Chapter 4 Statutory health corporations
Part 1 Constitution of statutory health corporations
41 Constitution of statutory health corporations
(cf AHS Act s 5, PH Act s 18 (1))
(1) There are constituted by this section such statutory health corporations as are specified from time to time in Schedule 2.(2) A statutory health corporation is a body corporate with the corporate name specified in Schedule 2.(3) A statutory health corporation is to be a chief executive governed health corporation, a board governed health corporation or a specialty network governed health corporation, as specified from time to time in Schedule 2.
42 Amendment of Schedule 2 (Statutory health corporations)
(cf AHS Act s 6, PH Act s 18 (2) and (2A))
The Governor may, by order published on the NSW legislation website:(a) amend Schedule 2 by inserting, altering or omitting the name of a statutory health corporation, or(a1) amend Schedule 2 by changing its governance from:(i) chief executive governance to board governance or specialty network governance, or(ii) board governance to chief executive governance or specialty network governance, or(iii) specialty network governance to chief executive governance or board governance, or(b) omit Schedule 2 and insert instead a Schedule containing the names of statutory health corporations and the nature of their governance.
43 Dissolution, transfer, amalgamation or change of name or nature of governance of statutory health corporations
(cf AHS Act ss 9 and 21, PH Act ss 13A, 14 and 15)
(1) The Governor may, by order published on the NSW legislation website:(a) dissolve a statutory health corporation, or(b) transfer a statutory health corporation to a local health district, or(c) amalgamate 2 or more statutory health corporations, or(d) change the name or nature of governance of a statutory health corporation,and may, in the order, amend Schedules 1 and 2 accordingly.(2) An order under this section must specify the date (being a date that is on or after the date it is published on the NSW legislation website) on which it takes effect. However, if no date is specified in the order, the order is taken to have specified the date on which it is published on the NSW legislation website as the date on which it takes effect.(3) An order is not to be made under this section unless the Minister is of the opinion that the order is in the public interest and has recommended to the Governor that the order be made.(4) A dissolution, transfer, amalgamation or change of name or nature of governance under this section may be effected without holding an inquiry.Note. Part 3 of Chapter 10 provides for the transfer by order of the Governor of public hospitals, health institutions, health services, health support services and property between local health districts and statutory health corporations.Section 116 provides for the transfer of staff between public health organisations.
44 Consequential and transitional provisions on the making of orders
(cf AHS Act ss 10 and 21 and Sch 6, PH Act ss 14, 15 and 19)
(1) Schedule 4 has effect with respect to orders made under this Part.(2) An order under this Part may contain provisions, not inconsistent with the provisions of or made under Schedule 4, of a savings and transitional nature consequent on the making of the order.
45 Provisions relating to the corporate nature of statutory health corporations
(cf AHS Act s 11, PH Act s 18 (3))
(1) A statutory health corporation:(a) has perpetual succession, and(b) is to have an official seal, and(c) may take proceedings, and be proceeded against, in its corporate name, and(d) may do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for or incidental to the purposes for which the corporation is constituted, and(e) does not represent the Crown.Note. Section 150 (1) of the Evidence Act 1995 provides for judicial notice to be taken in relation to a seal of any body established under an Act.(2) However, a statutory health corporation cannot employ any staff.Note. Staff may be employed under Part 1 of Chapter 9 in the NSW Health Service to enable a statutory health corporation to exercise its functions.
Part 2 Control and management of statutory health corporations
Division 1 Board governed health corporations
46 Constitution of health corporation boards
(cf AHS Act s 12, PH Act s 22)
(1) There is constituted a health corporation board for each board governed health corporation.(2) A health corporation board is to be called the “[name of board governed health corporation] Board”.
47 Health corporation board to control affairs of board governed health corporation
(cf AHS Act s 13, PH Act s 22 (1))
(1) The affairs of a board governed health corporation are to be controlled by the health corporation board for that corporation.(2) Any act, matter or thing done in the name of, or on behalf of, a board governed health corporation by the health corporation board for that corporation, or with the authority of that board, is taken to have been done by that corporation.
48 Health corporation board subject to control and direction of Minister
(cf AHS Act s 14, PH Act s 22A (1))
A health corporation board is subject to the control and direction of the Minister, except in relation to the contents of a recommendation or report made by the board to the Minister.
49 Membership of health corporation board
(cf AHS Act s 15, PH Act s 22 (1A))
(1) A health corporation board is to consist of the following persons:(a) the chief executive of the board governed health corporation (who holds office as an ex-officio member),(b) persons (not being less than 5 or more than 11) appointed by the Minister.(2) One of the persons appointed by the Minister is to be a member of the NSW Health Service who is employed in connection with the board governed health corporation concerned.(3) Subsection (2) does not apply to a health corporation board if less than 50 members of the NSW Health Service are employed to enable the board governed health corporation concerned to exercise its functions.
