Health Services (Further Amendment) Act 1998 (Vic)

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Health Services (Further Amendment) Act 1998

Act No. 66/1998

TABLE OF PROVISIONS

Section Page

1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. Definitions 2
5. New interpretation provision inserted 5

5A. Interpretation: trust instruments 5

6. Medicare principles 5
PART 2A—PUBLIC HOSPITAL SERVICES PRINCIPLES 5
17AA. Public hospital services principles 5
7. Removal of directors 6
8. Amalgamated registered funded agencies 6
9. Aggregated hospitals 7
10. New section 65FA inserted 8

65FA. Trusts in relation to aggregated hospitals 8

11. Multi purpose services 8
12. New section 157F inserted 13

157F. Supreme Court—limitation of jurisdiction 13

13. New sections 177 and 178 inserted 13

177. Transitional provisions (1998 amendments) 14
178. Saving provision: validity of things done by trustees 14

14. Repeal of expiry provision 15
15. Charities Act 1978 15
16. Statute law revision 15

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NOTES 16

i

Victoria

No. 66 of 1998

Health Services (Further Amendment)

Act 1998†

[Assented to 4 November 1998]

The Parliament of Victoria enacts as follows:
1. Purposes
The main purposes of this Act are to amend the
Health Services Act 1988—

(a)

to provide that trusts in relation to a registered funded agency are not affected by any amalgamation or aggregation of that agency or any declaration of a multi purpose service; and

Health Services (Further Amendment) Act 1998

Act No. 66/1998 s. 2

(b) to amend the provisions relating to medicare principles; and
(c) to enable the removal of directors of metropolitan hospitals during their term of office; and
(d)
to make miscellaneous amendments to and amalgamated and aggregated bodies.

2. Commencement
(1) This Act, except section 6, comes into operation
on the day on which it receives the Royal Assent.

(2) Subject to sub-section (3), section 6 comes into

operation on a day to be proclaimed.

(3) If section 6 does not come into operation before
1 July 1999, it comes into operation on that day.

3. Principal Act

In this Act, the Health Services Act 1988 is

No. 49/1988. Reprint No. 4
called the Principal Act. as at 1 April
1998.

Subsequently amended by
Nos 73/1997,
83/1997,

13/1998, 38/1998,
46/1998 and
52/1998.

4. Definitions
In section 3(1) of the Principal Act, insert the
following definitions—
' "former agency" means—
(a) a body that was at any time—
(i) a registered funded agency; or
(ii) a multi purpose service; or

Health Services (Further Amendment) Act 1998

s. 4	Act No. 66/1998

(iii) a body declared to be a multi purpose service under section 115A(1) or deemed by force of

section 115V(2) to have been so
declared; or
(iv)
separate institution within the
meaning of the Hospitals and
Charities Act 1958 or any
an incorporated institution or a enactment—

but the incorporation of which was
cancelled or dissolved or which ceased
to exist—
(v) by force of an Order made under section 115A of this Act; or
(vi) by force of section 115V(2) of this Act; or

(vii) on its amalgamation or
aggregation with another body by
force of a provision of this Act or
of the Hospitals and Charities
Act 1958 or any previous
enactment corresponding to that
Act; or

(b) the Cancer Institute or the Cancer Institute Board under Part II of the Cancer Act 1958 as in force
immediately before 14 May 1989;
"successor agency", in relation to a former
agency, means a body that is by force of a enactment corresponding to that Act—
provision of this Act or of the Hospitals and

Health Services (Further Amendment) Act 1998

Act No. 66/1998 s. 4

(a) the successor, or deemed to be the successor, of the former agency; or
(b)
former agency (whether for all
deemed to be the same body as the trust in relation to the former agency)—

whether as a result of the body—

(c) immediately succeeding the former
agency; or
(d)
the former agency (immediately or
succeeding a body that had succeeded position in any such chain of succession;

"trust", in relation to a body that is—

(a)

aggregated or amalgamated with another body by force of a provision of this Act or of the Hospitals and Charities Act 1958 or any previous enactment corresponding to that Act;

(b)

declared to be a multi purpose service under section 115A(1) or deemed by force of section 115V(2) to have been so declared; or
(c) a former agency of such a body—

means—

(d)

a gift, disposition or trust of property made or declared, or deemed to have been made or declared; or
(e) a trust fund created—

whether by deed, will or otherwise to, or in favour of, for the use of, or for the purposes of, the body or under its terms capable of

Health Services (Further Amendment) Act 1998

s. 5	Act No. 66/1998

being given to, or applied in favour of, for
the use of, or for the purposes of, the body;'.

