Revised Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Scott Morrison MP)Chapter 7 Abolishing the National Health Performance Authority
Amendments
Part 1 Amendments
The Schedule repeals Chapter 3 of the National Health Reform Act 2011 (the Act) to abolish the National Health Performance Authority (NHPA), and repeals other sections of the Act that refer to the NHPA.
Item 1 Paragraph 3(b)
Repeal of this paragraph removes the reference to the NHPA from the statement of the object of the Act, which is to establish a number of government bodies.
Item 2 Section 4
The amendments remove references to the NHPA from the Simplified Outline of the Act.
Item 3 Section 4
The amendments remove references to the NHPA's functions from the Simplified Outline of the Act.
Item 4 Section 5
This item repeals the first appearing definition of local hospital network given in Section 5 Definitions, which is the definition that applies throughout Chapter 3 of the Act that governs the functions and operations of the NHPA.
Item 5 Section 5
This amendment to the second appearing definition of local hospital network removes the reference to the use of the term in Part 5.2 of the Act, which is no longer needed following the repeal of the first appearing definition and of Chapter 3.
Item 6 Section 5
This item repeals a number of terms defined in Section 5 Definitions which are used in Chapter 3. These either refer to the Performance Authority or are used in descriptions of the functions or operations of the NHPA.
Item 7 Section 5 (paragraph (b) of the definition of vacancy
This item repeals the reference to a member of the Performance Authority from the definition.
Item 8 Subsection 6(2)
This item repeals the reference to the Chair , Deputy Chair and members of the Performance Authority from Section 6 Vacancies.
Item 9 Paragraph 54H(1)(a)
This item repeals the reference to the Performance Authority from the list of agencies, bodies and persons given in paragraph 54H(1) which relates to the disclosure of protected Commission information by the Australian Commission for Safety and Quality in Health Care to the listed entities.
Item 10 Chapter 3
This item repeals the whole of Chapter 3, abolishing the NHPA and ceasing the functions of the Chief Executive Officer, NHPA staff and the NHPA's Committees.
Item 11 Paragraph 220(1)(a)
This item repeals the reference to the Performance Authority from the list of agencies, bodies and persons given in paragraph 220(1) which relates to the disclosure of protected Pricing Authority information by the Independent Hospital Pricing Authority to the listed entities.
Item 12 Paragraph 275(1)(b)
This item repeals the reference to the Performance Authority from the list of agencies, bodies and persons given in paragraph 275(1) which relates to the disclosure of protected Funding Body information by the Administrator of the Funding Pool to the listed entities.
Item 13 Paragraph 279(1)(b)
This item repeals the reference to the Performance Authority from the list of bodies established under the Act given in paragraph 279(1) which relates to the disclosure by any of the bodies listed of information that is likely to enable the identification of a particular patient.
Part 2 - Application and transitional provisions
The Schedule enables transitional arrangements to be implemented that deal with matters that accompany the cessation of the NHPA and the transfer of assets and liabilities to the AIHW.
Division 1 Interpretation
Item 14 Interpretation
This item sets out definitions of terms relating to the transfer of agency assets and liabilities that are relied on in a number of provisions in Division 2 of Part 2 of the Schedule, including, for example, assets official and land registration official .
Division 2 Transfer of assets and liabilities
Item 15 Vesting of assets and Item 16 Vesting of liabilities
These items set out that the assets and liabilities of the NHPA become assets and liabilities of the AIHW at the transition time , which is defined in Item 14.
Item 17 Transfers of land may be registered and Item 18 Certificates relating to vesting of assets other than land
These items set out that if land or an asset other than land vests in the AIHW, and the Health Minister has signed a certificate that identifies the land or the asset and states that it has become vested with the AIHW under Division 2, then a land registration official or assets official, as defined in Item 14, may deal with the matter to give effect to the certificate. These items are included to assist readers, as the certificate in not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 20013 .