50 Provisions relating to members and procedure of boards
(cf AHS Act s 16, PH Act ss 23–27B)
Schedule 5 has effect with respect to the members and procedure of health corporation boards.
51 Appointment of chief executive
(1) There is to be a chief executive for each board governed health corporation.(2) If the position of chief executive is an executive position within the meaning of Part 3 of Chapter 9, the appointment and employment of the chief executive is subject to that Part.(3) If the position of chief executive is not an executive position within the meaning of Part 3 of Chapter 9:(a) the chief executive is to be appointed by the Minister, and(b) the chief executive is, while holding that office, to be employed under Part 1 of Chapter 9 in the NSW Health Service.(4), (5) (Repealed)(6) The affairs of a board governed health corporation are to be managed by the chief executive of the corporation.(7) The chief executive of a board governed health corporation:(a) has, and may exercise, such functions as are conferred or imposed on the chief executive by or under this or any other Act, and(b) is, in the exercise of his or her functions, subject to the control and direction of the health corporation board for the corporation.
52 Removal of members and appointment of administrator
(cf AHS Act s 18, PH Act s 26)
(1) The Governor may at any time, for any reason or no reason and without notice, by order published in the Gazette:(a) remove any member (including the chief executive) or all members of a health corporation board from office, or(b) remove all members of a health corporation board from office and appoint, as administrator of the board governed health corporation concerned, a person specified in the order for such period as may be specified in the order, or(c) remove all members of a health corporation board (other than the chief executive) from office and appoint, as administrator of the board governed health corporation concerned, the chief executive for such period as may be specified in the order.(2) The chief executive of a board governed health corporation ceases to hold office as chief executive if removed from office as a member of the health corporation board of the corporation.(3) An administrator of a board governed health corporation has and may exercise, subject to any conditions that may be specified in the order by which the administrator was appointed, all the functions of the health corporation board for that corporation.(4) An administrator of a board governed health corporation is entitled to be paid from the funds of that corporation such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the administrator.(5) The regulations may make provision with respect to administrators of board governed health corporations.(6) If the position of chief executive is an executive position within the meaning of Part 3 of Chapter 9:(a) the chief executive may not be removed from office under section 121N, and(b) section 121N applies:(i) to and in respect of a chief executive who is removed from office under this section, and(ii) to and in respect of the executive position of a chief executive who is so removed,in the same way as it applies to and in respect of a health executive who is removed from office under section 121N and to and in respect of the executive position of a health executive who is so removed.(7) (Repealed)
Division 2 Chief executive governed health corporations
52A Appointment of chief executive
(1) The Director-General may appoint a chief executive for each chief executive governed health corporation.(2) If the position of chief executive is an executive position within the meaning of Part 3 of Chapter 9, the employment of the chief executive is subject to that Part.(3) If the position of chief executive is not an executive position within the meaning of Part 3 of Chapter 9, the chief executive:(a) is, while holding that office, taken to be employed under Part 1 of Chapter 9 in the NSW Health Service, and(b) may at any time, for any reason or no reason and without notice, be removed from office by the Director-General.(4) (Repealed)
52B Chief executive to manage and control affairs of chief executive governed health corporation
(1) The affairs of a chief executive governed health corporation are to be managed and controlled by the chief executive of the corporation.(2) Any act, matter or thing done in the name of, or on behalf of, a chief executive governed health corporation by its chief executive is taken to have been done by the corporation.
52C Functions of chief executive generally
The chief executive of a chief executive governed health corporation has, and may exercise, such functions as are conferred or imposed on the chief executive by or under this or any other Act.
(1) The Minister may establish an advisory council for each chief executive governed health corporation.(2) The constitution, procedure and functions of an advisory council are to be as determined by the Minister.
52E Other committees and councils
The chief executive may establish such committees and councils as he or she considers appropriate to assist the chief executive governed health corporation in the exercise of its functions.
Division 3 Specialty network governed health corporations
52F Boards of specialty network governed health corporations
(1) A board is to be established for each specialty network governed health corporation.(2) The provisions of Division 2 of Part 2 of Chapter 3 (except section 26 (1)) apply in relation to a board of a specialty network governed health corporation in the same way as they apply to a local health district board, subject to the following modifications:(a) a reference in those provisions (however expressed) to a local health district board is to be read as if it were a reference to the board for a specialty network governed health corporation,(b) a reference in those provisions (however expressed) to a local health district is to be read as if it were a reference to a specialty network governed health corporation,(c) a reference in those provisions (however expressed) to the chief executive of a local health district is to be read as if it were a reference to the chief executive of a specialty network governed health corporation,(d) such other modifications as may be prescribed by the regulations.
