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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN ORGAN AND TISSUE DONATION AND
TRANSPLANTATION AUTHORITY AMENDMENT (GOVERNANCE AND
OTHER MEASURES) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Regional Health, Regional
Communications and Local Government, the Hon Mark Coulton MP)
AUSTRALIAN ORGAN AND TISSUE DONATION AND
TRANSPLANTATION AUTHORITY AMENDMENT (GOVERNANCE AND
OTHER MEASURES) BILL 2021
OUTLINE
Purpose of the Bill
The purpose of the Australian Organ and Tissue Donation and Transplantation
Authority Amendment (Governance and Other Measures) Bill 2021 (the Bill) is to
transition the role of "accountable authority" under the Public Governance,
Performance and Accountability Act 2013 (PGPA ACT) of the Australian Organ and
Tissue Donation and Transplantation Authority (OTA), from the Australian Organ
and Tissue Donation and Transplantation Authority Board (the Board) to the Chief
Executive Officer (CEO).
Objective of the Bill
The Bill amends the Australian Organ and Tissue Donation and Transplantation
Authority Act 2008 (the OTA Act) to abolish the existing Board and establish an
Advisory Board.
Overview of the Bill
The Bill establishes an Advisory Board. The CEO will be the accountable authority of
the organisation under the PGPA Act and will be directly accountable to the
Commonwealth Minister for Health. The new Advisory Board will provide advice,
expertise and mentorship to the CEO on organ and tissue donation and transplantation
matters. The Advisory Board will have skills-based membership, harnessing
expertise, experience and knowledge from a broad range of areas from within the
organ and tissue sector including:
public administration, business or management;
hospital or health organisation leadership;
health consumer of donation or transplantation services;
promotion of donation and transplantation;
community leadership and engagement;
clinical expertise in organ and tissue donation and transplantation; and
any other appropriate field of expertise as determined by the Minister.
The Advisory Board's primary function will be to provide the CEO with advice in
relation to organ and tissue donation and transplantation matters, and will comprise of
one Chair, a Deputy Chair and between three and five members. The Bill also sets out
a revised appointment process for Board members.
Financial Impact Statement
The Commonwealth Government will meet any additional financial impact of this Bill
within existing funding arrangements.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
THE AUSTRALIAN ORGAN AND TISSUE DONATION AND
TRANSPLANTATION AUTHORITY AMENDMENT (GOVERNANCE) ACT
2021
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
This Bill will amend the Australian Organ and Tissue Donation and Transplantation
Authority Act 2008 (OTA Act) to transition the role of the Accountable Authority
under the Public Governance, Performance and Accountability Act 2013 (PGPA Act)
from the Board to the Chief Executive Officer (CEO). This change follows
recommendations made by Dr Mal Washer, Chair of the Organ and Tissue Authority
Board (the Board), to Minister Coulton to enable the Board to have a more strategic
and advisory focus. This amendment will repeal the existing Board and create a new
Advisory Board.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
The Hon Mark Coulton MP Minister for Regional Health, Regional
Communications and Local Government
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AUSTRALIAN ORGAN AND TISSUE DONATION AND
TRANSPLANTATION AMENDMENT (GOVERNANCE AND OTHER
MEASURES) ACT 2021
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Australian Organ
and Tissue Donation and Transplantation Authority (Governance and Other
Measures) Act 2021 (the Act).
Clause 2 - Commencement
The table in this clause sets out the commencement dates for when the provisions of
the Act will commence as follows:
Sections 1 to 3 of the Act will commence on the day the Act receives the
Royal Assent.
Schedules 1 and 2 of the Act will be enacted on a day to be fixed by
proclamation, or 6 months after the Act receives the Royal Assent.
Clause 3 - Schedule(s)
This clause provides that each piece of legislation that is specified in a Schedule to the
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 - AMENDMENTS
The Schedule amends the Australian Organ and Tissue Donation and Transplantation
ACT 2009 (the OTA Act) to provide for consequential and other amendments in view
of the inclusion of provisions relating to the transition of the role of Accountable
Authority under the Public Governance, Performance and Accountability Act 2013
(PGPA Act) to the Chief Executive Officer (CEO) and the establishment of the
Australian Organ and Tissue Donation and Transplantation Authority Advisory Board
(the Advisory Board).
