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 Australian Organ and Tissue Donation and Transplantation Board is also established by this Act. The main functions of the Board are:
(a) to ensure the proper, efficient and effective performance of the Authority’s functions; and
(b) to determine objectives, strategies and policies to be followed by the Authority.
There is to be a Chief Executive Officer of the Authority. The CEO is responsible for the day‑to‑day administration of the Authority. The CEO is also a member of the Board.
4 Definitions
In this Act:
appointed member means a Board member other than the CEO.
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
Authority means the Australian Organ and Tissue Donation and Transplantation Authority.
Board means the Australian Organ and Tissue Donation and Transplantation Board.
Board member means a member of the Board (and includes the Chair, the Deputy Chair and the CEO).
CEO means the Chief Executive Officer of the Authority.
Chair means the Chair of the Board.
COAG Health Council means the body established by the Council of Australian Governments as the COAG Health Council.
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 Board.
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).
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
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.
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:
(a) the Board; and
(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 Authority is a listed entity; and
(b) the Board is the accountable authority of the Authority; and
(c) the following persons are officials of the Authority:
(i) the appointed Board members;
(ii) the CEO;
(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 Board referred to in section 13B; and
(iii) the functions of the CEO referred to in section 14B; 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 the Authority’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 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 2A—Australian Organ and Tissue Donation and Transplantation Board
Division 1—Establishment and functions of the Board
13A Establishment of the Board
The Australian Organ and Tissue Donation and Transplantation Board is established by this section.
13B Functions of the Board
(1) The functions of the Board are:
(a) to ensure the proper, efficient and effective performance of the Authority’s functions; and
(b) to determine objectives, strategies and policies to be followed by the Authority; and
(c) such other functions as are conferred on the Board by this Act or any other law; and
(d) such other functions (if any) as are determined in an instrument made under subsection (2) and given by the Minister to the Chair; and
(e) to do anything incidental or conducive to the performance of any of the above functions.
(2) The Minister may, by legislative instrument, determine one or more functions for the purposes of paragraph (1)(d).
(3) The Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
13C Delegation by the Board
(1) The Board may, in writing, delegate all or any of the Board’s powers and functions under section 13B to the CEO.
(2) In exercising any powers or performing any functions under a delegation, the CEO must comply with any directions of the Board.
13D Minister may give directions to the Board
(1) The Minister may, by legislative instrument, give written directions to the Board about the performance of the Board’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) The Board must comply with a direction under subsection (1).
(3) Subsection (2) does not apply to the extent that the direction relates to the Board’s performance of functions or exercise of powers under the Public Governance, Performance and Accountability Act 2013 in relation to the Authority.
Division 2—Members of the Board
13E Membership
The Board consists of:
(a) the Chair; and
(b) the Deputy Chair; and
(c) the CEO; and
(d) 5 other members.
13F Appointment of appointed Board members
(1) Subject to this section and section 13G, the appointed Board members are to be appointed by the Minister by written instrument, on a part‑time basis.
Note: An appointed Board member may be reappointed, see section 33AA of the Acts Interpretation Act 1901.
Eligibility for appointment as the Chair
(2) A person is not eligible for appointment as the Chair unless the Minister is satisfied that the person has substantial experience in, or substantial knowledge of, at least one of the following fields:
(a) public administration;
(b) business;
(c) management.
Eligibility for appointment as an appointed Board member (other than the Chair)
(3) A person is not eligible for appointment as an appointed Board member (other than the Chair) unless the Minister is satisfied that the person meets the requirements of subsection (4).
(4) A person meets the requirements of this subsection if:
(a) the person has substantial experience in, or substantial knowledge of, at least one of the following fields:
(i) public hospital administration;
(ii) community leadership or representation in relation to organ or tissue donation and transplantation matters;
(iii) consumer health issues;
(iv) promotion of health issues;
(v) any other appropriate field of expertise; or
(b) the person has substantial clinical expertise in organ or tissue donation; or
(c) the person has substantial clinical expertise in organ or tissue transplantation; or
(d) the person is a consumer of health services.
Mix of appointed Board members (other than the Chair)
(5) In appointing the appointed Board members (other than the Chair), the Minister must ensure, to the extent practicable, that those appointed Board members are an appropriate mix of persons meeting the requirements of subsection (4).
13G Nominations for appointment of certain appointed Board members
Deputy Chair
(1) Before the Minister (the Commonwealth Minister) appoints a person as the Deputy Chair, the Commonwealth Minister must request each of the following to give the Commonwealth Minister a written notice nominating a person for appointment as the Deputy Chair:
(a) the Minister of each State who is responsible, or principally responsible, for the administration of matters relating to health in the State;
(b) the Minister of the Northern Territory who is responsible, or principally responsible, for the administration of matters relating to health in that Territory;
(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.
(2) A Minister referred to in paragraph (1)(a), (b) or (c) must not give a notice under subsection (1) in relation to a person unless that Minister is satisfied that the person meets the requirements of subsection 13F(4).
(3) If a Minister referred to in paragraph (1)(a), (b) or (c) gives the Commonwealth Minister a notice under subsection (1), the Commonwealth Minister must consider the notice before appointing a person as the Deputy Chair.