5. New interpretation provision inserted
After section 5 of the Principal Act insert—
"5A. Interpretation: trust instruments
If the terms of an instrument creating a trust (as defined in section 3(1)) in relation to a former agency specify particular purposes of the agency for which the trust is created, then any reference to the purposes of the former agency is a reference to the purposes (if any) of the successor agency that correspond with, or are similar to, those specified purposes of the former agency.".

6. Medicare principles
For Part 2A of the Principal Act substitute—
"PART 2A—PUBLIC HOSPITAL SERVICES
PRINCIPLES

17AA. Public hospital services principles

(1) The principles contained in any agreement in

force from time to time between the the provision of public hospital services are established as guidelines for the delivery of public hospital services in Victoria.
(2) Nothing in this Part—

(a)

gives rise to, or can be taken into account in, any civil cause of action; and

(b)

without limiting paragraph (a), operates to create in any person legal rights not in existence before the commencement

Health Services (Further Amendment) Act 1998

Act No. 66/1998 s. 7
of section 6 of the Health Services (Further Amendment) Act 1998.
(3) In this Part, a reference to public hospital

services includes a reference to services
provided to public hospital patients by
privately-operated hospitals.".

7. Removal of directors

(1) In section 40G(2) of the Principal Act, after

"director" insert ", or all directors,".

(2) In section 40G(3) of the Principal Act, for "may
not recommend the removal of a director of a
board from office unless" substitute "must
recommend the removal of a director of a board
from office if".

8. Amalgamated registered funded agencies
(1) In section 65(2) of the Principal Act, at the end of
paragraph (d) insert—
"; and

(e)
on and from that date, each registered funded taken, for the purposes of any trust in relation to that agency, not to have had its incorporation cancelled or to have ceased to exist and the new registered funded agency must be taken to be the same body as that agency for those purposes; and

(f) without limiting the effect of paragraph (e), on and from that date, an instrument creating a trust in relation to—
(i) a registered funded agency to which the Order relates; or
(ii) a former agency of which such a registered funded agency is the successor agency—

Health Services (Further Amendment) Act 1998

s. 9	Act No. 66/1998

continues to have effect according to its
tenor as if the trust were in relation to the
new registered funded agency.".
(2) After section 65(5) of the Principal Act insert—
"(6) Sub-section (2), as amended by section 8(1)
of the Health Services (Further respect to—

(a)
an Order made under sub-section (1) section of that Act; and

(b)

an instrument of a kind referred to in sub-section (2)(f) of this section—
in the same way as it would if it had been in always had that effect on and from that time.".
force as so amended at the time when the

9. Aggregated hospitals
(1) In section 65D of the Principal Act, at the end of
paragraph (c) insert—
"; and

(d)

on and from the effective date of the Order, an aggregated hospital to which the Order relates must, for the purposes of any trust in relation to that hospital, be taken not to have had its incorporation cancelled and the new hospital must be taken to be the same body as the aggregated hospital for those purposes.".

(2) At the end of section 65F of the Principal Act
insert—
"(2) Without limiting the effect of sub-section
(1), on and from the effective date of an

Health Services (Further Amendment) Act 1998

s. 10
s. 11

Act No. 66/1998

Order under section 65C, an instrument creating a trust in relation to—

(a)

an aggregated hospital to which the Order relates; or

(b)

a former agency of which such an aggregated hospital is the successor agency—
continues to have effect according to its
tenor as if the trust were in relation to the
new hospital.".

10. New section 65FA inserted
After section 65F of the Principal Act insert—
"65FA. Trusts in relation to aggregated hospitals
Sections 65D and 65F, as amended by section 9 of the Health Services (Further Amendment) Act 1998, have effect with respect to—

(a)

an Order made under section 65C before the commencement of that section of that Act; and

(b)

an instrument of a kind referred to in section 65F(2)—
in the same way as they would if they had
been in force as so amended at the time when
the Order was made and must be taken to
have always had that effect on and from that
time.".