Item 1 - Section 3
This item repeals the Simplified Outline of the OTA Act and replaces with a
simplified outline which includes the Authority consisting of the CEO and staff of the
Authority, and removes reference relating to, the Australian Organ and Tissue
Donation and Transplantation Authority Board (the Board).
This item also establishes the Advisory Board. Through the establishment of the
Advisory Board, expertise and support will be provided to the CEO through advice on
a number of matters including organ or tissue donation and transplantation matters.
Item 2 - Section 4
This item provides the definition of an Advisory Board member.
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Item 3 - Section 4
This item repeals the definition of an appointed member. This relates to the repealed
Board.
Item 4 - Section 4
This item amends the title of the previous Board to be the new Advisory Board.
Item 5 - Section 4
This item repeals the definition of a Board member. This relates to the repealed
Board.
Item 6 - Section 4
This item amends the definition of the term "Chair" to mean Chair of the new
Advisory Board.
Item 7 - Section 4
This item repeals the definition of the COAG Health Council as this body no longer
exists and the new appointment process for the Chair and members of the Advisory
Board does not involve the COAG Health Council.
Item 8 - Section 4
This item amends the definition of the term "Deputy Chair" to mean Deputy Chair of
the new Advisory Board.
Item 9 - Section 4
This items amends the terminology used in the definition of organ or tissue donation
and transplantation to replaces the term "dead" with "deceased" to bring the
terminology in line with standard and accepted nomenclature used in the organ and
tissue donation and transplantation sector.
Item 10 - Paragraph 8(3)(a)
This item repeals reference to the Board being considered as part of the Authority.
Item 11 - Paragraph 8(4)(a)
This item repeals the paragraph relating to what is considered to be the listed entity
under the PGPA Act and substitutes the listed entity to include the Authority (being
the CEO and staff of the Authority) and the Advisory Board.
Item 12 - Paragraph 8(4)(b)
This item replaces "Board" with "CEO". This item establishes the CEO as the
Accountable Authority of the Authority under the PGPA Act.
Item 13 - Subparagraphs 8(4)(c)(i) and (ii)
This item replaces the listed officials of the Authority and the appointed Board
members with the CEO and the Advisory Board members.
Item 14 - Subparagraphs 8(4)(d)(ii) and (iii)
This item replaces the purpose of the Authority and the functions of the Board with
the functions of the CEO and the Advisory Board.
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Item 15 - Subsection 11(2)
This item provides for the constitutional limits under which the Authority may
perform its functions.
Item 16 - Part 2A
This item repeals the Board and its functions.
Item 17 - Part 4 (heading)
This item renumbers the Part as a result of the repeal of Part 2A.
Item 18 - Section 14B
This item repeals the previous functions of the CEO and substitutes the new functions
of the CEO as the accountable authority of the Authority under the PGPA Act.
Through these functions, the CEO will be responsible for determining the objectives,
strategies and policies of the Authority, ensuring the proper, efficient and effective
performance of the Authority, and managing the administration of the Authority.
Item 19 - Subsection 14(1A)
This item repeals the requirement for the Minister to consult the Chair of the Board
about the appointment of the CEO. As the accountable authority of the Authority, the
CEO will be appointed by the responsible Commonwealth Minister. There is no
legislated requirement for the responsible Commonwealth Minister to consult when
appointing the CEO under the amended legislation.
Item 20 - Section 15
This item revises the appointment term of the CEO from up to 4 years to up to 5 years
to allow for greater continuity and time in the role.
Item 21 - Subsection 22(1)
This item repeals and replaces the subsection relating to the termination of the CEO to
modernise nomenclature.
Item 22 - Paragraph 22(2)(c)
This item modernises terminology in relation to employment.
Item 23 - Subsections 26(1) and (2)
This item repeals reference to the Board and replaces with CEO to allow for the
engagement of consultants.