52G Chief executives of specialty network governed health corporations
(1) A chief executive is to be appointed for each specialty network governed health corporation.(2) The provisions of Division 1 of Part 2 of Chapter 3 (except section 23 (1)) apply in relation to a chief executive of a specialty network governed health corporation in the same way as they apply to a chief executive of a local health district, subject to the following modifications:(a) a reference in those provisions (however expressed) to the chief executive of a local health district is to be read as if it were a reference to the chief executive of a specialty network governed health corporation,(b) a reference in those provisions (however expressed) to a local health district is to be read as if it were a reference to a specialty network governed health corporation,(c) a reference in those provisions (however expressed) to a local health district board is to be read as if it were a reference to the board of a specialty network governed health corporation,(d) such other modifications as may be prescribed by the regulations.
Part 3 Functions of statutory health corporations
53A Combined management or assistance in management of public hospitals, health institutions, health services or health support services
(1) Any two or more statutory health corporations may, by agreement, jointly control and manage any public hospital, health institution, health service or health support service.(2) A statutory health corporation may, by agreement, manage any public hospital, health institution, health service or health support service under the control of another statutory health corporation, or assist in that management, for and on behalf of that other statutory health corporation.(3) A statutory health corporation must not enter into an agreement under this section without the approval of the Minister.(4) A public hospital, health institution, health service or health support service is not, for the purposes of this or any other Act, to be regarded as being under the control of a statutory health corporation because the statutory health corporation manages, or assists in the management of, the public hospital, health institution, health service or health support service for and on behalf of another statutory health corporation.
53 Determination of functions of statutory health corporations
(cf AHS Act s 24, PH Act s 13 (4))
(1) The relevant authority may, from time to time, determine the role, functions and activities of any public hospital, health institution, health service or health support service under the control of a statutory health corporation and, for that purpose, give any necessary directions:(a) in the case of a chief executive governed health corporation, to the chief executive of that corporation, or(b) in the case of a board governed health corporation, to the health corporation board for that corporation, or(c) in the case of a specialty network governed health corporation, to the corporation.(2) Without limiting subsection (1), the Minister may direct a statutory health corporation to do any of the following if the Minister is satisfied that it is in the public interest to do so:(a) establish any hospital, health institution, health service or health support service,(b) close any public hospital or health institution, or cease to provide any health service or health support service, under its control,(c) restrict the range of health care or treatment provided by any public hospital, health institution or health service under its control.(3) In this section, relevant authority means:(a) in relation to a board governed health corporation, the Minister, and(b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Director-General.
55 Powers in relation to property
(cf AHS Act s 27, PH Act s 20)
(1) A statutory health corporation may do all or any of the following:(a) acquire land (including an interest in land), for the purpose of the exercise of its functions, by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 and acquire any other property (whether or not the land or other property is required for the purposes of any public hospital, health institution, health service or health support service under the control of the statutory health corporation),(b) sell, lease, mortgage or otherwise dispose of land or any other property,(c) dedicate land as a public road under the Roads Act 1993.(2) A statutory health corporation must not, without the approval of the Minister, do any of the following:(a) acquire land by any means,(b) dispose of land by sale, lease, mortgage or otherwise,(c) dedicate land as a public road.(3) A statutory health corporation may request the Minister to give approval to (and the Minister may approve) a disposition or dedication of land or a use of land, being a disposition, dedication or use:(a) that is contrary to a provision of, or a trust arising under, the Crown grant of that land, or(b) that, if this section had not been enacted, may make the land liable to be forfeited to the Crown.(4) If the Minister has given an approval under this section to a disposition or dedication of land, or to a use of land, neither the disposition or dedication of the land (or its subsequent use) nor the use of the land:(a) is to be regarded as a breach of any provision of, or any trust arising under, the Crown grant of that land, or(b) is to make the land liable to be forfeited to the Crown.
56 Application of Public Works Act 1912
(cf AHS Act s 28, PH Act s 21)
(1) For the purposes of the Public Works Act 1912, any acquisition of land under section 55 (1) (a) of this Act is taken to be for an authorised work and the statutory health corporation concerned is, in relation to that authorised work, taken to be the Constructing Authority.(2) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.