11. Multi purpose services

(1) After section 115A(1) of the Principal Act

insert—

Health Services (Further Amendment) Act 1998
Act No. 66/1998

"(1A) Without limiting sub-section (1), an Order made under that sub-section may provide that on and from the date specified in the Order as the date on which the Order takes
effect—

(a) all property and rights of a body to which the Order relates, wherever located, vest in the multi purpose service;
(b) all liabilities of the body, wherever located, become liabilities of the multi purpose service;
(c) the multi purpose service becomes the successor in law of the body;
(d) except for the purposes of any trust in relation to the body, the incorporation of the body is cancelled or the body
ceases to exist (as the case requires).

(1B) An Order under sub-section (1) has effect as

if, on and from the date specified in the effect—

(a) for the purposes of any trust in relation to the body, the multi purpose service is the same body as the body to which the Order relates; and
(b) without limiting the effect of paragraph (a), an instrument creating a trust in relation to—
(i) the body to which the Order relates; or
(ii) a former agency of which that body is the successor agency—

Health Services (Further Amendment) Act 1998

Act No. 66/1998 s. 11
continues to have effect according to its
tenor as if the trust were in relation to
the multi purpose service.".

(2) After section 115A(2) of the Principal Act

insert—
"(3) An Order made under this section before the
commencement of section 11(1) of the Act 1998 has, and must be taken to have always had, effect as if on and from the date specified in the Order as the date on which the Order took effect—

(a)

all property and rights of the body to which the Order relates, wherever located, vested in the multi purpose service referred to in the Order;

(b)

all liabilities of the body, wherever located, became liabilities of the multi purpose service;

(c)

the multi purpose service became the successor in law of the body;

(d)

except for the purposes of any trust in relation to the body, the incorporation of the body was cancelled.".
(3) At the end of section 115A of the Principal Act
insert—
"(4) On and from the date on which an Order
referred to in sub-section (3) took effect—

(a)

for the purposes of any trust in relation to the body, the multi purpose service referred to in the Order is, and must be taken to have always been, the same body as the body to which the Order relates; and

Health Services (Further Amendment) Act 1998

s. 11

Act No. 66/1998

(b) without limiting the effect of paragraph (a), an instrument creating a trust in relation to—
(i) the body to which the Order relates; or
(ii) a former agency of which that body is the successor agency—

continues, and must be taken to have
always continued, to have effect
according to its tenor as if the trust
were in relation to the multi purpose
service.".

(4) In section 115U(2) of the Principal Act, at the end
of paragraph (d) insert—
"; and

(e) on and from that date, each registered funded agency or multi purpose service to which the Order relates must be taken, for the purposes of any trust in relation to that agency or
service, not to have had its incorporation
cancelled or to have ceased to exist and the
new body must be taken to be the same body
as that agency or service for those purposes;
and
(f) without limiting the effect of paragraph (e), on and from that date, an instrument creating a trust in relation to—
(i) a registered funded agency or multi purpose service to which the Order relates; or
(ii) a former agency of which such a registered funded agency or multi

Health Services (Further Amendment) Act 1998

Act No. 66/1998 s. 11
purpose service is the successor
agency—
continues to have effect according to its
tenor as if the trust were in relation to the
new body.".

(5) After section 115U(3) of the Principal Act

insert—
"(4) Sub-section (2), as amended by section 11(4)
of the Health Services (Further respect to—

(a)
an Order made under sub-section (1) section of that Act; and

(b)

an instrument of a kind referred to in sub-section (2)(f) of this section—
in the same way as it would if it had been in always had that effect on and from that time.".
force as so amended at the time when the
(6) In section 115V(6) of the Principal Act, at the end
of paragraph (c) insert—
"; and

(d) on and from the appointed day, the multi purpose service must be taken, for the purposes of any trust in relation to the body it was before the appointed day, to be the same body as that body; and
(e) without limiting the effect of paragraph (d), on and from the appointed day, an instrument creating a trust in relation to—
(i) the body that the multi purpose service was before the appointed day; or