Appointed Board members (other than the Chair or Deputy Chair)
(4) Before the Commonwealth Minister appoints one or more persons as appointed Board members (other than the Chair or Deputy Chair), the Commonwealth Minister must request the COAG Health Council to give the Commonwealth Minister a written notice nominating one or more persons for appointment as appointed Board members (other than the Chair or Deputy Chair).
(5) The COAG Health Council must not give a notice under subsection (4) in relation to a person unless the COAG Health Council is satisfied that the person meets the requirements of subsection 13F(4).
(6) If the COAG Health Council gives the Commonwealth Minister a notice under subsection (5), the Commonwealth Minister must consider the notice before appointing one or more persons as appointed Board members (other than the Chair or Deputy Chair).
13H Term of appointment
An appointed Board member holds office for the period specified in the instrument of appointment. The period must not exceed 4 years.
13J Acting appointment
Acting as the Chair
(1) The Minister may, by written instrument, appoint an appointed 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 appointed Board member (other than the Chair):
(a) during a vacancy in the office of an appointed 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 appointed 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 13F(4).
13K Remuneration
(1) An appointed 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 appointed Board member is to be paid the remuneration that is prescribed by the regulations.
(2) An appointed 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.
13L 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 appointed Board member on the terms and conditions that the Chair determines.
(3) The Chair must notify the Minister if the Chair grants an appointed Board member leave of absence for a period that exceeds 3 months.
13M Other terms and conditions
An appointed 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.
13N Resignation
(1) An appointed Board 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.
13P Termination of appointment
(1) The Minister may terminate the appointment of an appointed Board member:
(a) for misbehaviour; or
(b) if the appointed Board member is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of an appointed Board member if:
(a) the appointed 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 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 appointed Board member is absent, except on leave of absence, from 3 consecutive meetings of the Board; or
(c) the appointed 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 Board
13Q Convening meetings
(1) The 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 Board each financial year.
13R Presiding at meetings
(1) The Chair must preside at all meetings of the Board at which he or she is present.
(2) If the Chair is not present at a meeting of the Board:
(a) the Deputy Chair is to preside; or
(b) if the Deputy Chair is not present—the other Board members present must appoint one of themselves to preside.
13S Quorum
(1) At a meeting of the Board, a quorum is constituted by a majority of Board members.
(2) However, if:
(a) a Board member is required by rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the Board with respect to a particular matter; and
(b) when the Board member leaves the meeting concerned there is no longer a quorum present;
the remaining Board members at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.
13T Voting at meetings
(1) A question arising at a meeting of the Board is to be determined by a majority of the votes of the Board members present and voting.
(2) The person presiding at a meeting of the Board has a deliberative vote and, if the votes are equal, a casting vote.
13U Conduct of meetings
The Board may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.
13V Minutes
The Board must keep minutes of its meetings.
13W Decisions without meetings
(1) The Board is taken to have made a decision at a meeting if:
(a) without meeting, a majority of the Board members entitled to vote on the proposed decision indicate agreement with the decision; and
(b) that agreement is indicated in accordance with the method determined by the Board under subsection (2); and
(c) all the Board members were informed of the proposed decision, or reasonable efforts were made to inform all the members of the proposed decision.
(2) Subsection (1) applies only if the Board:
(a) has determined that it may make decisions of that kind without meeting; and
(b) has determined the method by which Board members are to indicate agreement with proposed decisions.
(3) For the purposes of paragraph (1)(a), a Board member is not entitled to vote on a proposed decision if the Board member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Board.
(4) The Board must keep a record of decisions made in accordance with this section.
Part 4—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 CEO is responsible for the day‑to‑day administration of the Authority.
Note: The CEO is also a member of the Board (see section 13E).
(2) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties.
(3) The CEO is to act in accordance with the objectives, strategies and policies determined by the Board under paragraph 13B(1)(b).
(4) The Board may give written directions to the CEO about the performance of the CEO’s duties.
(5) The CEO must comply with a direction under subsection (4).
(6) A direction under subsection (4) is not a legislative instrument.
14 Appointment of the CEO
(1) The CEO is to be appointed by the Minister by written instrument.
(1A) However, before the Minister appoints the CEO, the Minister must consult the Chair about the proposed appointment.
(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 4 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 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 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 Board 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 Board 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 5—Expert advisory committees
44 Establishment of expert advisory committees
(1) The Board 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 Board about organ or tissue donation and transplantation matters referred to it by the Board.
46 Appointment of expert advisory committee members etc.
(1) Each expert advisory committee member is to be appointed by the Board 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 Board may terminate the appointment of an expert advisory committee member.
47 Procedures of expert advisory committees
(1) The Board 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 Board may grant leave of absence to an expert advisory committee member on the terms and conditions that the Board determines.
50 Resignation
(1) An expert advisory committee member may resign his or her appointment by giving the Board a written resignation.
(2) The resignation takes effect on the day it is received by the Board or, if a later day is specified in the resignation, on that later day.
51 Disclosure of interests to the Board
(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 Board.
(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 Board 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 Board.
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 Board 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 Board 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 Board 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 Board 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 Board 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 Board 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.