Division 3 Transfer of other matters - items 19, 20, 21, 22, 23 and 24
The provisions in Division 3 address the treatment of a range of matters that applied to the NHPA before the transition time , which is defined in Item 14. The general principle applied is that after the transition time , the matter in question is to be treated as if it applied to the AIHW. The matters include things done by the NHPA or the NHPA CEO (Item 19), references in certain instruments to the NHPA or the NHPA CEO (Item 20), the transfer of appropriated money (Item 21), and legal proceedings of the NHPA (Item 22),
In addition, Division 3 addresses the transfer of NHPA's records and documents to the AIHW (Item 23), and the application of the Safety, Rehabilitation and Compensation Act 1988 to persons who were staff of the NHPA at any time before the transition time (Item 24).
Item 25 No transfer of appointment, engagement or employment of staff
This item states that none of the application and transfer provisions set out in Part 2 have the effect of extending the engagement of members of the Performance Authority or of staff who were employed by the NHPA immediately before the transition time to the AIHW.
Division 4 Annual reporting obligation
Item 26 Final annual report for the NHPA
The provisions in this item set out that the report on the activities of the NHPA required under the Public Governance, Performance and Accountability Act 2013 for the final reporting period will be prepared by the Health Secretary and given to the Health Minister for presentation to the Parliament.
Division 5 Disclosure and use of information - items 27, 28 and 29
The provisions in Division 5 are intended to ensure that the provisions of the National Health Reform Act 2011 regarding secrecy and the protection of information, and patient confidentiality continue to apply after the transition time . The provisions cover protected Performance Authority information (Item 27), the use of personal information in reports (Item 28), and the protection of patient confidentiality (Item 29).
Division 6 Miscellaneous - items 30, 31, 32, 33 and 34
The provisions in Division 6 are intended to ensure the transparent, efficient and effective transfer of the matters covered in Part 2 to the AIHW. They cover matters such as stamp duty and other state or territory taxes in relation to vested assets (Item 30), certificates issued under Part 2 (Item 31) (noting that this provision is intended to assist readers, as the certificates are not instruments within the meaning of subsection 8(1) of the Legislation Act 2003), delegation by the Health Minister of powers and functions under Part 2 (Item 32), and compensation for the acquisition of property (Item 33).
In addition, Division 6 enables the Health Minister to make rules on transitional matters relating to the amendments or repeals made by this Schedule (Item 34). This is intended to allow the Minister to respond to transitional matters not anticipated in the preparation of this Schedule that may otherwise prevent the orderly and timely transfer of assets and liabilities and other matters covered in Part 2. It is intended that any functions conferred on the AIHW by the Minister under Item 34(2)(a) can only be of a transitional nature. It is not intended that any permanent functions that would operate after transition would be conferred.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Abolishing the National Health Performance Authority
These amendments are 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
This Schedule repeals Chapter 3 of the National Health Reform Act 2011 to abolish the National Health Performance Authority.
Human rights implications
In considering whether the repeal of Chapter 3 of the Act engages any applicable rights or freedoms, particular consideration has been given to the right to health contained in article 12 of the International Covenant on Economic, Social and Cultural Rights.
The main function of the National Health Performance Authority (NHPA) is to monitor and report on the performance of hospitals, primary health care organisations and other bodies or organisations that provide health services. In this respect, the bill may be seen as engaging the right to health.
However, the Australian Institute of Health and Welfare (AIHW) will continue to publish the performance reports previously published by the NHPA. Previous administrative arrangements for the collection of data, the monitoring of performance and the publication of reports will not be affected by the abolition of the NHPA.
The abolition of the NHPA will have no effect on the ability of hospitals and other services to provide health care to patients and will not impose any additional regulatory burden on health services.
Therefore the repeal of Chapter 3 of the Act does not limit any applicable human rights.
Conclusion
This Schedule is compatible with human rights as it does not raise any human rights issues.