57 Power to accept property by gifts, devises and bequests
(cf AHS Act s 29)
(1) A statutory health corporation may acquire any property by gift, devise or bequest and may agree to and carry out the conditions of any such gift, devise or bequest, but only if the carrying out of any such conditions is not inconsistent with the purposes and functions of the corporation.(2) The rule of law against remoteness of vesting does not apply to any such condition to which a statutory health corporation has agreed.(3) A statutory health corporation may act as trustee of money or other property vested in the statutory health corporation on trust.
58 Contracts of statutory health corporations
(cf AHS Act s 30)
(1) A statutory health corporation may make and enter into contracts or agreements with any person for the performance of services, or for the supply of goods, plant, machinery or material, by that person with respect to the exercise by the statutory health corporation of its functions conferred or imposed by or under this or any other Act.(2) A statutory health corporation may also, with the approval of the relevant authority, make and enter into contracts or agreements with any person for the provision of any service by the statutory health corporation to that person.(3) Any contract or agreement under this section is taken, for the purposes of the Constitution Act 1902, to be a contract or agreement for or on account of the Public Service of New South Wales.(4) In this section, relevant authority means:(a) in relation to a board governed health corporation, the Minister, and(b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Director-General.
(cf AHS Act s 31, PH Act s 29)
(1) A statutory health corporation may invest money held by it:(a) in such manner as may be authorised by the Public Authorities (Financial Arrangements) Act 1987, or(b) if that Act does not confer power to invest money so held, in any manner authorised for the time being for the investment of trust funds and in any other manner approved by the Minister with the concurrence of the Treasurer.(2) A statutory health corporation may at any time dispose of any of its investments and apply the proceeds for the purpose of exercising its functions.(3) This section is, in relation to the investment of any funds, subject to the terms of any trust applying to those funds.
60 Statutory health corporation may make by-laws
(cf AHS Act s 32, PH Act ss 28 and 28A)
(1) Power to make by-laws
A statutory health corporation may, with the approval of the relevant authority, make by-laws, not inconsistent with this Act or the regulations, for or with respect to the following:(a) the management of any public hospital, health institution, health service or health support service under its control,(b) the provision of health services to patients of any public hospital or health institution under its control and to other persons,(c) the appointment, control and governance of visiting practitioners in connection with public hospitals, health institutions and health services under its control, including the conditions subject to which visiting practitioners may perform work at or in relation to any such hospital, institution or service,(d) (Repealed)(e) the custody and use of the seal of the statutory health corporation,(f) the keeping of records concerning its acts and decisions,(g) in the case of a board governed health corporation:(i) the keeping of records concerning the acts and decisions of the board, and(ii) the procedure for the calling of meetings of the board and for the conduct of business at those meetings,(h) the appointment and functions of its councils and committees.(2) Publication of model by-laws
The relevant authority may publish an order in the Gazette setting out the terms of model by-laws.(3) Precondition for making of by-laws
A by-law may not be made by a statutory health corporation for or with respect to any matter referred to in subsection (1) (c) unless:(a) it is in substance the same as a model by-law under an order for the time being in force under subsection (2) and the relevant authority has received advice from the Medical Services Committee in relation to the substance of the model by-law, or(b) the relevant authority has received advice from the Medical Services Committee in relation to the substance of the by-law proposed to be made by the statutory health corporation.(4) Exception to precondition
Subsection (3) does not apply to a by-law if the Medical Services Committee does not furnish advice to the relevant authority in relation to the relevant model by-law or the by-law:(a) within 30 days after a notice from the relevant authority requesting such advice has been served on the Committee, or(b) within such further period as the relevant authority may specify in the notice or in another notice served on the Committee.(5) What by-laws may provide for
A provision of a by-law may do any one or any combination of the following:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind,(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body.(6) Judicial notice
Judicial notice is to be taken of a by-law authenticated by the seal of the statutory health corporation concerned or in accordance with section 135. It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of the by-law have been complied with and performed.(7) In this section, relevant authority means:(a) in relation to a board governed health corporation, the Minister, and(b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Director-General.
61 Delegations by statutory health corporations
(cf AHS Act s 34)
(1) A statutory health corporation may delegate to any member of the NSW Health Service the exercise of any of its functions, other than:(a) this power of delegation, or(b) the power to make by-laws.Note. Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions.(2) The relevant authority may give any direction to a statutory health corporation concerning delegations under this section that the relevant authority thinks fit.(3) Nothing in this section authorises a statutory health corporation to delegate the whole of its functions to another person.(4) For the purposes of this section, the functions of a board governed health corporation include the functions of its health corporation board.(5) In this section, relevant authority means:(a) in relation to a board governed health corporation, the Minister, and(b) in relation to a chief executive governed health corporation or specialty network governed health corporation, the Director-General.