Australian Organ and Tissue Donation and Transplantation
Authority Act 2008
No. 122, 2008
An Act to establish the Australian Organ and Tissue Donation and
Transplantation Authority, and for other purposes
[Assented to 25 November 2008]
The Parliament of Australia enacts:
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 sets up the Australian Organ and Tissue Donation and Transplantation
Authority.
• There
is to be a Chief Executive Officer of the Authority.
• The
Chief Executive Officer has functions relating to organ or tissue donation and
transplantation matters.
• The
Authority has the function of assisting the Chief Executive Officer.
• This
Act also sets up the Australian Organ and Tissue Donation and Transplantation
Advisory Council.
• The
Advisory Council has the function of advising the Chief Executive Officer of
the Authority about organ or tissue donation and transplantation matters.
4
Definitions
In this Act:
Advisory Council means the Australian Organ
and Tissue Donation and Transplantation Advisory Council.
Advisory Council member means a member of the
Advisory Council, and includes the Chair of the Advisory Council.
Authority means the Australian Organ and
Tissue Donation and Transplantation Authority.
CEO means the Chief Executive Officer of the
Authority.
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.
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 dead) 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 dead);
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;
(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).
partner of a person means:
(a) the person’s spouse; or
(b) the person’s de facto
partner.
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.
vacancy, in relation to the office of an
Advisory Council member, has a meaning affected by section 5.
5
Vacancy in the office of an Advisory Council member
For the purposes of a reference in:
(a) this Act to a vacancy in the
office of an Advisory Council member; or
(b) the Acts Interpretation Act
1901 to a vacancy in the membership of a body;
there are taken to be 15 offices of Advisory Council
members in addition to the Chair of the Advisory Council.
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 other than Norfolk Island.
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:
(a) the Chief Executive Officer of the
Authority; and
(b) the staff of the Authority.
Note: The Authority does not have a legal identity
separate from the Commonwealth.
9
Function of the Authority
The function of the Authority is to
assist the CEO in the performance of the CEO’s functions.
Part 3—Chief Executive Officer of the Authority etc.
Division 1—Office and functions of the CEO
10 CEO
There is to be a Chief Executive Officer
of the Authority.
Note: In this Act, CEO means the Chief
Executive Officer of the Authority—see section 4.
11
Functions of the CEO
(1) The functions of the CEO 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 CEO 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 CEO; 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 CEO may perform the CEO’s functions
only:
(a) for purposes related to money
appropriated for the purposes of the Commonwealth; or
(b) for purposes related to the
granting of financial assistance to a State on such terms and conditions as the
Parliament thinks fit; or
(c) for purposes related to the
executive power of the Commonwealth; or
(d) for purposes related to the
collection of statistics; or
(e) in, or for purposes related to, a
Territory; or
(f) in or with respect to a
Commonwealth place (within the meaning of the Commonwealth Places
(Application of Laws) Act 1970); or
(g) for purposes related 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
(h) by way of the provision of services
to a constitutional corporation, where the services are directed towards
improving the skills and knowledge of:
(i) employees of the
corporation; or
(ii) other individuals
associated with the corporation;
who are involved in providing
organ or tissue donation and transplantation services; or
(i) by way of the promotion of organ
or tissue donation and transplantation services provided by constitutional
corporations; or
(j) by way of the use of a postal,
telegraphic, telephonic or other like service within the meaning of paragraph
51(v) of the Constitution; or
(k) by way of the provision of a
service to:
(i) the Commonwealth; or
(ii) an authority of the
Commonwealth;
for a purpose of the
Commonwealth; or
(l) for purposes related to the implied
power of the Parliament to make laws with respect to nationhood; or
(m) for purposes related to matters
incidental to the execution of any of the legislative powers of the Parliament
or the executive power of the Commonwealth.
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 CEO
must have regard to certain objectives etc.
In performing the CEO’s functions under
this Act, the CEO 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
CEO considers relevant.
13
Policy principles
(1) The Minister may give written policy
principles to the CEO about the performance of the CEO’s functions.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) The Minister must cause a copy of the
policy principles to be tabled in each House of the Parliament within 15
sitting days of that House after the day on which they were given to the CEO.
(3) The CEO must comply with the policy
principles (if any) when performing the CEO’s functions.
(4) Policy principles are not legislative
instruments.
Division 2—Appointment of the CEO
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: For re‑appointment, see subsection
33(4A) of the Acts Interpretation Act 1901.
16
Acting appointments
(1) 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.
Validation
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Note: See sections 20 and 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.
21
Disclosure of interests to the Minister
The CEO must give written notice to the
Minister of all interests, pecuniary or otherwise, that the CEO has or acquires
and that conflict or could conflict with the proper performance of the CEO’s
functions.
