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Act No. 122 of 2008 as amended, taking into account amendments up to Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015
An Act to establish the Australian Organ and Tissue Donation and Transplantation Authority, and for other purposes
Administered by: Health
Registered 08 Mar 2016
Start Date 05 Mar 2016
End Date 30 Jun 2016

Australian Organ and Tissue Donation and Transplantation Authority Act 2008

No. 122, 2008

Compilation No. 5

Compilation date:                              5 March 2016

Includes amendments up to:            Act No. 126, 2015

Registered:                                         8 March 2016

 

About this compilation

This compilation

This is a compilation of the Australian Organ and Tissue Donation and Transplantation Authority Act 2008 that shows the text of the law as amended and in force on 5 March 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Simplified outline................................................................................ 1

4............ Definitions.......................................................................................... 2

5............ Vacancy in the office of an Advisory Council member....................... 4

6............ Crown to be bound............................................................................. 4

7............ Extension to external Territories.......................................................... 4

Part 2—Australian Organ and Tissue Donation and Transplantation Authority             5

8............ Establishment of the Australian Organ and Tissue Donation and Transplantation Authority   5

9............ Function of the Authority.................................................................... 5

Part 3—Chief Executive Officer of the Authority etc.                                    6

Division 1—Office and functions of the CEO                                                  6

10.......... CEO.................................................................................................... 6

11.......... Functions of the CEO......................................................................... 6

12.......... CEO must have regard to certain objectives etc................................... 9

13.......... Policy principles................................................................................ 10

Division 2—Appointment of the CEO                                                                11

14.......... Appointment of the CEO.................................................................. 11

15.......... Period of appointment for the CEO................................................... 11

16.......... Acting appointments......................................................................... 11

Division 3—Terms and conditions for the CEO                                           12

17.......... Remuneration and allowances........................................................... 12

18.......... Leave of absence............................................................................... 12

19.......... Resignation....................................................................................... 12

20.......... Outside employment......................................................................... 12

22.......... Termination of appointment.............................................................. 13

23.......... Other terms and conditions............................................................... 13

Division 4—Delegation                                                                                              14

24.......... Delegation by the CEO..................................................................... 14

Division 5—Staff etc.                                                                                                  15

25.......... Staff.................................................................................................. 15

26.......... Consultants....................................................................................... 15

27.......... Persons assisting the CEO................................................................ 15

Division 7—Directions by Minister                                                                     16

30.......... Minister may give directions to the CEO.......................................... 16

Part 4—Australian Organ and Tissue Donation and Transplantation Advisory Council            17

31.......... Establishment of the Australian Organ and Tissue Donation and Transplantation Advisory Council      17

32.......... Function of the Advisory Council..................................................... 17

33.......... Membership of the Advisory Council............................................... 17

34.......... Appointment of Advisory Council members etc............................... 17

35.......... Procedures of the Advisory Council................................................. 18

36.......... Acting appointments—Chair............................................................. 19

37.......... Acting appointments—members other than the Chair....................... 20

38.......... Remuneration and allowances........................................................... 20

39.......... Leave of absence............................................................................... 21

40.......... Resignation....................................................................................... 21

41.......... Disclosure of interests to the Minister............................................... 21

43.......... Other terms and conditions............................................................... 22

Part 5—Expert advisory committees                                                                        23

44.......... Establishment of expert advisory committees.................................... 23

45.......... Function of expert advisory committees............................................ 23

46.......... Appointment of expert advisory committee members etc.................. 23

47.......... Procedures of expert advisory committees........................................ 24

48.......... Remuneration and allowances........................................................... 24

49.......... Leave of absence............................................................................... 25

50.......... Resignation....................................................................................... 25

51.......... Disclosure of interests to the CEO.................................................... 25

53.......... Other terms and conditions............................................................... 26

Part 5A—Application of the finance law                                                              27

53A....... Application of the finance law........................................................... 27

Part 6—Grants                                                                                                                      28

54.......... Grant to a State.................................................................................. 28

55.......... Grant to a Territory........................................................................... 28

56.......... Grant to a person other than a State or Territory............................... 29

Part 7—Miscellaneous                                                                                                       31

57.......... Compliance with policies, protocols, standards and codes................ 31

58.......... Protection of patient confidentiality................................................... 31

59.......... Concurrent operation of State and Territory laws etc........................ 32

60.......... Regulations....................................................................................... 33

Endnotes                                                                                                                                    34

Endnote 1—About the endnotes                                                                            34

Endnote 2—Abbreviation key                                                                                36

Endnote 3—Legislation history                                                                             37

Endnote 4—Amendment history                                                                           39

 


An Act to establish the Australian Organ and Tissue Donation and Transplantation Authority, and for other purposes

Part 1Preliminary

  

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 2Australian 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 3Chief Executive Officer of the Authority etc.