Item 24 - Part 4
This item inserts a new Part into the Act that establishes the Advisory Board and sets
out the functions and requirements for the Advisory Board.
Division 1 of Part 4 sets out the establishment and functions of the Advisory Board.
Section 28 establishes the Advisory Board.
Section 29 establishes the functions to be undertaken by the Advisory Board in its role
to provide advice to the CEO.
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The Advisory Board will have a key role in advising the CEO on:
the objectives, strategies and policies of the OTA;
the performance of the OTA; and
organ or tissue donation and transplantation matters.
This section allows the Advisory Board to provide advice to the Minister about the
performance of the Authority, if requested to do so by the Minister.
Division 2 of Part 4 sets out provisions relating to Members of the Advisory Board.
Section 30 sets out the membership of the Board to consist of the Chair, the Deputy
Chair and at least 3, but not more than 5, other members.
Section 31 sets out matters relating to appointments to the Advisory Board:
appointment process, eligibility for appointment, mix of Advisory Board members,
and consultation on appointments.
Subsection 31(1) sets out that Advisory Board members are to be formally appointed
by the Commonwealth Minister, on a part-time basis, by written instrument.
Subsection 31(2) sets out the eligibility requirements for Advisory Board members.
For a person to be eligible as an Advisory Board member, the Minister must be
satisfied that a person has experience, knowledge or expertise in relevant fields as
detailed in the subsection.
Subsection 31(3) requires that an appropriate mix of expertise and
knowledge/experience is represents among the Advisory Board members. The
membership of the Advisory Board, with its balance of expertise, is intended to
facilitate the Board in its advisory capacity, while representing the various interests of
the organ and tissue sector.
The establishment of the Advisory Board does not preclude the OTA from retaining
its other expert advisory committees, allowing the CEO to receive advice from a
range of appropriate expert sources to assist him or her in the effective performance of
his or her functions.
Subsection 31(4) sets out the consultation requirements before the Minister appoints a
person as an Advisory Board member, other than the Chair. The Minister must consult
with all State and Territory Health Ministers before making appointments to the
Advisory Board. The Minister may also consult with any other persons they consider
appropriate on the appointment of members to the Advisory Board. These
consultation provisions do not apply to the Chair.
Subsection 32 provides that the term of appointment for all board members will be set
out in the written instrument of appointment and must not exceed 4 years.
Subsection 33 provides for the Commonwealth Minister to appoint an acting Chair or
an acting Board member to the Advisory Board if there is a vacancy, or during a
period when the Chair or Board member is absent from the Board or from Australia,
or is unable to perform the duties of the position for any reason.
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Subsection 33(3) also provides that the Commonwealth Minister may only appoint a
person to act as an Advisory Board member if the Minister is satisfied that the person
is qualified under Clause 31(2).
A note in subsection 33 refers to 33AB and 33A of the Acts Interpretation Act 1901
for rules that apply to acting appointments.
Section 34 details remuneration of Advisory Board members. Subsection 34(1) sets
out that Advisory Board members are to be paid the remuneration that is determined
by the Remuneration Tribunal, or if no determination is in operation, the remuneration
that is prescribed by the regulations.
Subsection 34(2) sets out that an Advisory Board member is entitled to be paid the
allowances that are prescribed by the regulations.
Subsection 34(3) sets out that section 32 has effect subject to the Remuneration
Tribunal Act 1973.
Section 35 sets out provisions relating to a Leave of absence for the Chair and other
Advisory Board members.
Subsection 35(1) provides that the Commonwealth Minister may grant leave of
absence to the Chair of the Advisory Board, on terms and conditions that the Minister
determines.
Subsection 35(2) provides that the Chair of the Advisory Board may grant leave of
absence to another Board member, on terms and conditions that the Chair determines.
Subsection 35(3) provides that the Chair must notify the Commonwealth Minister if
the Chair grants an Advisory Board member leave of absence for a period exceeding 3
months.
Section 36 provides that an Advisory Board member holds office on any terms and
conditions, not covered by this Act, that are determined by the Commonwealth
Minister.