22
Termination of appointment
(1) The Minister may terminate the
appointment of the CEO for misbehaviour or 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 employment outside the duties of his or her
office; or
(d) the CEO fails, without reasonable
excuse, to comply with section 21.
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 4—Delegation
24
Delegation by the CEO
(1) The CEO may, by writing, delegate any or
all of the CEO’s functions and powers to a person who is a member of the staff
of the Authority.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) A delegate must comply with any written
directions of the CEO.
(3) Subsection (1) does not apply to a
function conferred by paragraph 11(1)(a) or (b).
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 engage persons having
suitable qualifications and experience as consultants to the CEO.
(2) The consultants are to be engaged on the
terms and conditions that the CEO determines in writing.
27
Persons assisting the CEO
The CEO 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 CEO in connection
with the performance of any of the CEO’s functions.
Division 6—Reports and information
28
Annual report
(1) The CEO must, as soon as practicable
after the end of each financial year, prepare and give to the Minister, for
presentation to the Parliament, a report on the operations of the CEO, and the
Authority, during that year.
Note: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
(2) For the purposes of subsection (1),
the 6‑month period beginning on 1 January 2009 is taken to be a
financial year.
29
Minister may require the CEO to prepare reports or give information
Reports
(1) The Minister may, by written notice given
to the CEO, require the CEO to:
(a) prepare a report about one or more
specified matters relating to the performance of the CEO’s functions; and
(b) give a copy of the report to the
Minister within the period specified in the notice.
Information
(2) The Minister may, by written notice given
to the CEO, require the CEO to:
(a) prepare a document setting out
specified information relating to the performance of the CEO’s functions; and
(b) give a copy of the document to the
Minister within the period specified in the notice.
Compliance
(3) The CEO must comply with a requirement
under subsection (1) or (2).
Division 7—Directions by Minister
30
Minister may give directions to the CEO
(1) The Minister may, by legislative
instrument, give directions to the CEO about the performance of the CEO’s
functions.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(2) Directions given by the Minister under
subsection (1) must be of a general nature only.
(3) The CEO must comply with a direction
given by the Minister under subsection (1).
(4) Subsection (3) does not apply to the
extent that the direction relates to the CEO’s performance of functions or
exercise of powers under the Public Service Act 1999 in relation to the
Authority.
Note 1: Section 42 (disallowance) of the Legislative
Instruments Act 2003 does not apply to the direction—see section 44 of
that Act.
Note 2: Part 6 (sunsetting) of the Legislative
Instruments Act 2003 does not apply to the direction—see section 54 of
that Act.
Part 4—Australian Organ and Tissue Donation and Transplantation
Advisory Council
31
Establishment of the Australian Organ and Tissue Donation and Transplantation
Advisory Council
The Australian Organ and Tissue Donation
and Transplantation Advisory Council is established.
Note: In this Act, Advisory Council means
the Australian Organ and Tissue Donation and Transplantation Advisory
Council—see section 4.
32
Function of the Advisory Council
The Advisory Council has the function of
advising the CEO about organ or tissue donation and transplantation matters.
33
Membership of the Advisory Council
The Advisory Council consists of the
following members:
(a) a Chair;
(b) at least 9, and not more than 15,
other members.
34
Appointment of Advisory Council members etc.
(1) Each
Advisory Council member is to be appointed by the Minister by written
instrument.
(2) Before appointing a person to the
Advisory Council, 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.
(3) An Advisory Council member holds office
for the period specified in the instrument of appointment. The period must not
exceed 3 years.
Note: For re‑appointment, see subsection
33(4A) of the Acts Interpretation Act 1901.
(4) An
Advisory Council member holds office on a part‑time basis.
(5) The Minister may terminate the
appointment of an Advisory Council member.
(6) A person is not eligible for appointment
to the Advisory Council unless the Minister is satisfied that the person has
substantial experience or knowledge in at least one of the following fields:
(a) public administration;
(b) an organ or tissue donation and
transplantation matter;
(c) business;
(d) management;
(e) finance;
(f) health consumer issues;
(g) any other appropriate field of
expertise.
35
Procedures of the Advisory Council
(1) The Advisory Council is to hold:
(a) at least 4 meetings during:
(i) the financial year
beginning on 1 July 2009; and
(ii) each later financial
year; and
(b) at least 2 meetings during the 6‑month
period beginning on 1 January 2009; and
(c) such other meetings (if any) as
are necessary for the performance of its function.
(2) The Minister may give the Advisory
Council written directions about:
(a) the way in which the Advisory
Council 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.
(3) A direction given under
subsection (2) is not a legislative instrument.
36
Acting appointments—Chair
(1) The Minister may appoint a person to act
as the Chair of the Advisory Council:
(a) during a vacancy in the office of
the Chair of the Advisory Council (whether or not an appointment has previously
been made to the office); or
(b) during any period, or during all
periods, when the Chair of the Advisory Council:
(i) is absent from duty or
from Australia; or
(ii) is, for any reason,
unable to perform the duties of the office.