Division 1Office 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 2Appointment 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:          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 3Terms 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 4Delegation

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 5Staff 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 7Directions 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 Legislation Act 2003 does not apply to the direction—see regulations made for the purposes of paragraph 44(2)(b) of that Act.

Note 2:       Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the direction—see regulations made for the purposes of paragraph 54(2)(b) of that Act.

Part 4Australian 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:          An Advisory Council member may be reappointed: see section 33AA 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.

Note:          For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

             (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).

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.

Note:          For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

             (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).

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

             (1)  A disclosure by an Advisory Council 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 Minister.

             (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 Advisory Council 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 Minister may terminate the appointment of an Advisory Council 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 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 5Expert 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:          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 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

             (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 CEO.

             (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 CEO 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 CEO.

Part 5AApplication of the finance law

  

53A  Application of the finance law

                   For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

                     (a)  the following combination of bodies is a listed entity:

                              (i)  the Authority;

                             (ii)  the Advisory Council; and

                     (b)  the listed entity is to be known as the Australian Organ and Tissue Donation and Transplantation Authority; and

                     (c)  the CEO is the accountable authority of the listed entity; and

                     (d)  the following persons are officials of the listed entity:

                              (i)  the CEO;

                             (ii)  the staff of the Authority;

                            (iii)  the Advisory Council members;

                            (iv)  consultants engaged under section 26;

                             (v)  persons whose services are made available to the CEO under section 27;

                            (vi)  an expert advisory committee member; and

                     (e)  the purposes of the listed entity include:

                              (i)  the function of the Authority referred to in section 9; and

                             (ii)  the functions of the CEO referred to in section 11; and

                            (iii)  the function of the Advisory Council referred to in section 32; and

                            (iv)  the function of an expert advisory committee referred to in section 45.

Part 6Grants

  

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 7Miscellaneous

  

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.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

 

 

 

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Australian Organ and Tissue Donation and Transplantation Authority Act 2008

122, 2008

25 Nov 2008

1 Jan 2009

 

Statute Law Revision Act 2010

8, 2010

1 Mar 2010

Schedule 5 (item 137(a)): 1 Mar 2010 (s 2(1) item 38)

Acts Interpretation Amendment Act 2011

46, 2011

27 June 2011

Schedule 2 (items 217–226) and Schedule 3 (items 10, 11): 27 Dec 2011

Sch. 3 (items 10, 11)

Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014

62, 2014

30 June 2014

Sch 6 (item 21), Sch 7 (items 357–361) and Sch 14: 1 July 2014 (s 2(1) items 6, 14)

Sch 14

as amended by

 

 

 

 

Public Governance and Resources Legislation Amendment Act (No. 1) 2015

36, 2015

13 Apr 2015

Sch 2 (items 79) and Sch 7: 14 Apr 2015 (s 2)

Sch 7

as amended by

 

 

 

 

Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015

126, 2015

10 Sept 2015

Sch 1 (item 486): 5 Mar 2016 (s 2(1) item 2)

Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015

126, 2015

10 Sept 2015

Sch 1 (item 495): 5 Mar 2016 (s 2(1) item 2)

Norfolk Island Legislation Amendment Act 2015

59, 2015

26 May 2015

Sch 2 (items 72–73): 1 July 2016 (s 2(1) item 5)
Sch 2 (items 356–396): 18 June 2015 (s 2(1) item 6)

Sch 2 (items 356–396)

Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015

126, 2015

10 Sept 2015

Sch 1 (item 54): 5 Mar 2016 (s 2(1) item 2)

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

s 4........................................

am No 59, 2015

Part 3

 

Division 1

 

s. 11.....................................

am. No. 8, 2010

Division 2

 

Note to s. 15........................

rs. No. 46, 2011

s. 16.....................................

am. No. 46, 2011

Note to s. 16........................

ad. No. 46, 2011

Division 3

 

s 21......................................

rep No 62, 2014

s 22......................................

am No 62, 2014

Division 6............................

 

Division 6

rep No 62, 2014

s 28......................................

rep No 62, 2014

s 29......................................

rep No 62, 2014

Division 7

 

s 30...................................... ............................................

am No 126, 2015

Part 4

 

Note to s. 34(3)....................

rs. No. 46, 2011

s. 36.....................................

am. No. 46, 2011

Note to s. 36(1)....................

ad. No. 46, 2011

s. 37.....................................

am. No. 46, 2011

Note to s. 37(1)....................

ad. No. 46, 2011

s 41......................................

rs No 62, 2014

s 42......................................

rep No 62, 2014

Part 5

 

Note to s. 46(2)....................

rs. No. 46, 2011

s 51......................................

rs No 62, 2014

s 52......................................

rep No 62, 2014

Part 5A

 

Part 5A.................................

ad No 62, 2014

s 53A................................. P

ad No 62, 2014