Section 37 sets out provisions around resignation of Advisory Board members.
Subsection 37(1) provides that an Advisory Board member may resign by giving the
Commonwealth Minister a written resignation. Subsection 37(2) specifies that the
resignation is effective from the day it is received by the Minister or on a specified
later date. These provisions also apply to the Chair.
Section 38 sets out provisions for termination of appointment of Advisory Board
members. Subsection 38(1) provides that the Minister may terminate the appointment
of a member of the Advisory Board for misbehaviour or if the Advisory Board
member is unable to perform the duties of their office because of physical or mental
incapacity.
Subsection 38(2) sets out circumstances in which the Minister may terminate an
Advisory Board member's appointment. These include becoming bankrupt;
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compounding with his or her creditors; assigning his or her remuneration for the
benefit of his or her creditors; being absent from duty (except on leave of absence) for
3 consecutive Board meetings; or failing to comply with Section 29 of the Public
Governance, Performance and Accountability Act 2013.
Division 3 of Part 4 sets out provisions relating to meetings of the Advisory Board.
Section 39 provides that the Advisory Board must hold such meetings as are
necessary for the efficient performance of its functions, and that the Chair must
convene at least 4 meetings each financial year.
Section 40 provides that the Chair must preside at all meetings at which he or she is
present. Subsection 40(2) sets out presiding arrangements when the Chair is not
present, namely that that the Deputy Chair is to preside should the Chair not be
present at an Advisory Board meeting, or if the Deputy Chair is not present the other
Advisory Board members present must appoint one of themselves to preside.
Section 41 provides that the Advisory Board may regulate proceedings at its meetings
as it considers appropriate.
Section 42 provides that the Advisory Board must keep minutes of its meetings.
Item 25 - Subsection 44(1)
This item replaces the term "Board" with "CEO" to allow for the CEO in the role of
accountable authority to establish expert advisory committees.
Item 26 - Section 45
This item replaces the term "Board" with "CEO" to allow for any expert advisory
committees to advise the CEO, rather than the Board, about organ or tissue donation
and transplantation matters referred to them by the CEO.
Item 27 - Subsections 46(1) and (4) and 47(1)
This item replaces the term "Board" with "CEO" to allow for expert advisory
committees members to be appointed and terminated by the CEO, rather than the
Board. Subsection 47(1) allows the CEO to give an expert advisory committee written
directions about the way in which the committee is to carry out its function and the
procedures to be followed in relation to meetings.
Item 28 - Section 49
This item replaces the term "Board" with "CEO" to allow the CEO, rather than the
Board, to grant a leave of absence to an expert advisory committee member on the
terms and conditions that the CEO determines.
Item 29 - Subsections 50(1) and (2)
This item replaces the term "Board" with "CEO" to allow an expert advisory
committee member to resign his or her appointment by giving the CEO, rather than
the Board, their written resignation.
Item 30 - Section 51 (heading)
This item replaces the term "Board" with "CEO" in the heading.
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Item 31 - Subsections 51(1) and (4)
This item replaces the term "Board" with "CEO" to allow an expert advisory
committee members to disclose interests (under section 29 of the Public Governance,
Performance and Accountability Act 2013) to the CEO, rather than the Board.
Item 32 - Section 53
This item replaces the term "Board" with "CEO" to stipulates that 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, rather than the
Board.
Item 33 - Paragraph 54(1)(a)
This item replaces the term "Board" with "Authority" to provide that a grant of
financial assistance to a State can be made by the CEO, rather than the Board, on
behalf of the Commonwealth.
Item 34 - Subsection 54(3)
This item replaces the term "Board" with "Authority" and allows for an agreement
under subsection (2) to be entered into by the Authority, rather than the Board, on
behalf of the Commonwealth.
Item 35 - Paragraph 55(1)(a)
This item replaces the term "Board" with "Authority" and provides that a grant of
financial assistance to a Territory can be made by the Authority, rather than the
Board, on behalf of the Commonwealth.