Health Services (Further Amendment) Act 1998

s. 12

s. 13

Act No. 66/1998

(ii) a former agency of which such a body is the successor agency—

continues to have effect according to its
tenor as if the trust were in relation to the
multi purpose service.".
(7) At the end of section 115V of the Principal Act
insert—
"(7) Sub-section (6), as amended by section 11(6)
of the Health Services (Further respect to—

(a)

a declaration that is by force of sub- section (2) of this section deemed to have been made; and

(b)

an instrument of a kind referred to in sub-section (6)(e) of this section—
in the same way as it would if it had been in
force as so amended at the time that the
declaration was deemed to have been made
and must be taken to have always had that
effect on and from that time.".

12. New section 157F inserted
After section 157E of the Principal Act insert—
"157F. Supreme Court—limitation of jurisdiction
It is the intention of sections 17AA(2) (as
substituted by section 6 of the Health
Services (Further Amendment) Act 1998)
and 178 to alter or vary section 85 of the
Constitution Act 1975.".

13. New sections 177 and 178 inserted
After section 176 of the Principal Act insert—

Health Services (Further Amendment) Act 1998

Act No. 66/1998

'177. Transitional provisions (1998 amendments)
(1) The amendments of section 40G made by section 7 of the Health Services (Further Amendment) Act 1998 apply to any person
holding office as director of a board of a
metropolitan hospital immediately before the
commencement of that section as well as to
directors appointed on or after that
commencement.
(2) The amendments of this Act made by the Health Services (Further Amendment) Act 1998 (other than sections 6 and 7 of that
Act) apply with respect to a trust (as defined in section 3(1)) in relation to a body, whether the trust was created before, on or after the
commencement of section 13 of that Act.".
178. Saving provision: validity of things done by trustees
(1) Anything done or omitted to be done before

the commencement day by a trustee of a trust
(as defined in section 3(1)) that would not
have constituted a breach of trust had the
Health Services (Further Amendment)
Act 1998 been enacted at the time at which
the thing was done or omitted to be done is
not to be regarded as constituting a breach of
trust and the trustee is not liable for breach
of trust on account of that act or omission.

(2) Nothing effected by the Health Services (Further Amendment) Act 1998 is to be regarded as making a trustee of a trust (as defined in section 3(1)) liable for breach of
trust on account of anything done or omitted to be done before the commencement day by the trustee that would not have constituted a breach of trust had the Health Services

Health Services (Further Amendment) Act 1998

s. 14

Act No. 66/1998

(Further Amendment) Act 1998 never
been enacted and on and from that day the
trustee is not liable for breach of trust on
account of that act or omission.
(3) In this section "commencement day"
means the day on which section 13 of the Health Services (Further Amendment) Act 1998 comes into operation.'.

14. Repeal of expiry provision

No. 99/1998.

Section 22 of the Miscellaneous Acts (Health
and Justice) Amendment Act 1995 is repealed.

15. Charities Act 1978

No.

9227/1978.	(1) In section 2(3) of the Charities Act 1978, after
Reprint No. 1	"scheme" insert ", by or under an Act".
as at
2 December
1992.

(2) After section 2(4) of the Charities Act 1978
insert—
"(5) This section applies to an alteration or
regulation by or under an Act of the original
purposes of a gift made before, on or after
the commencement of section 15(1) of the
Health Services (Further Amendment)
Act 1998.".

16. Statute law revision
In sections 115N and 115T(2) of the Principal Act, for "Chief General Manager" substitute "Secretary".

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Health Services (Further Amendment) Act 1998

Act No. 66/1998 Notes

NOTES

†
Minister's second reading speech—
Legislative Assembly: 3 September 1998
Legislative Council: 21 October 1998
The long title for the Bill for this Act was "to amend the Health Services
Act 1988 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 3 September 1998
Legislative Council: 21 October 1998
Absolute majorities:
Legislative Assembly: 8 October 1998
Legislative Council: 28 October 1998

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Health Services (Further Amendment) Act 1998 (Vic)

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1.	Purposes	1
2.	Commencement	2
3.	Principal Act	2
4.	Definitions	2
5.	New interpretation provision inserted	5