(2) A person is not eligible for appointment
to act as the Chair of the Advisory Council unless the person is eligible for
appointment as an Advisory Council member.
Note: See subsection 34(6).
Validation
(3) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Note: See sections 20 and 33A of the Acts
Interpretation Act 1901.
37
Acting appointments—members other than the Chair
(1) The Minister may appoint a person to act
as an Advisory Council member other than the Chair.
(2) A person is not eligible for appointment
to act as an Advisory Council member unless the person is eligible for
appointment as an Advisory Council member.
Note: See subsection 34(6).
Validation
(3) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
Note: See section 33A of the Acts
Interpretation Act 1901.
38
Remuneration and allowances
(1) An Advisory Council 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 Advisory Council 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 Advisory Council
member who has a similar relationship with the Commonwealth or a Territory. See
subsection 7(11) of the Remuneration Tribunal Act 1973.
(3) An Advisory Council 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.
39
Leave of absence
(1) The Chair of the Advisory Council may
grant leave of absence to any other Advisory Council member on the terms and conditions
that the Chair determines.
(2) The CEO may grant leave of absence to the
Chair of the Advisory Council on the terms and conditions that the CEO
determines.
40
Resignation
(1) An Advisory Council member 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.
41
Disclosure of interests to the Minister
An Advisory Council member must give
written notice to the Minister of all interests, pecuniary or otherwise, that
the member has or acquires and that conflict or could conflict with the proper
performance of the member’s functions.
42
Disclosure of interests to the Advisory Council
(1) An Advisory Council member who has
an interest, pecuniary or otherwise, in a matter being considered or about to
be considered by the Advisory Council must disclose the nature of the interest
to a meeting of the Advisory Council.
(2) The disclosure must be made as soon as
possible after the relevant facts have come to the member’s knowledge.
(3) The disclosure must be recorded in the
minutes of the meeting of the Advisory Council.
(4) Unless the Advisory Council otherwise
determines, the Advisory Council member:
(a) must not be present during any
deliberation by the Advisory Council on the matter; and
(b) must not take part in any decision
of the Advisory Council with respect to the matter.
(5) For the purposes of making a
determination under subsection (4), the Advisory Council member:
(a) must not be present during any
deliberation of the Advisory Council for the purpose of making the
determination; and
(b) must not take part in making the
determination.
(6) A determination under subsection (4)
must be recorded in the minutes of the meeting of the Advisory Council.
(7) The Minister may terminate the
appointment of an Advisory Council member if the member fails, without
reasonable excuse, to comply with this section.
(8) Subsection (7) does not limit
subsection 34(5).
43
Other terms and conditions
An Advisory Council 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.
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: For re‑appointment, see subsection
33(4A) 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
An expert advisory committee member must
give written notice to the CEO of all interests, pecuniary or otherwise, that
the member has or acquires and that conflict or could conflict with the proper
performance of the member’s functions.
52
Disclosure of interests to an expert advisory committee
(1) A person who:
(a) is an expert advisory committee
member; and
(b) has an interest, pecuniary or
otherwise, in a matter being considered or about to be considered by an expert
advisory committee of which the person is a member;
must disclose the nature of the interest to a meeting of
the committee.
(2) The disclosure must be made as soon as
possible after the relevant facts have come to the expert advisory committee
member’s knowledge.
(3) The disclosure must be recorded in the
minutes of the meeting of the expert advisory committee.
(4) Unless the expert advisory committee
otherwise determines, the expert advisory committee member:
(a) must not be present during any
deliberation by the expert advisory committee on the matter; and
(b) must not take part in any decision
of the expert advisory committee with respect to the matter.
(5) For the purposes of making a
determination under subsection (4), the expert advisory committee member:
(a) must not be present during any
deliberation of the expert advisory committee for the purpose of making the
determination; and
(b) must not take part in making the
determination.
(6) A determination under subsection (4)
must be recorded in the minutes of the meeting of the expert advisory
committee.
(7) The CEO may terminate the appointment of
an expert advisory committee member if the member fails, without reasonable
excuse, to comply with this section.
(8) Subsection (7) 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 CEO 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 CEO 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 CEO 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 CEO 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 CEO 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.
(3) An agreement under subsection (2)
may be entered into by the CEO 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
(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) Subsection (1) does 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
(b) if the organ or tissue donor or
recipient has died but is survived by a person (the surviving partner)
who was:
(i) his or her partner
immediately before he or she died; and
(ii) living with him or her
immediately before he or she died;
the surviving partner; 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) For the purposes of
paragraph (2)(b), a person is taken to have been living with his or her
partner at a particular time if they were not living together at that time only
because of:
(a) a temporary absence from each
other; or
(b) illness or infirmity of either or
both of them.
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 dead).
(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.