Item 36 - Subsection 55(3)
This item replaces the term "Board" with "Authority" and allows for an agreement
under subsection (2) to be entered into by the Authority, rather than the Board, on
behalf of the Commonwealth.
Item 37 - Subsection 56(1)(a)
This item replaces the term "Board" with "Authority" to allow a grant to be made to a
person other than a State or Territory by the Authority, rather than the Board.
Item 38 - after Subsection 56(2)
This item inserts subsection 56(2A) to require that any constitutional corporation
granted financial assistance must comply with the necessary terms and conditions.
Item 39 - Subsection 56(3)
This item replaces the term "Board" with "Authority" to allow the Authority, rather
than the Board, to enter into agreements under subsection 56(2) on behalf of the
Commonwealth.
Item 40 - before Subsection 58(1)
This item inserts subsection 58(1A) to provide that the Authority must not publish or
disseminate information that may identify donors or recipients.
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Item 41 - Subsection 58(2)
This item replaces references to "Subsection (1)" with "Subsections (1A) and (1)" in
relation to criteria that does not apply in the publication or dissemination of
information.
Item 42 - Subsection 59(2)
This item updates the terminology to replace "dead" with "deceased" to bring the
terminology in line with standard and accepted nomenclature used in the organ and
tissue donation and transplantation sector.
SCHEDULE 2 - Application, transitional and saving provisions
Item 1 - Definitions
This item sets out the definitions for schedule 2 for "commencement time", "OTA
Act" and "reporting period".
Item 2 - Functions of the CEO
This item stipulates that the CEO assumes the functions outlined in section 14B of the
OTA Act, once amended, regardless of whether the appointment occurred before or
after the commencement of this Act. That is, if the CEO is appointed prior to the
enactment of this Bill, once the legislation commences the CEO automatically
assumes the functions outlined in section 14B of the amended Act.
Item 3 - Board members
This item allows for Board members who have been appointed under section 31 of the
OTA Act, immediately before the commencement of this Act, to continue the existing
appointment under the amended legislation on the same terms and conditions. The
item does not prevent those terms and conditions being varied after the
commencement time.
Item 4 - Consultants
This item allows for the continued engagement of consultants who were engaged by
the Board under section 26 of the OTA Act, provided their engagement was in effect
immediately before commencement of this Act. This item further provides for the
preservation of the same terms and conditions relating to the person's engagement
applicable immediately before commencement of this Act. This item does not prevent
those terms and conditions being varied after the commencement time.
Item 5 - Expert advisory committee
This item allows for the continuation of expert advisory committees, established
under section 44 of the OTA Act, to continue after commencement of this Act. This
item also provides for the expert advisory committee to be dealt with as if established
by the CEO under this Act, after commencement of this Act.
Item 6 - Expert advisory committee members
This item allows for the continuation of expert advisory committee member
appointments, appointed by the Board under section 46 of the OTA Act, after
commencement of this Act. This item also allows for the appointment of an expert
advisory committee member to be taken to have been appointed by the CEO, and to
be appointed for the balance of their appointment that remained before the
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commencement of this Act on the same terms and conditions. This item does not
prevent those terms and conditions being varied after the commencement time.
Item 7 - Agreements regarding grants of financial assistance
This item allows for grants that have been made by the Board under the OTA Act, but
where agreements have not been signed, to be entered in to by the Authority once the
amended legislation commences.
Item 8 - Compliance with terms and conditions of grants of financial assistance
This item stipulates that a constitutional corporation must comply with the terms and
conditions set out in an agreement that was entered in to after the commencement of
this Act.
Item 9 - Protection of patient confidentiality
This item ensures the protection of patient confidentiality for information that was
obtained before, or after, the commencement of this Act.
Item 10 - Annual report etc
This item allows for the CEO to be the accountable authority for the purposes of
sections 39, 42 and 46 of the PGPA Act from 1 July 2021, and each later reporting
period.
Item 11 - Transitional rules
This item allows for the Minister to, by legislative instrument, make additional rules
prescribing matters that are of a transitional nature, that are not already covered by
Schedule 2, which are not excluded in 40(2).
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