HEALTH AND COMMUNITY SERVICES COMPLAINTS AMENDMENT BILL 2011

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR HEALTH

SERIAL NO. 152

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Health and Community Services Complaints Act 
(the Act):

(a)	so that the Legislative Assembly is no longer involved in processes relating to the appointment or suspension of the Commissioner for Health and Community Services Complaints;
(b)	so that employees of the Commissioner are public sector employees provided to the Commissioner by the relevant Chief Executive Officer for the Act; 
(c)	by providing for matters consequential to the changes in the appointment process (including transitional provisions);
(d)	by providing for transitional arrangements consequential to clarification of the status of the members of the staff of the Commission; and
(e)	making amendments of a minor or statute law revision nature.

NOTES ON CLAUSES

Clause 1.	Short Title.

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Health and Community Services Complaints Amendment Act 2011.

Clause 2.	Commencement.

The Bill will commence on such day or days as are determined by the Administrator.

Clause 3.	Act amended

The Act being amended by the Bill is the Health and Community Services Complaints Act (the Act).

Clause 4.	Section 4 amended

Clause 4 amends the Act by omitting the definition of “employee” and substituting new definitions of “contractor” and “staff member”.  These amendments are consequential to the changes made to section 14 and related provisions (such as sections 7. 8, 17, 46, 95, 97 and 102). 

Clause 4 also makes amendments of a statute law nature (as identified by Parliamentary Counsel) to various definitions contained in section 4. 

Clause 5.	Section 7 amended

This clause amends section 7(2) consequential to amendments made to section 14 (and the definitions in section 4). 

Clause 6.	Section 9 amended

This clause amends section 9(1) so that the Administrator when making an appointment of the Commissioner for Health and Community Services Complaints (the Commissioner) no longer has to receive a recommendation from the Legislative Assemby. 

Clause 7.	Section 10 amended

This clause amends section 10(1) so that it is plainer that any or a combination of the factual situations set out in section 10(1) may form the basis on which an acting Commissioner may be appointed by the Administrator.  This amendment is a statute law revision amendment. 

This clause also amends section 10(2) so that there is no longer a capacity for there to be a temporary appointment that lasts, on the recommendation of the Legislative Assembly, for a period longer than three months.

Clause 8.	Section 11 amended

This clause amends section 11 consequential to amendments made to section 14 (and the definitions in section 4). 

Clause 9.	Section 14 replaced

This clause omits and replaces section 14.

14.  Staff and facilities for Commissioner

New section 14 provides that it is the duty of the Chief Executive Officer responsible for the Agency that administers the Act (as established by the Administrative Arrangements Orders made under section 35 of the Interpretation Act) to provide to the Commissioner the staff and facilities that are necessary for the Commissioner to perform the Commissioner’s functions. The Commissioner may also enter into arrangements with Chief Executive Officers of other agencies concerning staff and facilities.  

New section 14 also provides that the Commissioner may engage consultants who provide specific services or advice to the Commissioner (eg specific legal or medical advice).  Such persons are not employees and are not members of the staff of the Commission for the purposes of section 7(2).

The purpose of the amendment to section 14 is to ensure that all employees are public sector employees employed under lines of authority derived from the Public Sector Employment and Management Act.  Proposed new section 14(3) also makes it quite clear that employees when performing statutory or any other functions are only subject to the direction of the Commissioner or some other person staff member of the Commissioner.  The term “public sector employee” is defined in the Interpretation Act.

Clause 10.	Section 17 amended

This clause amends section 17 (and its heading) consequential to amendments made to section 14 (and the definitions in section 4). 

Clause 11.	Section 46 amended

This clause amends section 46 consequential to amendments made to section 14 (and the definitions in section 4). 

Clause 12.	Section 47 amended

This clause amends section 12 consequential to amendments made to section 14 (and the definitions in section 4). 

Clause 13.	Section 95 amended

This clause amends section 95 consequential to amendments made to section 14 (and the definitions in section 4). 

Clause 14.	Section 97 amended

This clause amends section 97(4) consequential to amendments made to section 14 (and the definitions in section 4).  The clause also makes statute law revision amendments identified by Parliamentary Counsel. 

Clause 15.	Section 102 amended

This clause amends section 102 consequential to amendments made to section 14 (and the definitions in section 4). The clause also makes statute law revision amendments identified by Parliamentary Counsel

Clause 16.	Section 103 repealed

This clause repeals section 103 (which deals with the service of notices).  The section unnecessarily duplicates section 25 of the Interpretation Act, 

Clause 17	Part 11 and Division 1 headings inserted

This clause inserts a heading for new Part 11 (Transitional matters) and also names current section 107 as Division 1 of Part 11.

Clause 18.	Part 11, Division 2 inserted

This clause inserts Division 2 of Part 11.

Division 2	Health and Community Services Complaints Amendment Act 2011

108	Definitions

New section 108 contains a definition (of ‘2011 amendments’) that used for the purposes of new sections 109 and 110.

109	Commissioner and Commissioner and acting Commissioner
New section 109 provides that the 2011 amendments (namely the amendments to sections 9 and 10) do not affect any appointment concerning the Commissioner’s position made prior to the commencement of this legislation (Health and Community Services Complaints Amendment Bill 2011).

110	Staff and facilities

New section 110 provides that the 2011 amendments to not effect any current employment arrangements or, more particularly, any rights of any current employee. 

Clause 19 	Schedule 1 amended

This clause amends the schedule (clause 1(3)) by removing the reference to the Ombudsman. The effect of this amendment is that the position can be held in conjunction with any other public office (including the Ombudsman).

The clause also omits the requirement that notice of the Commissioner’s appointment be tabled in the Legislative Assembly and also notices concerning suspension from office.  These amendments are consequential to the amendment made to section 14.

The clause also makes statute law revision amendments identified by Parliamentary Counsel (eg inserting a name for the overall purpose of the schedule, use of lower case for headings, terminology regarding public sector employees).

Clause 20 	Act further amended

This clause provides for a schedule of minor amendments.

Schedule – Health and Community Services Complaints Act further amended

The schedule contains minor amendments of a statute law revision nature as identified by Parliamentary Counsel.

Additionally, the following amendments are also made:
·	section 64(2).  Removal of the reference to a need to hold certain proceedings in Chambers.  Procedural rules like this should be contained in the Supreme Court Act or Supreme Court Rules.  Section 9A of the Supreme Court Act also abolishes the difference between “court” and “chambers”. 
·	Section 65(2).  The word “and” used at the end of section 65(2)(b) is an error.  It should be “or” if the section is make precise sense.