopted by the HAC with the approval of the Minister. (2) Subject to this Act, a HAC must, in the performance of its functions, take into account the strategic objectives (including any health care plan or plans) that have been set or adopted within the Government's health portfolios. (3) A HAC that is incorporated under this Act must, with respect to an entity in relation to which it is established— (a) support and foster the activities and objects of the entity; and (b) subject to this Act, hold its assets for the benefit, purposes and use of the entity on terms or conditions determined or approved by the Minister. 19—Specific provisions in relation to powers (1) Subject to this Act, a HAC has the power to do anything necessary, expedient or incidental to performing its functions. (2) Without limiting subsection (1), a HAC that is incorporated under this Act may establish any fund (including a gift fund) or account. (3) A HAC must not do any of the following without the approval of the Minister: (a) acquire or dispose of real property, or an interest in real property; (b) borrow money or grant a mortgage or create any other form of charge over its property; (c) grant a lease over any real property; (d) enter into any form of guarantee or grant any indemnity; (e) engage a person under a contract for the provision of services; (f) anything else identified under the constitution or rules of the HAC as being within the operation of this subsection. (4) The Minister may, in granting an approval under subsection (3), impose such conditions as the Minister thinks fit. (5) Subsection (3) does not apply in any circumstances excluded from the operation of that subsection— (b) by the constitution or rules of the HAC. (6) A HAC does not have the power to employ any person. Division 3—Related matters 20—Specific provisions in relation to property (1) Subject to this section, the Minister may, by notice in the Gazette— (a) transfer the assets, rights and liabilities of a HAC (either as a whole or in separate parcels specified in the notice)— (ii) to another HAC; or (iiia) to an incorporated health service; or (iv) to SAAS; or (v) to the Crown, or to another agent or instrumentality of the Crown; or (vi) with the agreement of the person or body—to a person or body that is not an agent or instrumentality of the Crown; and (b) make other provisions in relation to the property of the HAC that in the opinion of the Minister are necessary or expedient in the circumstances. (2) The Minister may, by notice in the Gazette, transfer to and vest in a HAC any assets, rights or liabilities of another entity. (3) The Minister— (a) must not act under subsection (1) to transfer any assets or rights of a HAC unless the Minister is acting at the request of the HAC, or the Minister has taken reasonable steps to consult with the HAC; and (b) must not act under subsection (2) unless the Minister is acting at the request of the other entity. (4) Subsection (1) does not apply to any property that a HAC holds on trust to the extent that a transfer under that subsection would be inconsistent with the terms or conditions of the trust. (5) In addition, if the Minister is proposing to transfer any real property of a HAC that has been used for the purposes of an incorporated hospital (other than at the request of the HAC) and the Minister has not obtained the concurrence of the HAC under subsection (3)(a)— (a) the matter must be referred to an independent person for mediation in accordance with guidelines established by the Minister for the purposes of this provision (with the Minister being represented in those proceedings by a person nominated by the Minister); and (b) if the concurrence of the HAC is not obtained through mediation under paragraph (a), the Minister may only proceed to make the transfer under subsection (1) if— (i) the transfer is to another HAC; and (ii) the Minister has given public notice of the proposed transfer by notice published in the Gazette at least 2 months before making the transfer. (6) A notice published in the Gazette under subsection (5)(b)(ii) must set out the reasons for the Minister's decision to proceed. 21—Accounts and audit (1) A HAC must cause proper accounts to be kept of its financial affairs and financial statements to be prepared in respect of each financial year (unless the HAC did not deal with any money or property or otherwise undertake any financial activity in the financial year). (2) The accounts and financial statements required under subsection (1) must comply with any requirements issued by the Minister. (3) The accounts and financial statements of a HAC incorporated under this Act, other than a prescribed HAC, must be audited at least once in every year by an auditor approved by the Auditor‑General. (4) The accounts and financial statements of a prescribed HAC incorporated under this Act must be audited at least once in every year by the Auditor‑General. 22—Annual report (1) A HAC must, within 3 months after the end of each financial year, deliver to the Minister a report on the operations of the HAC during that financial year. (2) The report must incorporate the audited accounts and financial statements of the HAC for the financial year (if relevant). (3) The Minister must, within 12 sitting days after the receipt of a report under this section, cause a copy of the report to be laid before both Houses of Parliament. (4) This section only applies to a HAC that is not incorporated under this Act if the rules of the HAC declare that this section will apply to the HAC. 23—Use of facilities A HAC may, with the approval of the responsible Minister or, if relevant, a responsible public sector instrumentality, make use of the staff, services or facilities of an administrative unit or another public sector instrumentality. 24—Delegations (1) Subject to subsection (2), a HAC may delegate a function or power conferred on the HAC— (a) may not be made if contrary to any limitation or exclusion imposed by the Minister by notice in writing furnished to the HAC; and (b) subject to paragraph (a)— (i) may be made subject to conditions or limitations specified in the instrument of delegation; and (ii) if the instrument of delegation so provides, may be further delegated by the delegate; and (iii) is revocable at will and does not prevent the HAC from acting in a matter. 25—Access to information (1) A HAC is entitled to request such information as it considers to be necessary or expedient to assist it in the performance of its functions. (2) Subsection (1) does not extend to information excluded from the operation of that subsection— (b) by the Chief Executive. (3) The Chief Executive may impose conditions that a HAC must observe in relation to the receipt, use or disclosure of information provided under subsection (1). 26—Common seal Where an apparently genuine document purports to bear the common seal of a HAC incorporated under this Act, it will be presumed, in the absence of proof to the contrary, that the common seal of that HAC was duly fixed to that document. 27—Schedule 2 has effect