6.	Medicare principles	5
PART 2A—PUBLIC HOSPITAL SERVICES PRINCIPLES	5
17AA. Public hospital services principles	5
7.	Removal of directors	6
8.	Amalgamated registered funded agencies	6
9.	Aggregated hospitals	7
10.	New section 65FA inserted	8

177.	Transitional provisions (1998 amendments)	14
178.	Saving provision: validity of things done by trustees	14

14.	Repeal of expiry provision	15
15.	Charities Act 1978	15
16.	Statute law revision	15

(b)	to amend the provisions relating to medicare principles; and
(c)	to enable the removal of directors of metropolitan hospitals during their term of office; and
(d)

In this Act, the Health Services Act 1988 is	No. 49/1988. Reprint No. 4
called the Principal Act.	as at 1 April 1998.
Subsequently amended by
Nos 73/1997, 83/1997,
13/1998, 38/1998,
46/1998 and 52/1998.

section 115V(2) to have been so declared; or
(iv)	separate institution within the meaning of the Hospitals and Charities Act 1958 or any

(vii)	on its amalgamation or aggregation with another body by force of a provision of this Act or of the Hospitals and Charities Act 1958 or any previous enactment corresponding to that Act; or
(b)	the Cancer Institute or the Cancer Institute Board under Part II of the Cancer Act 1958 as in force

(a)	the successor, or deemed to be the successor, of the former agency; or
(b)	former agency (whether for all

(c)	immediately succeeding the former agency; or
(d)	the former agency (immediately or

(a)	aggregated or amalgamated with another body by force of a provision of this Act or of the Hospitals and Charities Act 1958 or any previous enactment corresponding to that Act;
(b)	declared to be a multi purpose service under section 115A(1) or deemed by force of section 115V(2) to have been so declared; or

(a)	gives rise to, or can be taken into account in, any civil cause of action; and
(b)	without limiting paragraph (a), operates to create in any person legal rights not in existence before the commencement

Act No. 66/1998	s. 7
of section 6 of the Health Services (Further Amendment) Act 1998.

(a)	an aggregated hospital to which the Order relates; or
(b)	a former agency of which such an aggregated hospital is the successor agency—

(a)	an Order made under section 65C before the commencement of that section of that Act; and
(b)	an instrument of a kind referred to in section 65F(2)—

(a)	all property and rights of a body to which the Order relates, wherever located, vest in the multi purpose service;
(b)	all liabilities of the body, wherever located, become liabilities of the multi purpose service;
(c)	the multi purpose service becomes the successor in law of the body;
(d)	except for the purposes of any trust in relation to the body, the incorporation of the body is cancelled or the body

(1B) An Order under sub-section (1) has effect as	if, on and from the date specified in the effect—
(a)	for the purposes of any trust in relation to the body, the multi purpose service is the same body as the body to which the Order relates; and
(b)	without limiting the effect of paragraph (a), an instrument creating a trust in relation to—

Act No. 66/1998	s. 11
continues to have effect according to its tenor as if the trust were in relation to the multi purpose service.".

(a)	all property and rights of the body to which the Order relates, wherever located, vested in the multi purpose service referred to in the Order;
(b)	all liabilities of the body, wherever located, became liabilities of the multi purpose service;
(c)	the multi purpose service became the successor in law of the body;
(d)	except for the purposes of any trust in relation to the body, the incorporation of the body was cancelled.".

(e)	on and from that date, each registered funded agency or multi purpose service to which the Order relates must be taken, for the purposes of any trust in relation to that agency or
service, not to have had its incorporation cancelled or to have ceased to exist and the new body must be taken to be the same body as that agency or service for those purposes; and
(f)	without limiting the effect of paragraph (e), on and from that date, an instrument creating a trust in relation to—

Act No. 66/1998	s. 11
purpose service is the successor agency—

(d)	on and from the appointed day, the multi purpose service must be taken, for the purposes of any trust in relation to the body it was before the appointed day, to be the same body as that body; and
(e)	without limiting the effect of paragraph (d), on and from the appointed day, an instrument creating a trust in relation to—

(a)	a declaration that is by force of sub- section (2) of this section deemed to have been made; and
(b)	an instrument of a kind referred to in sub-section (6)(e) of this section—